MANAGING LCA ISSUES DURING THE GOVERNMENT SHUTDOWN

The issues described in this MU Visa Advisor are complex and very much driven by the facts of your case.  Please do not hesitate to contact MU Law if you have any questions about these issues.

The Federal Government Shutdown has caused the Department of Labor to furlough about 80% of its workforce.  As a result the DOL’s iCert System, which is the manner through which LCAs are filed, has been turned off.  It is impossible to file LCAs, leading to many questions from H-1B employers. 

Background: The LCA System

The Labor Condition Application (LCA) is the centerpiece of the H-1B program.  It serves two primary functions.  First, it forces the H-1B employer to certify that the wage that it is offering to pay the H-1B worker is not lower than similar US workers.  Second, the LCA includes a mandatory mechanism whereby H-1B employers must notify potential US workers of their right to contact the Department of Labor (DOL) if they believe that the H-1B employer is engaging in prohibited behavior.

There are two ways that the LCA is utilized in the H-1B process.  First, new H-1B petitions must be submitted with an LCA that has been certified by the DOL.  Second, if an employee is going to change worksites, the employer must provide new Notice to the workers at this new worksite.  In some instance, the H-1B employer must file a new LCA with the DOL and wait the seven days for the DOL to certify the new LCA.  In other instances, the H-1B employer must not only obtain a new certified LCA but must also file a new H-1B.

The Government Shutdown

Unfortunately with the government shutdown the DOL has shuttered the LCA system.  It is impossible to file LCAs.  The DOL has not given the public any guidance on how to handle new H-1B petitions nor how to handle new situations where a new LCA is required.

On account of the fact that LCAs cannot be filed, H-1B employees should not change worksites in instances where a new LCA would normally be required.  This is the safest approach.  Once the government shutdown ends, H-1B employers can file an LCA and the employee can move once the new LCA is certified and in place.

On the bright side there are some instances when a new LCA is not required. 

• 1.       When H-1B workers change worksites, but the new worksite is still within the prior LCA metropolitan area, a new LCA is not required.  An H-1B employer must still post notice at the new worksite. 
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• 2.      The LCA rules allow H-1B employees to work at new worksites when the new worksite is peripatetic or very short-term.  For example a new certified LCA is not required if an H-1B employee is attending meetings for a few days in a new location.

If business needs demand that an H-1B must change worksites, then the H-1B employer must be aware that it may be technically violating law, although a legal argument could be made that compliance with the law was impossible on account of the shutdown.  Penalties can range from $1,000 - $35,000 per violation.  Debarment from the H-1B program could also occur.  After considering these potential penalties, an H-1B employer still feels compelled to move the H-1B worker, we urge that H-1B employers take all three of these additional measures to mitigate risk:

·         Make sure to post LCA posting.  Even though we would not be able to file an LCA, we would still be able to post Notice at the destination worksite.  We can prepare the Notice Posting for you.

·         File an LCA at the conclusion of the shutdown.

·         File an amended H-1B at the conclusion of the shutdown and the certification of the new LCA.

US GOVERNMENT SHUTDOWN IMPACTS SOME IMMIGRATION SERVICES

Congress’ failure to establish a budget for Fiscal Year 2014 (start date, October 1, 2013) has an impact on some areas of immigration.  If you have any questions about how the government shutdown may impact your petitions, please contact Musillo Unkenholt.

United States Citizenship and Immigration Services:  USCIS operations continue despite the Federal Government shutdown, because fee-for-service activities performed by USCIS are not affected by a lapse in annual appropriated funding.  H-1B, L-1, I-140, and I-485 petitions and applications are expected to continue processing with little impact as a result of the federal government’s shutdown.

All USCIS offices worldwide are open for interviews and appointments as scheduled. E-Verify is an exception and is unavailable during the shutdown. For more information about how the shutdown is effecting E-Verify please visit www.dhs.gov/e-verify.

Department of Labor: Most DOL functions that impact immigration will stop working as a result of the federal shutdown.  The DOLwill neither accept nor process any applications or related materials (such as audit responses), it receives, including Labor Condition Applications, Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification. The DOL’s web site, including the iCERT Visa Portal System and the PERM system, have become static and are unable to process any requests or allow authorized users to access their online accounts.

Department of State: The Department will continue as many normal operations as possible; operating status and available funding will need to be monitored continuously and closely, and planning for a lapse in appropriations must be continued. Visa issuance will be available in consulates that have adequate funding to continue operating.  Please contact our office to determine if the consulate you plan to attend will continue operating. 

Customs and Border Patrol: Inspection and law enforcement are considered "essential personnel," though staffing may be more limited than usual.  The borders will be open, and CBP is unsure of how the shutdown will affect the processing of applications filed at the border at this time.

State Agencies:  State agencies, such as driver’s licenses and professional licenses (e.g. Registered Nurse, Physical and Occupational Therapy licenses), are not impacted by the federal shutdown.

BREAKING! SENATE PASSES CIR

MU VISA ADVISOR: BREAKING! SENATE PASSES CIR

Today the Senate took the historic step of passing Comprehensive Immigration Reform, Senate bill S. 744 by a vote of 68-32.  This is a significant step on the path to the bill becoming law.  It is important to note that nothing has changed with this action.  While we are much closer, we are still quite a ways from any legal change.  The House must act.  The House is more conservative than the Senate. 

S. 744 does many things.  Many of the specifics will change as the House takes action.  Therefore it is much too early for employers to plan for CIR. 

What the House will do is a wide-open question.  The House will likely move slowly.  There are many factions of Republicans who are struggling to reconcile their disparate opinions.  If the Republicans can agree on the House side, then a House CIR bill could pass. 

Even if that happens, there is no guarantee that the senate and House bills can be reconciled.  At this point the odds are 50/50 that we get CIR in 2013, and the odds improved significantly with today’s Senate vote.

MU Law has been to Washington on several occasions in the last 90 days to speak with Congressional staff about employment-based immigration issues.  While no one knows what the final CIR bill will look like, but if CIR passes it will have these characteristics:

Greater H-1B visa numbers.  Current law allows 65,000 new “regular” H-1B visa approvals every fiscal ear and an additional 20,000 for graduates of American Master’s degree programs.  American businesses have regularly asked Congress to raise this H-1B quota.  Congress is hearing the call.  Most potential legislation calls for increased H-1B numbers.

Increased H-1B Enforcement. The trade-off for the greater H-1B numbers is greater enforcement regulation.  All versions of CIR step up funding for H-1B enforcement.

Special Third Party Placement Rules for H-1B Employers. Since January 2012, USCIS has held staffing companies to a higher level of scrutiny. Congress is now going further.  Placing employees at third-party worksites is outright prohibited for some employers and highly regulated in others.  

Abundant Green Card Numbers.  By increasing green card numbers, Congress hopes to incentivize employers and workers to become permanent residents. . This should mean faster green cards and less worrying about quotas.

E-Verify is here to stay.  E-verify is a federal program whereby voluntary employers can check a prospective employee’s work authorization.  Government contractors and some states have made E-verify mandatory.  Congress appears ready to require E-verify for all employers, likely phasing it in over a few years.

Shifting from Family Based Visa Numbers to Merit Based Immigrants.  One part of the CIR plan is that Congress appears to have settled on a merit-based green card.  A merit-based system would allow the Department of Homeland Security to weigh a number of factors, such as education, job prospects, US ties, and English fluency to prioritize an applicant’s visa.  The merit based system will come at the expense of the family categories and will eliminate the visa lottery program.

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

ELECTRONIC I-94 CARDS

MU VISA ADVISOR: ELECTRONIC I-94 CARDS

In May, U.S. Customs and Border Protection (CBP) began implementing its plan to automate the Form I-94, Arrival/Departure Record.  CBP is substituting paper Forms I-94 with a passport stamp and an electronic record for some nonimmigrants arriving at air and sea ports.    Nonimmigrants arriving via a land border will continue to receive a paper Form I-94 from CBP.

The electronic record of admission may be accessed and printed at www.cbp.gov/I94.  Nonimmigrants are encouraged to print out their I-94 arrival record immediately after entry in order to insure that the information has been correctly inputted into the CBP electronic system.  If the information is incorrect, please contact us immediately.

MU Law employer-clients are encouraged to share this MU Visa Advisor with relevant employees.

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

MU VISA ADVISOR: SENATE CIR OUTLINE RELEASED

An Outline of the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013, which is the Senate’s "Gang of Eight" bill, has been released.  MU Law has posted a copy of the 17-page Outline on our Doc Stoc page.

It is important to recognize that this is just an Outline.  Several of the Outline's bullet points are inconsistent and outright contradictory with other bullet points.  It is also important to note that the bill is far from becoming law.  The Senate will have hearings to amend the bill throughout April and May. 

If the bill passes the Senate Judiciary Committee and the Senate as a whole, a separate Comprehensive Immigration Reform bill will be announced in the House of Representatives.  The House bill will also have to pass that chamber and then be remedied with the Senate bill.  Only then will it be presented to President Obama for signature.  The key take-away is that this bill is still many steps from becoming law. 

Keeping in mind that the final CIR may look different than this one, this MU Law Visa Advisor only highlights several key items that will be of interest to our clients and friends.  Also, although the 17-page Oultine includes sections on Border Protection and Undocumented Worker Legalization we have not summarized these areas of the law in this MU Law Visa Advisor since they are of lesser interest to our clients and friends.  

Here is the brief MU Law Summary of the Senate's CIR bill:

EMPLOYMENT-BASED GREEN CARDS
-          The Senate CIR bill calls for an immediate elimination of retrogression for currently-pending green card applications.  If this provision is true as listed in the Summary hundreds of thousands of long-delayed EB-2 and EB-3 applications would be immediately eligible for Adjustment of Status, Immigrant Visa appointments, and Green card issuance.  It is unclear how the USCIS and State Department would handle this immense overload of applications.
-          Going forward employment-based green card numbers would dramatically increase.  Theoretically this could mean that future retrogression is small.

EMPLOYMENT VERIFICATION
-          All employers will be required to use E-verify over a five-year phase in period, which will include enhanced photographic measures.

H-1B / L-1 VISAS
-          The H-1B visa cap will increase to 110,000, and can increase to 180,000 over seven years.
-          Spouses of H-1B visa holders will gain work eligibility.
-          H-1B prevailing wage rules may be changing, mandating higher wages for H-1B workers.  It is somewhat unclear in the Outline to what extent the prevailing wage rules will change.
-          Employers with more than 50 employees and who have 50% of their workforce who (a) hold H-1B and/or L-1 and (b) who do not have a green card pending, must pay an additional $10,000 in H-1B / L-1 filing fees.
-          Employers with more than 50 employees and who have 30% of their workforce who (a) hold H-1B and/or L-1 and (b) who do not have a green card pending, must pay an additional $5,000 in H-1B / L-1 filing fees.
-          By 2016 any employer who has more than 50% of its workforce on H-1B / L-1 status will be ineligible to petition for H-1B and/or L-1 visas.

-          All employers who wish to hire an H-1B must advertise the position on a government database for 30 days.

H-1B CAP LOTTERY ANNOUNCED

The USCIS has reached the statutory H-1B cap of 65,000 for fiscal year 2014 (H-1B Regular Cap). USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption (H-1B Masters Cap). This is the first year since FY 2008 that the cap has been reached so quickly. 

USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing. 

F-1 students who wish to use the "cap-gap" rules must be lottery winners. F-1 students who do not win the lottery must exit the US at the conclusion of their F-1 period.

MU VISA ADVISOR: H-1B CAP HAS BEEN REACHED

MU VISA ADVISOR: H-1B CAP HAS BEEN REACHED

On Friday the USCIS announced that the H-1B cap has been reached.  The USCIS will hold a lottery and return any petitions for Beneficiaries who do not win the lottery along with all filing fees.

F-1 students who wish to use the "cap-gap" rules must be lottery winners. F-1 students who do not win the lottery must exit the US at the conclusion of their F-1 period. 

H-1B cap-subject petitions include:

* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school

* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case
 

* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1
 

* H-1B workers with a cap exempt organization
 

* Prospective international employees currently living abroad

H-1B petitions that are not subject to the H-1B cap include:

* H-1B extension petitions

* H-1B transfer petitions

* Certain H-1B petitioners for University employers

* Certain H-1B petitions for Non-Profit Research organizations

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

MU VISA ADVISOR: H-1B CAP TO BE REACHED ON DAY ONE

In a March 15, 2013 press release, the USCIS announced, “based on feedback from a number of stakeholders, USCIS anticipates that it may receive more petitions than the H-1B cap between April 1, 2013 and April 5, 2013.”

Any H-1B cap–subject petition that is filed between April 1 and April 5 is treated as a first-day filing.  In accord with this information, MU Law strongly urges all clients to be prepared to file their H-1B cap-subject petitions ASAP. 

MU Law clients are reminded that all H-1B petitions must include a certified Department of Labor - Labor Condition Application (LCA).  The LCA takes 8 days to be certified, and so any H-1B cap-subject petition that is not initiated at our office by March 24, 2013 will not accepted in this year’s H-1B cap.

If the USCIS is correct and more than the 65,000 H-1B cap-subject petitions are reached on the first day, the USCIS will hold a lottery and return any H-1B petitions that are not lottery ‘winners’.  The USCIS will also refund the entire H-1B filing fee.

H-1B cap-subject petitions include:
* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school
* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case
* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1
* H-1B workers with a cap exempt organization
* Prospective international employees currently living abroad

H-1B petitions that are not subject to the H-1B cap include:
* H-1B extension petitions
* H-1B transfer petitions
* Certain H-1B petitioners for University employers
* Certain H-1B petitions for Non-Profit Research organizations

MU VISA ADVISOR:   H-1B TELECONFERENCE FEB 13

In anticipation of the H-1B cap filing date of April 1, 2013, MU Law will be holding a free teleconference for our clients on February 13, 2013 at 2PM / 11AM PT.  Interested clients should email MU’s Lauren Gramke, who can register you for the teleconference.

Last year the H-1B cap was reached on June 11, 2012; we expect that the demand will be greater this year.  It is imperative that all H-1B cap-subject Petitions are filled on April 1, 2013 in order to insure that the H-1B Petition qualifies under this year’s H-1B cap.

H-1B cap-subject petitions include:
* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school
* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case
* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1
* H-1B workers with a cap exempt organization
* Prospective international employees currently living abroad
In addition to the H-1B cap discussion, MU lawyers will also provide an employment-based immigration legislation update.

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

INDIAN NATIONALS MAY AVOID VISA INTERVIEW

The US Embassy-India has begun a program where H-1B renewal applicants in India no longer need to attend a visa interview for their H-1B visa extension.  This waiver of the interview process is a welcome relief for Indian nationals who increasingly have had difficulty extending US H-1B visas.

The new program allows repeat travelers who are extending their H-1Bs to avoid the visa interview if the prior visa is in the same classification with the same petitioner and is still valid or expired within the last 12 months.

Applicants for this visa interview waiver programs may apply on the US Embassy – New Delhi website.

Applicants must meet these criteria:

If you can answer “yes” to the following questions, you qualify for the Interview Waiver Program “Dropbox” at one of the 11 service centers.

·         I received my visa after November 1, 2008
·         I have a previous U.S. visa in the same class as the visa for which I wish to renew
·         My previous visa was issued in India
·         My most recent visa (in the same visa class for which I am applying) was issued on or after my 14th birthday
·         I have no refusals for a visa in any category after my most recent visa issuance
·         If I am applying for a B1/B2, C1D, F, or J visa, my prior visa in the same classification is still valid or expired within the last 48 months
·         If I am applying for an H or L (individual) visa, my prior visa in the same classification with the same petitioner is still valid or expired within the last 12 months. Note: L (Blanket) visa does not qualify.
·         My prior visa is not annotated “Clearance Received”
·         My most recent visa (in the same visa class for which I am applying) was not lost or stolen

The webpage contains this Note: Using the interview waiver or drop box service does not guarantee visa issuance. In some cases, you may be required to appear for a visa interview at the U.S. Embassy/Consulate, for example, if you submit an incomplete and/or inaccurate application. Submit your application well in advance of your planned travel to allow for the possibility that a visa interview will be necessary.

Other visa categories may also apply for the waiver of an interview:

·         Business/Tourism (B1 and/or B2);
·         Dependent (J2, H4, L2)
·         Transit (C) and/or Crew Member (D) - including C1/D.
·         Children applying before their 7th birthday traveling on any visa class
·         Applicants applying on or after their 80th birthday traveling on any visa class
·         Children applying before their 14th birthday traveling on any visa class
·         Students returning to attend the same school and same program
·         Temporary workers on Individual L1-A or Individual L1-B visas

H-1B CAP DEADLINE EXPECTED JUNE 10

The H-1B cap count has passed the halfway mark. 36,700 H-1B cap-subject petitions have been received as of May, 11, which is the most recent USCIS update. MU currently is projecting that the H-1B cap of 65,000 will be reached around June 10.

MU clients are encouraged to initiate their H-1B Petitions by May 25 in order to insure that their H-1B cap-subject petitions are received at the USCIS before the deadline.

Employees that need a "cap-subject" H-1B include:

* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school

* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case

* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1

* H-1B workers with a cap exempt organization

* Prospective international employees currently living abroad

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue or if you would like to have any other member of your organization added to our email service, MU Visa Advisor.

H-1B CAP OPENS APRIL 2

The Fiscal Year 2013 (FY2013) H-1B cap season will begin on Monday April 2, 2012. For the last several years the H-1B cap season has averaged nine months before all 65,000 H-1B regular cap slots were used. Because of improvements in the US economy, MU Law expects that the 65,000 H-1B regular cap slots will be used by Summer 2012, perhaps as soon as May 2012.

MU lawyers have informally polled our clients and other AILA attorneys in an attempt to gauge the duration of this year’s H-1B season. Based on these conversations, MU Law's best estimate is that the H-1B visa quota will be exhausted in June/July of 2012, although some prognosticators think it could be reached in May 2012. We will make regular updates to our client base as the USCIS releases information about cap usage.

Additionally, MU Law expects that the 20,000 H-1B US Masters Cap will be used quicker than the H-1B regular cap. This is not a great concern because any US Masters Graduates who do not obtain a slot in the H-1B US Masters cap can apply for an H-1B regular cap slot.

Any cap-subject H-1B petition that is filed after April 1 allows the Beneficiary to begin working in H-1B status on October 1, 2012. Students who hold F-1 OPT student status can remain with valid work authorization through October 1, 2012, provided that their H-1B Petition is field and accepted by USCIS.

Because of the uncertainty in these estimates, MU Law urges all clients immediately to initiate H-1B cap-subject petitions. H-1B cap-subject petitions include:

· New overseas H-1B hires

· Beneficiaries on another nonimmigrant status, such as H-4, L-1, or F-1.

· H-1B workers who hold H-1B cap-exempt status by virtue of the filing of the H-1B with a University or research facility.

H-1B CAP REACHED

The USCIS announced that the Fiscal Year 2012 H-1B cap was reached onNovember 22, 2011. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2012 that arrive after November 22, 2011.

International workers who are working in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

Employees that need a "cap-subject" H-1B must wait to file their Petition untilApril 1, 2012, for an employment start date of October 1, 2012. "Cap-subject" H-1B petitions include:

* International students working on an EAD card under an OPT or CPTprogram after having attended a U.S. school

* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case

* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1

* H-1B workers with a cap exempt organization

* Prospective international employees currently living abroad

H-1B CAP MAY BE REACHED BEFORE THE END OF NOVEMBER

MU VISA ADVISOR:   H-1B CAP MAY BE REACHED BEFORE THE END OF NOVEMBER

MU clients are urged to initiate and file any regular cap-subject H-1B cases as soon as possible.  MU now believes that the H-1B cap may be reached before the end of November.

The latest USCIS update is that 56,300 of the 65,000 regular H-1B numbers have been used as of November 14, 2011, leaving about 8,000 H-1B visas.    The demand for H-1B numbers has surged in the last few weeks.

Employees that may need an H-1B visa include:

* International students working on an EAD card under an OPT or CPT program after having attended a U.S. school
* International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case
* Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1
* H-1B workers with a cap exempt organization
* Prospective international employees currently living abroad

International workers who are working in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap.  These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

The USCIS sets aside an additional 20,000 H-1B numbers for graduates of US Masters degree (or higher) programs through a program referred to as the “H-1B Masters Cap”.  The H-1B Masters Cap has been reached.  H-1B Masters Cap petitions are now also counted against the regular H-1B cap.

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue.  If any member of your company would like to be added to the MU Visa Advisor mailing list, please contact us.

H-1B CAP TO BE REACHED IN DECEMBER

MU VISA ADVISOR: H-1B CAP TO BE REACHED IN DECEMBER

MU clients are urged to initiate and file any regular cap-subject H-1B cases as soon as possible. MU predicts that the H-1B cap will be reached in December 2011.

The latest USCIS update is that 49,200 of the 65,000 regular H-1B numbers have been used as of October 28, 2011, leaving 15,800 H-1B visas. Based on prior year’s usage, MU expects that the demand will rise again in November. The demand for H-1B numbers historically has spiked as the H-1B number grows closer to 65,000.

Employees that may need an H-1B visa include:

• International students working on an EAD card under an OPT or CPT program after having attended a U.S. school
• International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case
• Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exempt organization
• Prospective international employees currently living abroad

International workers who are working in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “H-1B transfer” cases and may be filed at any time throughout the year.

The USCIS sets aside an additional 20,000 H-1B numbers for graduates of US Masters degree (or higher) programs through a program referred to as the “H-1B Masters Cap”. The H-1B Masters Cap has been reached. H-1B Masters Cap petitions are now also counted against the regular H-1B cap.

MU Visa Advisor: UPDATE! USCIS I-797 Approval Notice Policy Change

Earlier this week, MU Law notified you of a USCIS policy change, in which the USCIS was sending I-797 Approval Notices to Petitioners and Beneficiaries, instead of sending these documents to the Petitioners and Beneficiaries' designated representatives and lawyers.

In a quick break from this policy, USCIS Director Mayorkas just has announced that the USCIS will revert back to the long-standing policy of sending I-797 Approval Notices to the Petitioners and Beneficiaries' representatives and lawyers. MU Law applauds this reversion of policy. The USCIS is often lambasted for ill-thought out policy. It is therefore only right to highlight when they make the right decision.

USCIS I-797 Approval Notice Policy Change

MU VISA ADVISOR: USCIS I-797 Approval Notice Policy Change

An I-797 Approval Notice is issued when a petition is approved by the USCIS. This notice shows the Petitioner (employer) name, the Beneficiary (employee) name and the dates of validity for the approved status. If the Beneficiary is inside the United States, the notice will also include a tear-off I-94 card at the bottom of the notice page.

In mid-September, the USCIS changed its policy with regard to the processing of I-797 Approval Notices. Until recently, these notices were sent to the attorney on file for the case. MU would receive the I-797 Approval Notice and send the original notice, along with a copy of the petition, and when applicable the public access file, to our client.

USCIS’s new policy, effective September 12, 2011, is to send the I-797 Approval Notice to the Petitioner or Applicant on the case. The attorney will receive only a “courtesy copy” of the Approval Notice which does not include the I-94 card. If you are the Petitioner or Applicant on a case, please carefully watch your mail for Approval Notices. When you receive this notice at your office or home, please send a scanned or photocopy to MU for our records. If you have

any questions about this policy change and how it might affect your case, please do not hesitate to contact Musillo Unkenholt.

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. If any member of your company would like to be added to the MU Visa Advisor mailing list, please contact Jeana (jeana@muimmigration.com).

MU VISA ADVISOR: PWD UPDATE

MU VISA ADVISOR: PWD UPDATE

The Prevailing Wage Determination (PWD) usually is the first step in the processing of an employment-based green card. This is a necessary beginning step for most occupations, including IT and healthcare occupations. The PWD is filed with the US Department of Labor (DOL).

In July, the DOL ceased processing PWDs as the direct result of a lawsuit affecting their H-2B applications. As a result of that lawsuit the entire PERM and Schedule A green card system has been disrupted.

Until the DOL re-commences the processing of PWDs, PERM and Schedule A green card cases may be delayed. It does appear that the resolution is forthcoming. There are reports that the first PWDs in several weeks have been received by the immigration community. If you have any questions on this, please do not hesitate to contact Musillo Unkenholt.

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. If any member of your company would like to be added to the MU Visa Advisor mailing list, please contact us.

MU VISA ADVISOR: H-1B CAP HAS BEEN REACHED

Last night the USCIS reported the H-1B cap has been reached for this fiscal year. Accordingly, the USCIS will not accept H-1B cap-subject Petitions. The next H-1B cap season begins on April 1, 2011, with start dates of October 1, 2011.

Please keep in mind that international workers who are working in the U.S. on an H-1B visa with another H-1B employer ordinarily are not subject to H-1B cap. These cases are commonly referred to as “transfer” cases and may be filed at any time throughout the year.

In preparation of the next H-1B cap season, MU will be holding a free teleconference for our clients. The agenda for this teleconference includes:

1. H-1 Cap 2011 - analysis
2. H-1 Cap 2012 - a look ahead and projections
3. Discussion of the new Form I-129
4. Update on USCIS Site visits and DOL Audits
5. Strategy session: H-1B Dependent employers
6. MU's 5 Big Things to Stay Compliant!
7. BONUS - MU's 3 Even Bigger Things to Stay Compliant!!

If you are interested in participating on this call, please email jeana@muimmigration.com to register.


Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue.

H-1B Cap To Be Reached

With the H-1B cap nearly reached, MU clients strongly are urged immediately to initiate and file any regular cap-subject H-1B cases. The H-1B cap likely will be reached in January 2011.

The latest USCIS update says that 53,900 of the 65,000 regular H-1B numbers were used as of December 17, 2010. While demand typically levels off during the Christmas and New Years holidays, it is expected that the demand will rise again in the first weeks of January. The demand for H-1B numbers historically has spiked as the H-1B number grows closer to 65,000.

Employees that may need an H-1B visa include:

• International students working on an EAD card under an OPT orCPT program after having attended a U.S. school;
• International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case;
• Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exempt organization; and
• Prospective international employees currently living abroad.

International workers who are working in the U.S. on an H-1B visa with another cap-subject employer are not subject to H-1B cap. These cases are commonly referred to as “transfer” cases and may be filed at any time throughout the year.

Additionally, the USCIS sets aside an additional 20,000 H-1B numbers for graduates of US Masters degree (or higher) programs. As ofDecember 17, 2010, 19,700 of the 20,000 have been received by USCIS. While no official USCIS announcement has been issued, that cap effectively may have already been reached.