Posted On: December 13, 2010

January 2011 Visa Bulletin Shows Major Retrogression in Family-Based Categories

The January 2011 Visa Bulletin shows significant retrogression of family-based categories with priority dates falling back as much as one to three years. The 1st preference category (unmarried children of U.S. citizens) shows an increased wait from 5 years to 6 years. The 2A preference category (spouses and children of legal permanent residents) suffers the largest setback with an increase from 4 months to 3 years, while the 2B preference category (unmarried adult children of legal permanent residents) experiences an increase from 5 1/2 to 8 years. The 3rd preference category (married children of U.S. citizens) shows an increase from 8 1/2 years to 10 years. The 4th preference category (brothers and sisters of U.S. citizens) was the only family-based category unaffected by the retrogression, remaining at a 9 year wait.

Employment-based categories did not experience any retrogression and are as follows: EB-1 remains current for all countries; EB-2 remains current, except for India (May 2006) and China (June 2006); EB-3 is at Mar. 2005 for all countries, except for India (Feb. 2002), China (Dec. 2003), and Mexico (April 2003); EB-3 other workers is at April 2003 for all countries, except India (Feb. 2002); EB-4, religious workers, EB-5, and targeted employment areas and regional centers are all current.

To view the January 2011 visa bulletin, see http://travel.state.gov/visa/bulletin/bulletin_5212.html

Posted On: December 10, 2010

H-1B Employer Faces Heavy Penalties for Failure to Comply With H-1B Provisions

A computer consulting company in Newark, New Jersey has been ordered to pay $638,449 in back wages and interest to 67 workers and civil penalties of $126,778 for failure to comply with H-1B provisions. As a computer consulting business, the company sponsored H-1B employees to work as programmer analysts at various client sites in the U.S., but failed to provide notice of the filing of labor condition applications (LCAs) at each worksite where the H-1B worker would be employed and took action against H-1B workers for early cessation of employment. Pursuant to H-1B regulations, a LCA providing notice of the job opening and the prevailing wage offered must be posted at the place of employment. Investigations conducted by the Department of Labor found that the most common violations involved an employer’s failure to post notice of the LCA at every worksite where an H-1B worker may be employed and failure to properly compensate the H-1B worker for nonproductive periods resulting from lack of assigned work, lack of a permit or preparing for a licensing exam. In this instance, as a result of its violation, the computer consulting company is not only subject to paying back wages and civil penalties, it is also excluded from participation in the H-1B program for one year.

Posted On: December 6, 2010

New Certification Requirements for H-1B, L-1, and O-1 Petitions

An employer who seeks to file a petition on behalf of a nonimmigrant worker in H-1B, L-1, or O-1A classification must now certify that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) with respect to the controlled technology or technical data that the petitioner will release to a foreign beneficiary. Pursuant to the EAR and the ITAR, an employer’s release of this information to foreign persons is deemed to be an export to that person’s country or countries of nationality. As such, the U.S. company must obtain a license from the U.S. government before it can release controlled technology or technical data to its nonimmigrant workers.

The petitioner is now required to certify on Form I-129, Petition for Nonimmigrant Worker, that it has reviewed the EAR or ITAR and determined whether it will require a U.S. government export license to release controlled technology or technical data to the beneficiary. If the petitioner determines a license is required, the company must further certify that it will not release or allow access to the controlled technology or technical data until it has received the necessary license or authorization.

Few petitioners will be affected by the above licensing requirements as most types of technology are not controlled for export or release to foreign persons and are not related to defense articles and defense services. However, the petitioner must review the EAR and ITAR to ensure compliance with the U.S. export control regulations. If you have any questions, please do not hesitate to contact our office.

Posted On: December 2, 2010

FY2011 H-1B Cap Update

As of November 26, 2010, the USCIS has received approximately 50,400 Bachelor's degree petitions and 18,400 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2011 until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met. Please contact our office for assistance in filing your H-1B petition as we anticipate the quota will soon be reached.

Posted On: December 2, 2010

Report on Visa Waiver Program

The Congressional Research Service (CRS) recently issued a report on the Visa Waiver Program (VWP) which allows foreign visitors from certain countries to enter the U.S. without obtaining a visa. To participate in the VWP, a country must offer reciprocal privileges to U.S. citizens and its participation in the VWP may help promote better international relations, tourism and commerce, and lighten consular caseloads. To date, 36 countries participate in the VWP, including Australia, Japan, and the UK, to name a few. In FY2009, 16.2 million visitors entered the U.S. under the VWP, accounting for 50.5% of all foreign visitors. For the CRS’s full report on the VWP, including issues of security, adding countries to the VWP, lost and stolen passports, overstays, etc, see http://www.fas.org/sgp/crs/homesec/RL32221.pdf.