The EB-2 priority dates for China-mainland born and India are expected to retrogress to August 15, 2007 in the upcoming May Visa Bulletin. The current visa bulletin shows a priority date of May 1, 2010 for the EB-2 China-mainland born and India categories. Due to the high demand in these categories, the priority date has been retrogressed to ensure visa numbers are available for natives of other countries. USCIS has indicated that it will continue to “preadjudicate” adjustment of status applications received through April. The “preadjudicated” cases will be held by the State Department in “pending” status so that they will be ready in October, or earlier, if the current number use pattern changes, and they are needed at the end of the FY2012 to ensure the employment-based visas are fully allocated. For now, it is still too early to predict movement for the remainder of the year.
On March 30, 2012, employers can start filing new H-1B petitions for FY2013. The new fiscal year for USCIS does not begin until October 1, 2012, but employers can submit H-1B petitions requesting an October 1st employment start date since they are allowed to file an H-1B petition six months in advance. The H-1B category is subject to an annual cap of 65,000 new visas with an additional 20,000 for individuals with U.S. Master's degrees. New H-1B cases subject to the cap typically include applicants seeking initial H-1B entry, F-1 students seeking a change of status upon the expiration of their optional practical training (OPT), H-1B holders who previously worked for cap-exempt organizations, or individuals in other visa classifications such as L-1Bs, TNs, or H-4s who are seeking a change of status to H-1B. In the past, the demand for H-1B visas have been so great that the H-1B cap for the new fiscal year was met on the first available filing date. Although this has not been the case for the last 3 years, we still encourage employers to file new H-1B petitions on March 30, 2012 or soon after to ensure that their employees are granted an H-1B number under the FY2013 cap. For assistance in filing a timely FY 2013 H-1B petition, please contact our office.
The new visa bulletin is out at this link: http://www.travel.state.gov/visa/bulletin/bulletin_5674.html. Employment-based categories are as follows: EB-1 remains current for all countries; EB-2 remains current, except for India and China (May 1, 2010); EB-3 is at April 8, 2006 for all countries, except for India (Sept. 1, 2002) and China (Mar. 1, 2005); EB-3 other workers is at April 8, 2006 for all countries, except India (Sept. 1, 2002), China (April 22, 2003); EB-4, religious workers, EB-5, and targeted employment areas and regional centers are all current. Family based petitions are backlogged, with the most recent date at Oct. 8, 2009 for F2A (spouses and children under 21 of lawful permanent residents) and the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of Jan. 8, 1989.
The U.S. Visa Interview Waiver Program has been extended to Russia. Earlier this year, President Obama issued an executive order establishing more efficient visitor visa processing goals to promote travel and tourism to the U.S. The establishment of the Visa Interview Waiver Program allows certain applicants with a previously issued visa that expired in the past 47 months to be eligible to renew their visa without an interview. Under the current provisions, individuals with visas that have expired in the last 11 months are allowed to apply for a renewal without being subject to an interview. Under the expanded program, applicants seeking to renew a B1/B2 (tourist) or C1/D (crew or transit) visa that has expired within the last 47 months can now apply for a renewal without an interview. Please note however that consular officers continue to reserve the right to interview any applicant as they see fit. The expanded interview waiver provisions are effective immediately at all U.S. consular posts in Russia.
Employers continue to be subject to substantial fines by Immigration and Customs Enforcement (ICE) for "suspect documents" and failure to properly complete I-9 employment forms and verification of U.S. work authorization. An analysis of ICE internal records reveal that of the nearly 800 audit cases since October 2010, approximately half of the 117 companies fined were not specifically on account of hiring illegal immigrants, but for errors with the I-9 employment verification paperwork. Records show that a third of the total $1.8 million in fines issued by ICE involved companies where there was actually no finding of workers with suspect documents. One employer complained, "They're not looking for illegals. They're looking for clerical errors . . . It's a money grab." However, ICE states that some employers fined only for paperwork errors may have knowingly hired illegal immigrants, but often auditors are unable to prove it since by law, employers are only required to complete an I-9 and accept a Social Security card that appears to be "reasonably genuine." And of the 337 companies where auditors found to have had suspect documents, 52 of them were issued fines averaging more than $20,000 and several companies faced criminal charges or debarment from future government contracts. However, records also indicate that many companies with suspect employees are merely issued a warning notice. This lack of consistency in enforcement by ICE is a source of frustration and confusion for many employers. ICE spokeswoman, Danielle Bennett, responds "Employers need to understand that the integrity of their employment records are as important to the federal government as the integrity of their tax files or banking records. Much like the IRS uses audits as a deterrent strategy to prevent people from falsifying tax records, part of our strategy in conducting audits is to encourage businesses to comply with the law."
The Department of State (DOS) issued a final rule permitting the issuance of L visas with validity periods based on the visa reciprocity schedule which reflects the reciprocal treatment the applicant’s country accords the U.S. Under the current rule, L visas are limited to the petition validity period which is determined by USCIS and currently cannot exceed 3 years. An individual in L status may apply for an extension in increments of up to two years, but the total period of stay may not exceed 5 or 7 years for individuals employed in a specialized knowledge or managerial/executive capacity, respectively. The change in regulation allowing for issuance of full validity L visas based on the visa reciprocity schedule will benefit those who are nationals of countries for which the reciprocity schedule prescribes visa validity for a longer period of time than the initial validity indicated in the petition approved by USCIS and who have extended their L stay while in the United States. As such, these individuals would not be required to apply again for an L visa if they were to travel outside the United States during the period prescribed under the applicable reciprocity schedule, as is currently required when petition validity has been extended. This new rule took effect on February 14, 2012.