Topics in this Issue:
1. Prevailing Wage Process to Change January 1, 2010
2. Board of Immigration Appeals Issues Decision Eliminating Benefits of Child Status Protection Act In Matter of Wang
3. Department of State Advises of Dire State of Affairs on Visa Number Availability for Those Born in India or China!
4. USCIS Issues Guidance Update on EB-5 Immigrant Investor Program
5. Premium Processing for I-140s
6. H-1B Cap Count Decreases
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1. Prevailing Wage Process to Change January 1, 2010
As of January 1, 2010, employers will have an avenue to contest prevailing wage determinations, which are required as part of the PERM labor certification process. These determinations dictate the required wage levels that must be offered for the position listed in the PERM labor certification. Beginning January 1, 2010, employers will have a mechanism for challenging the determination, if they believe it is inaccurate or does not reflect business realities. If the employer does not agree with the prevailing wage, then there is an appeals process through the Board of Alien Labor Certification Appeals (BALCA.) This will be an improvement. Currently, it is difficult to challenge the prevailing wage determinations of the government.
2. Board of Immigration Appeals Issues Decision Eliminating Benefits of Child Status Protection Act In Matter of Wang
Restricts "automatic conversion" clause for children of immigrants who age beyond the protections of CSPA, creating a longer wait time for them to rejoin their families.
3. Department of State Advises of Dire State of Affairs on Visa Number Availability for Those Born in India or China!
The Department of State recently provided an update to AILA liaison regarding the estimated visa availability for employment-based visas for individuals from India and China.
Mr. Charles Oppenheim of the Department of State Visa Office has advised AILA of the following predictions for the movement of priority dates for the remainder of FY2009 and future years. He estimates that all 140,000 employment-based immigrant visa numbers will be used this fiscal year (October 1, 2008 through September 30, 2009). Mr. Oppenheim notes that the estimates provided on visa availability for the remainder of FY2009 were based on USCIS processing during the first 7 ½ months of the fiscal year, and any changes to USCIS processing patterns would impact availability. Mr. Oppenheim reported:
The employment-based fourth preference, which includes religious workers and other special immigrants, has experienced a surge in usage of immigrant visa numbers this year. While this preference is current for June 2009, continued heavy demand for numbers could require the establishment of a cut-off date later in the fiscal year.
The EB1 category worldwide will remain current the rest of the fiscal year but demand is high. The EB1 categories for India and China will be current during the month of July 2009, but could require the establishment of a cut-off date in August or September should EB1 demand remain heavy. As noted above, China and India have previously benefited from the excess EB1 numbers for all other countries because excess visa numbers from other countries "fall across" the EB1 category to India and China. The high demand from other countries this year means there are fewer numbers to "fall across" to India and China.
EB2 India - the prognosis is grim. For July 2009, the cut-off date is January 1, 2000, and the category may become unavailable in August or September of 2009. There are currently approximately 25,000 EB2 India cases which have been reviewed by USCIS and queued up at the Department of State awaiting visa numbers for the "green cards" to be approved. Like all other countries, India has a limit of 2,800 EB2 numbers available per year plus any "fall across" and "fall down" numbers from EB4, EB5 and EB1 visa numbers. Therefore, without legislative relief, the waiting time for Indian EB2 applicants may be measured in years, even decades.
EB2 China - the prognosis is equally grim. As of July 2009, the cut-off date will be January 1, 2000 and the category may become unavailable in August or September of 2009. There are a significant amount of EB2 China cases which have been reviewed by USCIS and queued up at the Department of State awaiting visa numbers for approval of the adjustment of status. Like all other countries, China has a limit of 2,800 EB2 numbers available per year plus any "fall across" and "fall down" from EB4, EB5 and EB1 visa numbers. Therefore, without legislative relief, the waiting time for China born EB2 applicants may also be many years.
4. USCIS Issues Guidance Update on EB-5 Immigrant Investor Program
U.S. Citizenship and Immigration Services (USCIS) today issued a guidance memorandum that provides USCIS adjudication officers with instructions related to the timing of job creation and the meaning of "full-time" positions in the EB-5 Immigrant Investor Program.
The guidance memorandum update to the Adjudicator's Field Manual (AFM) clarifies that for purposes of the Immigrant Petition by Alien Entrepreneur (Form I-526) adjudication and the job creation requirements, USCIS will consider the two-year period to begin six months after the adjudication of the Form I-526.
USCIS officers will ensure that the business plan filed with the Form I-526 reasonably demonstrates that the requisite number of jobs will be created by the end of the two-year period. For Regional Center petitions and for purposes of indirect job creation, USCIS adjudicators may consider economic models that rely on certain variables to show job creation and the amount of investment to determine whether the required infusion of capital or creation of direct jobs will result in a certain number of indirect jobs.
USCIS also has concluded that certain direct and indirect jobs that would have previously been considered to be temporary or intermittent (such as construction jobs) may be considered as permanent jobs for Form I-526 and the Petition by Entrepreneur to Remove Conditions (Form I-829) purposes if the positions can be expected to last at least 2 years.
5. Premium Processing for I-140s
USCIS announced that the agency will resume premium processing of most I-140s starting June 29, 2009. The USCIS announcement advises that they will accept premium processing requests for all EB1, EB2, and EB3 cases, except for EB1 Multinational Executive Transferees and EB2 National Interest Waiver cases.
Premium processing is a program developed by the INS in 2001 which permits persons to request speedier processing of certain types of petitions and applications for immigration benefits in exchange for paying the agency an additional $1,000 for filing fees.
6. H-1B Cap Count Decreases
USCIS updates a previous report released on May 22, 2009 which indicated that the H-1B cap cases had reached 47,700. In its newest update, the cap has actually decreased to 44,400 cases. Both Advanced Degree and Regular caps remain open as of this writing.
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