American Immigration Lawyers Association Sues the Department of Homeland Security and U.S. Citizenship and Immigration Services for Public Disclosure

Vol. VII, Issue 29 - July 29, 2010

On July 20, 2010, The American Immigration Council’s Legal Action Center (AIC) filed a lawsuit against the Department of Homeland Security (DHS) and the U.S. Citizenship and Immigration Services (USCIS) on behalf of the American Immigration Lawyers Association (AILA). AILA seeks public disclosure of rules and guidelines related to the H-1B visa application review process. The H-1B visa program allows U.S. businesses to temporarily employ foreign workers to perform services in high-skilled occupations that require theoretical and technical expertise in specialized fields, such as scientists, engineers, or computer programmers. Since 2008, USCIS has significantly increased oversight over the program and has employed stricter procedures for review of H-1B applications. However, the USCIS failed to provide to the public the rules and guidelines necessary for H-1B applicants to successfully meet the requirements and expectations of the agency. The current lawsuit stems from USCIS’s complete denial of AILA’s two Freedom of Information Act (FOIA) requests seeking public release of those documents. AILA contends that the wholesale denials of the two FOIA requests are contrary to President Obama’s promise of a more open and transparent

USCIS Releases Clarifying Guidance on “O” Petition Validity Period

The O-1 nonimmigrant visa is divided into two sub-categories. The O-1A visa permits nonimmigrant working visas to individuals who possess an extraordinary ability in the sciences, education, business, or athletics. The O-1B visa applies to those who possess extraordinary ability in the arts or have demonstrated record of extraordinary achievement in the motion picture or television industry. The validity period for an O-1 petition is gauged by the specific period of time required to perform or participate in the event for which the foreign individual is employed. The initial validity period may not exceed a period of three years and any necessary extension of stay will be determined and granted by the USCIS in increments of up to one-year periods. Although an O-1 petition beneficiary may remain in the U.S. for a period of up to 10 days prior to the commencement of the validity period and 10 days after its termination, he or she may engage in employment only during the specified validity period.

On July 20, 2010, the USCIS released a policy memorandum providing clarifying guidance for USCIS O-1 petition adjudicators. The memo addresses the issue of when to consider an event with a period of “gap” in between as a single event for purposes of the O-1 petition and when to consider them separate events requiring additional petitions. This issue typically arises in the context of employment that entails multiple activities, such as tours and lecture series. The memo states that there is no statutory or regulatory requirement that an itinerary with a gap of a certain number of days must be deemed separate events. The memo highlights the policy that adjudicators of O-1 petitions “should evaluate the totality of the evidence submitted to determine if the activities described in the itinerary are related in such a way that they would be considered an “event” for purposes of the validity period.”

For more detailed information on the guidance memo, please visit the following USCIS website:
http://www.uscis.gov/USCIS/Laws/Memoranda/2010/July/guidance-O-petition-gap_memo-07-20-10.pdf

H-1B Program Cap Count Update (July 16, 2010)

The H-1B program allows U.S. businesses to employ foreign workers to perform services in specialty occupations that require technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

The FY 2011 cap amount for the regular H-1B visa category is 65,000. However, not all H-1B petitions are subject to this cap. Up to 20,000 H-1B petitions are exempt under the H-1B advanced degree exemption. This exemption applies to petition beneficiaries who have obtained a U.S. master’s degree or higher. According to the July 16, 2010 USCIS cap count for FY 2011, 25,300 regular H-1B petitions and 11,000 advanced degree H-1B petitions have been accepted or are still pending.

For more information on the H-1B program, eligibility and filing requirements, please visit the following USCIS websites: H-1B Specialty Occupations, DOD Cooperative Research and Development Project Workers, and Fashion Models and H-1B Fiscal Year (FY) 2011 Cap Season.

H-2B Program Cap Count Update (July 16, 2010)

The H-2B Temporary Non-agricultural Workers Program permits U.S. employers to fill temporary nonagricultural jobs by bringing foreign workers to the United States. The current statutory cap on the H-2B visa category is 66,000 employments per fiscal year. This cap amount is divided equally between the two halves of the fiscal year; 33,000 visas are reserved for the first half of the fiscal year (October 1 to March 31) and another 33,000 are reserved for the second half (April 1 to September 30). Although there is no carry-over of unused employment spots from one fiscal year to another, unused cap numbers from the first half of the fiscal year can be filled during the second half of the fiscal year.

Not all H-2B petitions are subject to the statutory cap amount. In general, H-2B workers who apply to extend their stay are exempt from the cap. Likewise, the spouse and children of H-2B workers who qualify under the H-4 nonimmigrant classification are exempt from the cap. Further, H-2B workers who apply for the employment as fish roe processors, fish roe technicians and/or fish roe processing supervisors, or perform labor or services in the Commonwealth of Northern Mariana Islands and/or Guam between November 28, 2009 until December 31, 2014 are exempt from the statutory cap.

According to the July 16, 2010 USCIS cap count for the second half of FY 2010, 28,539 petitions have been approved and 1,615 petitions are still pending.