On May 6, 2013, USCIS opened a new EB-5 Program Office in Washington, DC. The EB-5 Program Office is unique because all EB-5 petitions, including Form I-526 Immigrant Investor petitions and Form I-924 petitions to register Regional Centers, will be adjudicated by trained economists instead of traditional CIS adjudicators. The current Director of the Vermont Service Center, Mr. Daniel Renaud, will serve as Acting EB-5 Program Chief and his Deputy, Mr. Robert Cox, will serve as Acting EB-5 Deputy Chief.

For the time being, USCIS plans to continue concurrent EB-5 adjudications at the California Service Center (CSC) until the EB-5 Program Office in Washington, DC is fully operational. However, we do not anticipate significant short-term improvement in current processing time of EB-5 petitions (approximately 12 months for I-526 petitions and 18 months for I-924 petitions) as USCIS has indicated it will take several months to fully train new EB-5 adjudicators at the EB-5 Program Office. The long-term forecast looks brighter as concurrent adjudications at the CSC and EB-5 Program Office in Washington, DC may help alleviate the backlog in EB-5 adjudications.

Beginning today, Tuesday May 7th, all employers must start using the revised Form I-9, Employment Eligibility Verification form (Revision 03/08/13)N for all new hires and reverifications. The revision date of the new Form I-9 is printed on the lower left corner of the form.

All employers are required to complete and retain a Form I-9 for each employee hired to work in the United States. Employers should not complete a new Form I-9 for existing employees, however, if a properly completed Form I-9 is already on file.

The revised form, instructions and revised employer handbook are available online at www.uscis.gov/I-9. For more information, please call USCIS at 888-464-4218 or visit I-9 Central, a website maintained by USCIS to support Form I-9 users. USCIS has also scheduled free webinars to help employers learn about the new form.  Employers may also order forms by calling USCIS toll-free at 1-800-870-3676.

On April 17, 2013, Senator Charles Schumer introduced the Border Security, Economic Opportunity and Immigration Modernization Act of 2013. This comprehensive new immigration legislation results from work done by a bipartisan group of senators known as the “Gang of 8”.

The legislation would overhaul the US immigration system. It addresses many long-standing complaints with the existing system, including backlogs and quota limits on both immigrant and nonimmigrant visas. However, the bill also contains significant new enforcement measures, such as the potential expansion of the current E-Verify regime into a mandatory nationwide requirement, as well as new border security and interior enforcement measures.

Although the bill has generated a great deal of optimism, it is in the early stage of the legislative process. The bill is expected to be referred to the full Judiciary Committee in May 2013 for amendments. It is then expected to be on the Senate floor in early June 2013.   There will likely be months of public debate, as significant opposition has already arisen. Despite the groundswell of support for immigration reform, opponents of the bill are already discussing the possibility of “poison pill” amendments that could stymie or derail the bill. It is more likely that challenges or significant modifications will occur in the House of Representatives, which has a similar bipartisan group working on its own comprehensive immigration bill.

Jackson & Hertogs will keep you updated on all developments with respect to immigration reform.

At the American Immigration Lawyers Association (AILA) Spring CLE Conference in Washington, DC on April 12, 2013, USCIS stated that although the lottery to select a sufficient number of H-1B petitions to meet the FY 2014 cap was completed on April 7, 2013, USCIS will not issue receipt notices for H-1B petitions submitted via regular processing until late April or early May. The USCIS continues to issue receipt notices for cases filed under the premium processing queue. USCIS has not indicated when they will finish issuing the premium processing receipts. USCIS also stated that cases which were not selected during the lottery will be returned either in late April or early May, once receipts are issued. Regular receipts and rejected cases are mailed out through the US Postal Service with no tracking or advance notice issued as they are sent. This means that it will not be until mid-May before some foreign nationals and employers know whether cases were accepted for processing or not.

We understand that foreign nationals and employers are anxious to receive word regarding whether particular cases have been received or not. J&H is notifying foreign nationals and employers immediately as we receive receipt notices for H-1B petitions selected for the FY 2014 cap. If your case was not submitted using Premium Processing and was instead submitted via regular processing, we will not know until late April or early May if your case was selected for the FY 2014 cap.

Please note that USCIS also announced that they cannot accept upgrades to premium processing for any cases until the receipts are actually issued. This means that there is no way to “upgrade” a case in order to force out a receipt notice if the case was selected.

The Department of State (DOS) Visa Bulletin for May 2013 indicates some significant forward movement for the employment-based third preference categories (EB3), particularly for EB3 China which has moved forward eight months to December 1, 2007.  EB3 Mexico and EB3 for all other countries except India and the Philippines moved forward five months to December 1, 2007.  EB3 India and EB3 Philippines moved only slightly forward to December 22, 2002 (India) and September 15, 2006 (Philippines).

The employment-based first preference category (EB1) continues to remain current for all countries. The priority date for EB2 China has moved to May 15, 2008 while EB2 India once again remains at September 1, 2004. The EB2 category for all other countries, including Mexico and the Philippines, remain current.

DOS explained that the forward movement in the EB3 category is an attempt to generate demand so that the annual numerical limit may be fully utilized.  They expect forward movement to continue for the next few months but note that the rapid movement of cut-off dates is often followed by a large increase in demand for visa numbers.  Any such increase would once again slow-down or stop any forward movement in this category. While DOS attempts to avoid retrogression in visa availability, this is also a possibility when there is rapid movement during the fiscal year. Keep in mind that the government’s fiscal year runs October 1 to September 30.

Note that DOS looks at your country of birth in determining whether you are a national of a given country, not your country of citizenship. It is country of birth (yours or your spouse) that determines which country to which you are “charged” or “counted” for purposes of permanent residency. For example, if you were born in India but have since become a citizen of Canada, you are still charged against India and you have to look at advancements for India rather than worldwide numbers. As another example, if you (principal applicant on an employment based process) were born in India but you are married to a person who was born in Canada, both of you can be charged against Canada. This latter example is called “cross-chargeability”.

For general information on visa retrogression, please see our FAQ on this subject. For more information on the Visa Bulletin and country quota movements, including information about movement in the Family-Based Quotas, please see our DOS Visa Bulletin and Quota Movement page, which includes detailed nationality-specific charts of quota movement since 1996.

Please also note that while Congress is contemplating new immigration legislation it is far too early to look at the potential changes and their impact on the immigration system. Until new legislation is actually passed and becomes law, we can only look to the current laws for how cases will be processed.

On April 8, 2013, USCIS announced that it had received approximately 124,000 cap-subject H-1B visa petitions. 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. Cap-subject petitions that “lose” the lottery will be rejected and returned to the petitioner with filing fee checks uncashed.

During its “opening week”,  USCIS’ receipt of 39,000 H-1B visa petitions over the annual allotment demonstrates the increasingly untenable nature of the H-1B visa’s annual numerical limits. We urge you to reach out to your congressional representatives and ask them to address this issue in the pending immigration reform legislation. In order for the United States to maintain its leadership as an innovative and vibrant economic force, highly educated individuals should not be turned away based on an outdated and arbitrary quota limit.

The H-1B visa program ensures that U.S. employers have access to specialized workers essential to America’s economic development and global competitiveness. However, the annual numeric cap on H-1B visas – set over 20 years ago – has failed to grow with our country’s economic needs. Because of the annual cap on H-1B visas, employers lose the ability to hire very talented foreign nationals, who were very often educated in US universities.

The time is now to achieve immigration reform. Immigration reform is one of the hottest issues in Washington, D.C. We are urging our clients to be part of the conversation and the solution to help bring the US Immigration Policy forward to meet the current and future needs of U.S. businesses. While Congress is primarily focused on improving the economy, a comprehensive reform of our immigration laws is an essential component to our economic recovery. Jackson & Hertogs’ own Atessa Chehrazi will travel to Washington D.C. to meet with our elected representatives on April 11, 2013 as part of a “Lobby Day” contingent of the American Immigration Lawyers Association (AILA).

We would like you to be part of our lobby day campaign, and we will hand deliver your letters! We have prepared a sample draft letter focused on the H-1B and immigrant visa shortages which you may access on our website at http://www.jackson-hertogs.com/issues/CIR_employer_support_letter.doc.   Please insert some information regarding your company and then print the final letter on your letterhead, sign or arrange for signature, and preferably forward us originals of the letter addressed to your Senators and your Congressional representative for us to hand deliver to your elected representatives. This means three letters from each signatory. Please forward the letters via e-mail to achehrazi@jackson-hertogs.com.

From the USCIS news alert: USCIS Reaches FY 2014 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. 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. After today, USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received through April 5, 2013. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process. Also, USCIS is currently not providing the total number of petitions received, as we continue to accept filings today. USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

USCIS will provide more detailed information about the H-1B cap next week.

US Customs and Border Protection (CBP) will soon automate the Form I-94 Arrival/Departure Record to streamline the admissions process for international visitors. Over the next few months, CBP will stop issuing the paper Form I-94 which currently provides the evidence that international visitors, students and temporary workers have been lawfully admitted to the United States.

The change will take effect on April 26, 2013 and will be phased in at air and sea ports of entry beginning April 30, 2013. Visitors arriving to the US by air or sea will no longer be required to fill out a paper form once automation takes effect.

Future travelers who desire a hard copy of their I-94 will be directed to a special US CBP website, allowing them to print a copy of their Form I-94 based on electronically submitted data. Please note that the CBP’s new “I-94 website” will not go live until the end of April 2013.

The transition to the automated Form I-94 may take some time. As a cautionary measure, it is best to print out a copy of your Form I-94 from the CBP’s website. This is because other government agencies, including state departments of motor vehicles and/or the Social Security Administration, may continue to temporarily require the paper Form I-94 as evidence to obtain benefits.

You can read more about the new I-94 process here: http://www.cbp.gov/xp/cgov/newsroom/news_releases/national/03272013.xml

The H-1B cap filing period for Fiscal Year (FY) 2014 will begin on April 1, 2013.  USCIS is anticipating that during the first week of filing they will receive more than the available number of cap-subject H-1B petition under both the regular cap of 65,000 and the “master’s” cap of 20,000. On March 15, 2013, USCIS announced that in anticipation of the demand and that a lottery may be required for the first time since April 2008 to determine which cases will receive a cap number, USCIS will be delaying premium processing service.

Petitioners may file an H-1B cap petition with the premium processing fee, but the 15 day premium processing period will not begin until April 15, 2013.  During the period from April 1 to April 14, the premium processing will be held in abeyance. The 15 day premium processing period will begin for all H-1B cap petitions that are accepted on April 15th.  In other words, H-1B cap visa petitions filed with or without a request for premium processing will be treated the same up until April 15. On April 15, the H-1B cap visa petitions which include a request for premium processing will be processed under the normal premium processing rules.

This delay to premium processing adjudication will only apply to cap subject H-1B petitions.