H-1B Rejected Cap Case Petitions Being Returned
The U.S. Citizenship and Immigration Service (USCIS) has started to return H-1B visa petitions that were not selected for the H-1B cap. As noted in our April NewsFlash, the H-1B cap was met on April 5, 2013 for both the General Cap and the Master's Cap. The USCIS held a lottery to select petitions under the Cap. Those petitions that were selected, in the vast majority of cases, have now received their USCIS-issued receipt notices. For those that have not received a receipt notice, the chances are strong that the petition was not selected for inclusion in the Cap via the lottery. If not selected, the USCIS will return the petition in whole, including all filing fee checks.
If an H-1B visa petition is rejected, the employer should contact Trow & Rahal to discuss other potential visa options, if any. H-1B visa petitions can still be filed if the employer is cap-exempt or if the foreign national has previously been counted against the cap.
Summer Travel Time:
All foreign nationals traveling this upcoming Memorial Day (and throughout the summer) should be aware of possible delays, both at the US embassies if applying for a new visa and at U.S. Customs and Border Protection (CBP) upon entry into the U.S.
U.S. Embassies: If you are going abroad this summer to renew your visa at a U.S. Embassy, it might take longer to schedule an interview at the embassy due to the high volume that the embassies receive during the summer. Some U.S. embassies no longer require an in-person interview if renewing a visa under certain circumstances. Please check the embassy's website before making an interview for a visa renewal.
U.S. Customs: CBP recently issued a travel advisory reminding travelers that traffic at the borders (air, land or sea) greatly increases during the summer, causing delays in the CBP's ability to process requests for admission. In addition, sequester cuts may limit the number of CBP officers on duty, adding to delay. The highest traffic volume is between the hours of 9:00 a.m. and 5:00 p.m., and CBP anticipates less of a delay for travelers crossing outside of these hours. However, it is very important to note that when processing an immigration benefit at the border (such as a TN or L-1), it is strongly recommended that the foreign national plan to present his/her petition during normal business hours, Monday – Friday. It is during these times that more experienced officers are available, including a Free Trade Officer.
Change in I-94 Card Issuance - Automated System Implemented
The CBP began implementing a new Form I-94 automation system on April 30, 2013. Implementation will continue across the nation through May 21. Under the new system, CBP will no longer issue a standard I-94 card at air and sea ports of entry. Instead, CBP will stamp the traveler's passport showing place and date of admission, class of admission (status), and period of authorized stay. A traditional I-94 card will not be issued.
Action required by traveler: The traveler will need to go to a dedicated CBP website, www.cbp.gov/I94 and print-out the equivalent to an I-94 card by providing passport and travel document information. Automation only affects air and sea arrivals. A traditional paper I-94 card is still issued at the land border ports of entry.
The USCIS has indicated that it will accept the print-out I-94 in lieu of the traditional I-94 card. In addition, other U.S. government agencies, such as the Social Security Administration and State Motor Vehicle offices, have indicated that the print-out will be acceptable. If the traveler finds, upon review of his/her passport and/or the I-94 print-out that s/he was admitted incorrectly, the traveler should visit a local CBP Deferred Inspection Site or port of entry to have his/her admission corrected.
Click here to read the fact sheet.
Visa Status Check Website Implemented
The DOS has implemented a "Visa Status Check" capability to its website. A visa applicant is able to check the status of his/her pending visa (whether immigrant or nonimmigrant) by case number. This innovation is a welcome tool for visa applicants who are unsure of the status of their case.
Click here to learn more.
Latest from the Blog
A recent New York Times article, "Countries Seek Entrepreneurs From Silicon Valley," shows a picture of a billboard sign on U.S. 101 (the highway that runs through Silicon Valley), which has written on it:
H-1B Problems? PIVOT to CANADA New Start-up Visa Low taxes immigration.gc.ca/startup.
To learn how our Winning Immigration Strategies can work for you, contact us today.
Request a Consultation: Click here to fill out our online form.
June 2013 Visa Bulletin – Large Leap Forward for EB-3
The Department of State (DOS) has issued the June 2013 Visa Bulletin. The employment-based second preference (EB-2) category for every country has largely remained the same, with little or no movement. However, the employment-based third preference (EB-3) category cut-off date for most countries has advanced significantly for a second month in a row. Specifically, EB-3 dates move forward as follows:
- For all chargeability areas: from December 1, 2007 to September 1, 2008;
- China: From December 1, 2007 to September 1, 2008;
- India: From December 22, 2002 to January 8, 2003;
- Mexico: From January 1, 2007 to September 1, 2008;
- The Philippines: From September 15, 2006 to September 22, 2006.
Applicants whose priority dates become current must file as quickly as possible! The DOS is taking this action to ensure that all visas allocated are used, but warns that this movement in priority dates is not indicative of what can be expected in the future. Rapid forward movement of cut-off dates is often followed by a dramatic increase in demand for numbers within three to six months. Once applications are filed and the demand increases, it is likely that the priority date numbers will retrogress. This could happen in one month or several months. Therefore, it is essential to file the adjustment of status applications as soon as possible!
Revised I-9 Now In Place
Since May 7, 2013, the revised Form I-9, Employment Eligibility Verification for all new hires and re-verifications must be used. All employers are required to complete and retain a Form I-9 for each employee hired to work in the United States. The new Form I-9 is two pages: Page 1 - to be completed by the employee as Section 1; and Page 2 - to be completed by the employer as Sections 2 and 3. An employer must provide hires with new expanded I-9 instructions at the time they complete Section 1 of the Form I-9. The list of acceptable documents has largely remained the same. There are two new optional fields in Section 1, the employee's telephone number and email addresses, both of which are optional. If any field is not completed, "N/A" must be noted.
No pre-population of I-9 from electronic system allowed: Of important note, The USCIS has announced that Section 1 of Form I-9 completed by the new hire may not be pre-populated. Many electronic I-9 systems do this as they are integrated with other HR systems and seek to create efficiencies in the hiring process by pre-populating employee information in Section 1 from data in the employer's on-boarding intake program. This prohibition is a new USCIS policy.
by Sarah M. Duckham
In a recent case issued by the Board of Alien Labor Certification Appeals (BALCA), the court discussed what evidence of a company website posting is required under the PERM regulations if used as a form of recruitment. In In the Matter of DGN Technologies, Inc., the employer provided a copy of the job posting from its website without any indication of the dates of posting along with a recruitment report indicated the dates of posting. BALCA addressed whether this was sufficient.
Under PERM regulations, one of the additional recruitment steps an employer can utilize in advertising a professional occupation is to advertise the position on its own website. Per regulations, this step "can be documented by providing dated copies of pages from the site." So, what does a company do if it neglected to take the printouts? BALCA delineated a process where the company representative with responsibility for the website posting provides an affidavit as to how the website posting was made, and the dates it was posted on the company's website along with a copy of the posting. Because the employer in this case failed to provide the affidavit, the denial of its PERM application was upheld.
Best practice is to take a simple printout of the company's website at least on the first and last days of posting, if not during the period of posting as well.