In the last 3 months visa appointment wait times in Brazil have been reduced from 50 days to 15 days in Rio de Jaeiro and to 6 days in Brasilia. In China 30 day+ waiting times have been reduced to 2-5 days. The dramatic reductions are due to a concerted effort by the State Department that included temporary staff, processing changes and increased use of technology.  In Brazil, the staffing increases will be made permanent with the addition of  50 consular staff positions, thereby doubling the visa workforce.

Wait times in Brazil and China, two of the world’s fastest growing economies, have been slowly creeping up as demand for visas to enter the United States has increased. In Fiscal Year 2011, the US Mission to Brazil processed over 820,000 visa applications, almost one and a half times the number of visas processed the previous year.  The US is also experiencing record demand for visas in China, as consular officers processed a record one million visa applications there, an increase from 2010 by over thirty percent.  The Department of State plans to continue reducing wait times and other processing impediments so that nationals of China, Brazil, and other countries can be interviewed and issued visas in a timely manner.

When planning for a visa appointment at any U.S. consulate, it is best to start early, allow plenty of time for the process,  and be prepared for the worst. Detailed information on the application process, fees, and documentation required is available from the State Department website by clicking on the US Embassy site where the application will be lodged. Visit the site for the Non-Immigrant Visa Unit  in  Rio de Janiero  for Brazil  information and  the Non Immigrant Visa Unit  in Beijing for China information. Safe travels!

Employers may continue to file H-1B cap petitions for employment in fiscal year 2012, however, quota usage has accelerated since the advanced-degree exemption is no longer available. U.S. Citizenship and Immigration Services released yesterday that as of November 2, 2011, 50,800 H-1B cap petitions have been reached against the Congressionally mandated cap of 65,000. 

Click here for the full story.  

The Office of the Administrative Law Judge, on behalf of the Department of Labor, has recently decided that an employer who has terminated employment of a foreign national on Optional Practical Training  and for whom it has received an approved H-1B visa petition, is liable for H-1B wages even though the foreign worker was terminated prior to the starting date of the H-1B visa petition. The employer could have avoided liability by simply withdrawing the H-1B Petition with USCIS at the time of the termination, however the decision is still troubling for the expansion of employer obligations under the H-1B program.

Kevin Limanseto was a native of Indonesia who initially came to the United States on an F-1 student visa, which in time led to optional practical training. (OPT). This is the one-year of work authorization that foreign students receive after attaining a degree in the United States. The purpose of OPT is to give students an opportunity to use the skills they have learned while in college.  Most foreign nationals on OPT ask their employer to sponsor them for an H-1B visa to coincide with the expiration of their OPT. Kevin Limanseto was no different. After working for Ganze Company as a tax accountant on OPT, Ganze  sponsored him for an H-1B  to start on  October 1, 2008  and end in  September 2011. However, in August 2008, Ganze terminated Limanseto’s employment for cause.  Ganze did not withdraw the H-1B  Petition and did not offer to pay for Limanseto’s return trip home, as he found employment elsewhere in the United States.

In 2011, Limanseto complained to the DOL and the DOL brought suit against Ganze for back pay and other H-1B program violations under the never used H-1B visa petition.  Limanseto v. Ganze Company, Case No. 2011-LCA-00005.  Ganze claimed that because it ended its working relationship with Limanseto before the H-1B term began, it was not liable to the employee for any of the payment or benefits under the program.   The DOL Administrative Law Judge (ALJ) disagreed.

The ALJ held that  the employer’s liability for compliance with all the terms and conditions of the H-1B program began with the filing of Labor Condition Application and  would not end until Ganze withdrew the H-1B visa by notifying  USCIS in writing.  The ALJ held that  in order to effect a legally bona fide termination of an H-1B worker (or F-1 worker with an approved H-1B petition) three elements must be met: a) notice to the worker, b) notice to USCIS  that the  I-129 (Petition for Nonimmigrant Worker) is withdrawn, and c) payment for the worker’s transportation home. 

The Judge found that while Ganze did satisfy the first prong of the test, it failed to satisfy requirements for a bona fide termination on the bases that it did not timely notify USCIS of the termination, and also that the company did not pay for Limanseto’s eventual trip home. Therefore, Ganze was liable for 3 years of back pay and interest to Limanseto. 

Ganze attempted to  raise the affirmative defense that Limanseto should have mitigated damages:  After leaving Ganze’s employ, Limanseto worked as an accountant for another firm in San Francisco.  The ALJ rejected the defense, holding that there was strict liability regarding the terms of the H-1B visa program, and that such a defense was not proper because the matter at hand did not involve a breach of an employment contract, or a case of invidious discrimination. 

To add insult to injury, the ALJ also held Ganze liable for legal fees  associated with the preparation of the 2008 H-1B visa petition. In addition, Ganze was found to owe pre-judgment and post-judgment interest on all amounts due to Limanseto; interest was found to be due on the wages from the time each installment of wages became due.

The lessons to learn from this unfortunate case are easy to implement, and are things H-1B employers should be doing anyway (although now you should add your never used H-1B petitions to the list):

(1) Withdraw  all H-1B petitions whether ongoing or for a future effective date on the day the employee is terminated by sending a letter to USCIS:

(2) Withdraw Labor Condition Applications on the day of termination through the iCert Electronic Portal;

(3) Pay H-1B legal fees if the payment of those fees by the employee would cause their effective wage to drop below the “actual wage.” (In reality this will be 95% of the  cases)

(4) Offer in writing to provide any H-1B employee with a one-way ticket to their home country at the time of termination, even if the H-1B petition has not yet gone into effect.

And yet, in spite of the easy fix for employers, while reading this case and again now as I am writing this article, I get more and more upset.  The level of unfairness to the employer in this circumstance is indescribable. To be hit with 3 years of back pay and interest for an H-1B visa petition that the employee never worked on for one day is an egregious example of how far the Department of  Labor  can go to punish employers who innocently use the H-1B program. This decision adds nothing to the integrity of the H-1B program or the protection of legitimate H-1B workers. It should be overturned.

 For more information on H-1B compliance or any other immigration issues, please contact Valentine Brown at vbrown@duanemorris.com or by phone  (215) 979-1840

The Fairness for High-Skilled Immigrants Act, H.R. 3012, was introduced by Representative Jason Chaffetz (R-UT) on September 22, 2011. The bill aims to eliminate per-country visa limits, which are currently causing severe backlogs in green card availability for highly skilled Indian and Chinese Nationals. All workers in the EB-3 category may wait up to 9 years for a green card to become available, while those Indian and Chinese workers  in the EB-2 category may wait up to 6 years. These delays cause hardship to not only  the workers, but their employers as well, due to the continued need for H-1B renewals, constant monitoring of immigration law developments and lost productivity of affected workers due to anxiety over the long waiting period.

As of right now, the Immigration and Nationality Act allows for only 140,000 employment-based visas to be allocated each year.  At present, the percentage of visas that can be allocated to any one country is capped  at  7% percent of all of the employment-based visas available.  Under the Fairness for High-Skilled Immigrants Act, , the per-country limit on employment-based visas would be eliminated by 2015 after a 3 year phase-in period.  During the 3 year transition, the vast majority of Employment Based visas would be allocated to Indian and Chinese nationals in order to eliminate the current backlogs. In FY 2012, Indian and Chinese nationals would receive 85% of the visa allocation. In FY 2013 and FY 2014  they would receive 90% of the visa allocations.

H.R. 3012 also  increases from 7% to  15%  percent the total number of available visas regarding per-country restrictions for family-based immigrants. This would greatly reduce long backlogs for nationals from Mexico and the Philippines who often wait more than 10 years for a green card to become available.

The bill is supported by the US Chamber of Commerce and a broad base of US business, including Microsoft and Google. It  has been referred to the House Judiciary Committee’s Subcommittee on Immigration Policy and Enforcement. Although it’s long term prospect for passage is slight, the bill is a ray of light from the Republican House  in an otherwise dark time for new immigration law, and its mere introduction shows that someone out there is listening and understands the current plight of US businesses and their highly skilled foreign workers.

We will continue to follow the bill and update our readers on any developments. For more information on this or any other immigration matter, please contact Valentine Brown vbrown@duanemorris.com; 215 979 1840.

On September 28th, United States District Court Judge Sharon Lovelace Blackburn upheld the most controversial sections of the immigration law enacted in Alabama earlier this year in a lawsuit brought by the US Department of Justice challenging the law on preemption grounds. Alabama HB56, was signed into law in June after Republicans won a supermajority in the State Legislature in the 2010 mid-term elections. It was challenged by the Obama administration as well as by civil rights groups. Both have vowed to appeal the ruling as it contradicts prior rulings by other federal courts that have considered similar laws in other states.

Judge Blackburn's ruling upholds provisions requiring police officers to request immigration documentation from anyone they suspect to be undocumented, and that all Alabama public schools from Grades K to 12 receive confirmation of immigration status from parents of all children attending.  The ruling also upholds provisions of the law that allow contracts to become void if entered into with an undocumented immigrant, and that criminalize the act of an undocumented immigrant’s application for a driver’s license or a license plate.  The law also includes criminal penalties for individuals who give rides to undocumented immigrants, and enables private citizens to report law enforcement officers and offices which do not enforce the law properly

The Judge’s ruling was more lenient regarding business owners and employers, as sections were blocked that penalize individuals who hire undocumented immigrants or encourage them to stay in-state to work.  The judge issued a preliminary injunction against several sections of the law, agreeing with the government’s case that they may be pre-empted federal law. She blocked a broad provision that outlawed the harboring or transporting of undocumented immigrants and another that barred undocumented immigrants from enrolling in or attending public universities.

Alabama Governor Robert Bentley, applauded the ruling, stating that the jurisdiction now has “the strongest immigration law in the country.”  Advocates on behalf of immigrants, such as America’s Voice Education Fund, are on the other hand indignant about the ruling, stating that it is the federal government’s job to determine immigration law and policy, and that the states only make matters worse by enforcing rules and laws that play to American’s fears rather than their strengths and best interests between one another.

We will have more in depth information on the E-Verify and business-related provisions of the Alabama law in future blog posts.

For more information on this or any other immigration topic, please contact Valentine Brown at vbrown@duanemorris.com

DHS recently published its first in an ongoing series of regulations aiming to change immigration benefit filings from paper to electronic.  Finally, the agency will join the 21^st Century!. The switch to electronic filing, known for the record as “USCIS Transformation,” will greatly assist the government in its processing of over six million immigrant benefit applications which are filed each year.  Through this electronic system, applicants will be given accounts containing status information regarding various cases they may have; they will also be able to respond to USCIS requests for information through these accounts, receive other communications and decisions from the government, and update their own personal information as needed.

The new regulation implementing the change from paper to electronic applications submission revises over fifty parts of Homeland Security regulations contained in Code of Federal Regulations Title Eight.   The public is invited to comment on these regulations, and may do so until October 28^th.  USCIS also extends on its website an invitation to the public to participate in “outreach” engagement sessions to foster communication between the government and the people (especially USCIS customers as well as the agency’s federal partners) regarding this new change. 

The first “transformation” regulation will officially go into effect on November 28^th.  And the first application to  be converted is the I-539. This form is used to extend visitor visas, student visas and dependent visas such as F-2, H-4, M-2 and L-2 as well as to change to one of these statuses. However, electronic filing will only be available for B, F, J, and M users of the form at first.  The transformation in this instance will enable e-filing for primary benefit seekers and their dependents as well as for attorneys and other accredited representatives.  It will also enable individual accounts to track multiple cases, facilitate electronic payment and evidence submission, and allow for the checking of one’s case status online. 

USCIS then aims in 2012 to enable online applications for those Forms I-102 (replacement of a lost I-94), I-131 (travel documents), I-765(work authorization documents), I-821, and I-824 (consular notification of visa petitions); customers may also have access to electronic fee waivers, as well as automated eligibility reviews through these applications.  Unfortunately the I-129 is not among one of the forms slated for conversion to electronic filing in 2012, however this may be a good thing as USCIS will have a long opportunity to perfect the system with less complicated application before converting the I-129 with all of its intricacies.

For a prototype view of what the new system will look like, click here.

For more information on electronic filing or any other immigration questions, contact Valentine Brown at 215 979 1840 or vbrown@duanemorris.com

As discussed in a recent blog post, USCIS has announced that it is encouraging entrepreneur job creators to utilize the EB-2 National Interest Waiver (NIW) category to qualify for permanent residence.  This category is extremely beneficial as applicants obtain EB-2 visas without having  a job offer or having to go through the arduous Department of Labor  PERM  Labor Certification process.

The question remains, however,  of how entrepreneurs will be able to demonstrate that they meet the National Interest Waiver standards, and  how individual USCIS adjudicators will interpret the new  guidance. If history is any guide, initial ignorance and narrow readings of the guidance should eventually be followed by more reasonable interpretations.

Advanced Degree Requirement: First, an entrepreneur wishing to file for an EB-2 National Interest Waiver (NIW) must show that she holds a  Masters Degree or higher. If  the entrepreneur cannot  make this showing, she can still file an NIW petition if she has 10 years of experience and has been recognized by her peers has having made significant contributions to her field. Second, the entrepreneur must show that her company's mission is in the national interest of the United States. This is the hard part. USCIS maintains that there is not statutory or regulatory definition of this term, but rather that "national interest" is determined through a three prong test first laid out in Matter of New York State Department of Transportation, 22 I&N Dec. 215 (BIA 1998)(NYSDOT).

Intrinsic Merit: The first prong of the test states that the entrepreneur must be working in an area that has "intrinsic merit."  USCIS refers to the NYSDOT matter for an example of an foreign national who was a structural engineer working on highway bridges who qualified for such a waiver.  Although USCIS is silent beyond this as to what constitutes "intrinsic merit," it would appear that such work would have to be that which provides immediate, tangible benefits for the good of others in American society.

National in Scope: The second prong holds that the work to be done by the person seeking the waiver will be national in scope; USCIS specifies that this could involve work done on a local level which may create jobs at the national level, or will otherwise have a positive national impact. 

PERM Bypass: For the third prong, the entrepreneur must show that her work would provide such a national benefit that she should be permitted to bypass  the normal labor certification process to obtain her permanent resident status. While these requirements may sound a bit daunting at first, entrepreneurs should not be discouraged. These applications are doable with some work and a lot of documentation. Potential job creators with strong vision, good business plans and perseverance should consider the EB-2 NIW as a viable route to legal permanent residence.

Stuck in EB-3? Start a Business: This new interpretation of the NIW may also provide an opportunity for highly-skilled foreign nationals who have been languishing in the long lines of the EB-3 category to find a way out and up into EB-2 while at the same time pursuing their entrepreneurial dreams, something they could not have even considered until last month.

For more information on whether you may qualify for an NIW or on any other immigration matters, contact Valentine Brown at vbrown@duanemorris.com or by phone a 215 979 1840.

The California DREAM Act (AB 130), makes undocumented immigrant college students eligible for previously unavailable privately funded scholarships for attendance at community colleges, state colleges, and public universities in California.. AB 130 passed through  the California Senate in mid-July, and was favored as it would not cost taxpayers anything.  The passage of AB 130 was a major victory for immigrants, as previous versions of the California DREAM Act were approved three times before by the state legislature, but then vetoed by former Governor Arnold Schwarzenegger each time. 

In the latest effort to pass the Act, Assemblyman Gil Cedillo split the measure into two bills, respectively known as AB 130 and AB 131.  Now the latter bill is under consideration, and it is here where the majority of the Act’s weight—and its controversy—truly lies.Specifically, AB 131 would allow undocumented students to access Cal Grants (the state’s financial aid) and would allow these same individuals to qualify for Board of Governors fee waivers at community colleges, which would allow students in low-income families to have their tuition waived.  AB 131 would also allow for undocumented students in the University of California system to gain eligibility for university grants. 

Lawful permanent residents and U.S. citizens would still have priority over undocumented students for Cal Grants under the bill.  Due to the nature of the economy at present, undocumented individuals would likely not see much grant money given their low priority, but the bill’s provision for them still marks an improvement for them regarding student financial rights, especially as these immigrants now have more of a stake in California’s tuition equity.Bills such as AB 131 benefit from a history of prior similar legislation benefiting undocumented aliens.  Specifically, the 2001 state law AB 540 allows students who graduated California high schools to pay in-state tuition regardless of their immigration status. 

Today, undocumented immigrant students still reap the benefits available from AB 540, as over three thousand such individuals are enrolled in the Cal State system with the help from the ten-year old law.  It is the success of such older laws which drive immigrants today to push for other measures such as AB 131, which will extend ever more financial protections for them so that they may build more secure futures for themselves and their families in the United States.

Advocates on the federal level continue to push for the big DREAM Act which would provide undocumented students who graduated from US high schools with a path to legal permanent residence. 

 For more information on  foreign student issues or any other immigration questions, please contact Valentine Brown at vbrown@duanemorris.com.

On August 2nd, USCIS Director Alejandro Mayorkas and Secretary of Homeland Security Janet Napolitano delineated a number of initiative ideas to increase investment and bolster the nation’s economy.  These initiatives aim to streamline visa adjudications for certain categories of immigrant entrepreneurs and to  draw immigrants from around the world to invest their energy, ideas, and talents to work and grow American employment, as well as stimulate entrepreneurship.   

It has been about six months since the inception of Startup America, an initiative executed by the White House to accelerate growth for America’s entrepreneurs.  Startup America serves as one key focus of the President’s Council on Jobs and Competitiveness, which seeks to establish the United States as the primary innovator, competitor, and contributor to the world’s economy.  T USCIS has now contributed the following proposals to the Startup America initiative. Many are in the proposal stage and will be made official USCIS policy sometime in the future. We will keep you updated as the various programs come on line. 

EB-2 National Interest Waivers: First, the national interest waiver for the EB-2 visa (which covers aliens of exceptional ability in the arts, sciences, or business) is accessible now to immigrant entrepreneurs who can show  that their business efforts will be in the United States’ national interest. We will have an upcoming blog post on the details of this change, as it may be very beneficial for many immigrants stuck in EB-3 who would like to start their own businesses. 

H-1Bs for Business Owners: Second, H-1B visas are now being made available to entrepreneurs with an ownership stake in their own companies, if an alien in question can show that his company has an independent right to control its employment.  USCIS has provided updated guidance to all of its Service Centers for adjudication of these types of petitions. We will be keeping you updated as the developments and adjudication trends unfold in the coming months.  

More Access for EB-5 Applicants: Third, USCIS  will be streamlining the EB-5 immigrant investor process by extending the availability of premium processing for EB-5 applications, establishing direct lines of communication between the applicants and USCIS, and providing applicants with an opportunity to speak before a panel of USCIS experts to resolve any issues regarding a given application. There is no time line in place for these improvements. We would not advise any investor to hold their breath, as it could be a while to put these proposals into place.

Premium Processing for Intra-Company Transferee I-140s: Fourth,  USCIS is looking to expand its premium processing service to I-140 petitions for multinational executives and managers.  Premium Processing allows employers to expedite the processing of their petitions as long as there exists no fraud, evidentiary deficiencies, or concerns regarding national security.  Unfortunately, there is no date set yet for the implementation of this service.

Finally, the Office of Public Management plans to hold a series of meetings to field issues of importance for foreign entrepreneurs and start-up companies.  Such meetings will give USCIS information regarding how such groups may be eligible for certain employment-based visa categories.  The first of these meetings was held last week on August 11^th.  In a similar vein, USCIS is hosting Conversations with the Director, which involves a series of small group meetings with Director Mayorkas to discuss important immigration issues pertinent to communities across the United States.  The first of these meetings occurred earlier this week on August 15^th, and addressed economic development and the EB-5 investor program.

For more information on any of these topics, please contact Valentine Brown vbrown@duanemorris.com.

On August 18^th, DHS made public a new interagency process designed to ensure that resources are focused on the current administration’s greatest enforcement priorities.  Involved in the process is the collaboration of DHS and DOJ officers and attorneys, including representatives of DHS and EOIR, as well as the DOJ’s Office of Immigration Litigation, in working together to identify low-priority removal cases that should be considered for an exercise of discretion.  Such review will occur on a case-by-case basis and will take into consideration cases that are at various stages of enforcement proceedings, including charging and hearing phases as well as the period after a final order of removal has been entered.  The DHS-and DOJ-based group will also provide guidance to prevent low-priority cases from entering the system on a case-by-case basis.  Resources conserved through this process will be applied to higher priority removal matters. 

DHS Secretary Janet Napolitano announced the unveiling of the abovementioned process specifically through a letter, dated August 18^th, addressed to Senator Dick Durbin.  Napolitano mentioned that the initiation of this new process was an implementation of ideas asserted in a memorandum of June 17^th prepared by ICE Director John Morton.  This memorandum addressed several factors for ICE agents to consider in deciding whether to exercise prosecutorial discretion, weighing mitigating factors for aliens such as lawful permanent resident status, U.S. military service, and evidence of serious mental or physical disabilities against aggravating factors such as risks to national security, serious felons, and repeat offenders (especially those in an immigration violation context). 

Napolitano added that inspiration for the August 18^th measure also arose from President Obama’s admonishments that it is a waste of resources to enforce against low-priority matters, such as aliens who have been in the United States since their youth and know no other home.  The ideals enacted in this measure ensure that resources are more effectively preserved to enforce against threats to the safety of the American public.  More particularly, through a more proper employment of resources, immigration judges will be able to more swiftly address higher priority immigration matters, and federal enforcement agencies will be able to address border security matters more readily.  On the whole, these recently-enacted measures aim to streamline the prioritization of national security matters so that federal resources may be best used for enforcement against our country’s greatest threats, as well as for protection of those seeking to build a constructive future in the United States.

In Teoba v. True Green Landcare, No. 10-cv-6132 (W.D.N.Y., filed Feb. 15, 2011), the U.S. District Court for the Western District of New York has recently held that the Fair Labor Standards Act (“FLSA”) requires H-2B visa employers to reimburse those workers for expenses related to the employment, such as travel to the United States, recruitment firm service fees, and visa application fees, if, after deducting the costs of those expenses from their earned wages, the salary they received fell below minimum wage.

The court held that visa, travel and recruitment expenses were primarily to the benefit of the employer, and therefore as per Department of Labor regulations, the employer must reimburse workers for those costs if they would cause the employee’s wages to fall below minimum wage compensation.

In addition, the District Court relied on a 2009 Department of Labor Field Assistance Bulletin, which stated that employers must reimburse H-2B visa workers for the cost of transportation, visa fees and recruiter fees.  In addition, the District Court in this case emphasized that the employer was the party who had retained the recruiter’s services.

This issue has also been reviewed and decided by two circuit courts.  In the Eleventh Circuit, the court held that the expenses must be reimbursed if they would cause the worker’s effective wage to fall below minimum wage.  However, the Fifth Circuit held to the contrary.

Due to the uncertainty of the state of the law in this area, it is wise for employers to take precautions to ensure that wages paid to H-2B workers will not fall below minimum wage levels when the expenses associated with the H-2B visa are considered.  It would also be in the employer’s best interest to retain and pay for the services of any recruiting firms without requiring those fees to be reimbursed by employees.

Based upon the District Court’s strong reliance on the 2009 Department of Labor Field Assistance Bulletin, the most prudent course for employers of H-2B workers would be to reimburse H-2B workers for the costs of transportation, visa fees and recruitment services regardless of whether the payment of those fees would cause the worker’s wages to fall below minimum wage.  This seems to be the position of the Department of Labor and would certainly be the Department of Labor’s position in any type of enforcement action against H-2B workers.

The cutoff date for EB-2, India, is expected to advance in May 2011. This advancement will occur in the U.S. Department of State (DOS) Visa Bulletin for May 2011. The Visa Bulletin for May 2011 will be published in early to mid April 2011.

Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting Division, U.S. Department of State, informed the American Immigration lawyers Association of a dramatic reduction in the use of EB-1 numbers. He stated:

“[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

It is impossible to predict just how much advancement there will be, but we will know in mid April. If a priority date becomes current on May 1, 2011, the foreign national may submit his or her I-485 application any time after May 1, 2011 and will be immediately eligible for permanent residence as long as the priority date stays current.

We will keep you updated on any additional developments.

Today USCIS announced that in light of recent complaints regarding changes in adjudication standards with regard to H-1B cap exemptions for  non-profit entities related to institutions of higher education, that it will respect prior cap-exempt designations while it revisits the issue.

In a press release, USCIS stated “Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education.” 

In order to receive the benefit of the prior determination, H-1B Visa Petitioners should provide USCIS with the following evidence:

• A copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments)
• A copy of the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006,
• Copies of any documentation that was submitted in support of the claimed cap exemption.
• A statement signed by the responsible officer attesting that their organization was approved as cap-exempt since June 6, 2006. 

USCIS emphasizes that these measures will only remain in place until additional guidance to petetitioners can be drafted and disseminated. USCIS promised to engage stakeholders in the process of reviewing current practice and developing new adjudication standards.

Stay tuned for more developments on this important issue.

USICS has issed the second installment of E-Verify Connection, a monthly newsletter for E-Verify users and others interested in the online verification system. The newsletter briefly highlights recent developments and provides readers with links to additional information. The newsletter has information on new reports out from the Government Accounting Office regarding E-Verify error rates; the American Customer Service Satisfaction Survey giving E-Verify high marks, as well as a link to the recently updated and revised I-9 Handbook for Employers.

The newsletter also announces appearances by USCIS E-Verify experts at numerous business and human resources meetings and converntions over the next several weeks. To download or subscribe to E-Verify Connection click here: 

http://www.uscis.gov/USCIS/Verification/E-Verify/Publications/E-Verify-Connection.pdf