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The number of H-1B petitions filed in the first week of filing hit 172,500, according to an announcement today by U.S. Citizenship and Immigration Services (USCIS). This year’s filings were about 48,000 more than last year, and more than double the number of H-1B visas allowed by law. USCIS also said that today it completed the random selection process, or “lottery,” triggered when the number of petitions exceeds the annual numerical quotas in the first week of filing. This began April 1. The annual limits are 65,000 for undergraduate-degree holders and 20,000 for petitioners holding a master’s or higher degree from a U.S. university. The lottery for advanced-degree holders was conducted first, and those who were not selected were put into the second lottery for undergraduate-degree holders. USCIS will begin issuing rejections and returning filing fees for all H-1B cap-subject petitions not selected in the general lottery. On Monday, USCIS stopped accepting H-1B cap-subject petitions after announcing that the 65,000 and 20,000 ceilings were reached in the first week.
BAL Analysis: The record number of filed petitions without an increase in the annual caps means the odds of selection in the lottery are significantly lower than last year, which saw 124,500 petitions. This year, petitioners in the general lottery have a less than 50 percent chance of being selected, as predicted by BAL partner Lynden Melmed in an op-ed article on April 1.
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H-1B petitions filed in the first week have exceeded the annual limits of 65,000 for undergraduate degree applicants and 20,000 for applicants holding a U.S. master’s degree or higher, according to an announcement today by U.S. Citizenship and Immigration Services (USCIS). This ends the filing period for H-1B cap cases for employment in FY 2015 (that begins Oct. 1, 2014).
USCIS had anticipated a record number of filings this season and announced in March that it would postpone premium processing of cap cases until April 28. When the number of H-1B filings hits the annual statutory ceiling in the first five business days, this triggers a random computer-generated lottery. Any cases not selected will be rejected and applications will be returned with filing fees unless they are found to be duplicate filings.
Employers will have to wait up to several weeks longer than normal to receive decisions on cap cases while USCIS finishes counting the filed petitions and conducts the lottery. USCIS has not confirmed the total number of petitions received and has not set a date for the lottery selection. It will conduct the lottery for the advanced-degree applicants first. Any applicants who are not selected will have another chance under the second random draw for undergraduate-degree petitions.
H-1B petitions not subject to the cap, including H-1B workers whose petitions were previously counted against the cap, will continue to be processed regularly.
BAL Analysis: As expected, H-1B petitions are at historical highs, likely surpassing last year’s 124,000 petitions in the first five business days of the filing period. The Congressionally-mandated caps and resulting lottery will once again delay decisions for businesses relying on skilled technology workers.
The SKILLS Visa Act – the House bill that would increase the numbers of highly-skilled foreign workers – will reduce the federal deficit by $110 billion over the next decade, according to the Congressional Budget Office, or CBO.
“[E]nacting H.R. 2131 would increase revenues by $118 billion over the 2014-2024 period. That increase, largely reflecting additional collections of income and payroll taxes, would result primarily from an expansion in the size of the U.S. labor force,” the CBO said in a report. The report also stated that over the 2025-2034 period, H.R. 2131 would reduce the federal deficit by $400 billion. The SKILLS Visa Act (or “Supplying Knowledge-based Immigrants and Lifting Levels of STEM Visas Act”) was introduced by Rep. Darrell Issa (R-CA) in May and would raise the annual number of high-tech and other highly-skilled foreign workers for employment-based temporary visas and green cards, eliminate per-country caps and get rid of backlogs.
BAL Analysis: The budget numbers are a major positive development for advocates of immigration reform and businesses seeking to increase quotas for highly-skilled foreign workers and immigrants through legislation. However, it is unclear whether the positive economic projections are enough to clear the bill through the political logjam.
New data released by U.S. Citizenship and Immigration Services (USCIS) show that the number of L-1B intracompany transfer petitions approved in FY 2013 fell sharply from FY 2012. For employers considering L-1 petitions, particularly as an alternative to H-1B petitions, the data are a reminder that L-1 petitions are not a slam dunk.
The new information shows that USCIS approved 11,944 L-1B petitions in FY 2013, down from 14,180 in FY 2012. Approvals in FY 2013 represented 67 percent of receipts, down from 76 percent in FY 2012 (although not all receipts are decided in the same fiscal year).
In light of H-1B filing season, many H-1B petitioners that do not make it under those numerical caps turn to L-1 visas instead. But L-1 petitions have been an uphill battle for the past several years.
There has been growing debate over the L-1B category, which allows professionals with specialized knowledge from a foreign office to transfer to a U.S.-affiliated office or to open a U.S. branch. Immigration attorneys have noticed a steady increase in the documentary burden to prove that an L-1B applicant possesses “specialized knowledge.”
In particular, Indian nationals seemed to face a higher burden than applicants from other countries, according to Stuart Anderson, executive director of the National Foundation for American Policy in Arlington, Va. The nonprofit policy organization published a report in February 2012 revealing high denial rates for L-1B petitions between 2008 and 2011. Anderson said the new data, which contains only total numbers rather than country-specific breakdowns, may mask those disparities.
Last fall, the Office of the Inspector General released a report pointing out flaws in the L-1B process, including inconsistent interpretation of the “specialized knowledge” standard. The report recommended guidance from USCIS to define “specialized knowledge.”
Another concern, Anderson said, is the high number of requests for evidence (RFEs), where the government seeks more information from the petitioner. An RFE can take months to satisfy, delaying a decision.
“There were a lot of requests for evidence, which can be the same as a denial if it pushes people back to a time that is no longer useful to the company,” Anderson said. “If you need a plumber now, and he can’t come until December, it doesn’t do you any good.” In many cases, foreign nationals were not able to get L-1B approval for a particular start date, such as a product launch date, until it was too late.
USCIS released the data on March 5 in response to a Freedom of Information Act request by the American Immigration Lawyers Association.
BAL Analysis: Companies are increasingly turning to L-1 intracompany transfers as alternatives to the numerically-capped and oversubscribed H-1B specialty occupation petitions. However, this category is under close scrutiny and the new numbers indicate that L-1B petitions continue to be problematic and unpredictable.
The State Department is expanding its oversight of exchange visitor (J-1) program sponsors to include site visits in the intern and trainee category this month. It is already conducting site visits to sponsors in the work travel category as of last year. The expanded field visits coincide with a report last week by the Southern Poverty Law Center that criticized the exchange visitor program as a “low-wage guest worker program,” recounting stories from visitors in the Summer Work Travel and Trainee and Intern categories, who signed up expecting a cultural experience, but found themselves working menial or exploitative jobs. In 2010, an Associated Press investigation found similar abuses. Since then, the State Department has beefed up resources and staff to oversee the program and conduct on-site visits. In some cases, sponsors will be notified before an appointment, but the State Department will also make unannounced visits in cases where officials believe that giving notice would prejudice what they might find.
“We want to ensure we are going to be seeing things as they actually are – not a Potemkin village,” said Susan Pittman, director of media relations for the Department of State’s Bureau of Educational and Cultural Affairs. “We want to make sure the sponsors are doing what they’re supposed to be doing.” She added that sponsors may be randomly chosen for a site visit, or could be targeted for a visit based on complaints from participants. During a site visit, inspectors will interview everyone involved with the program, including the sponsor, host, employer, housing provider and students and visitors in the program.
“We talk to anybody and everybody,” Pittman said. Sponsors can expect to produce documentation and answer questions about their recruitment methods and complaints they have received. Sponsors are required to submit reports about the program and to relay any complaints from participants to the State Department. Although the State Department does not have direct authority over employers, it will interview employers to find out about a visitor’s workplace and job duties. Under regulations, the State Department can impose sanctions against sponsors ranging from a reprimand to revoking sponsorship designation. The Exchange Visitor Program website lists sponsors that have been sanctioned, the reason for the sanctions and types of any penalties imposed. Last year, the State Department conducted over 1,300 site visits around the country, according to Pittman.
After passing a law in October that will allow undocumented immigrants to apply for driver’s licenses, California is preparing for the influx of applications. An estimated 1.4 million to 2 million people will be eligible to apply under the new law that takes effect on or before Jan. 1, 2015. That law, AB 60, requires the Department of Motor Vehicles (DMV) to issue driver’s licenses to undocumented immigrants and design a card approved by the Department of Homeland Security (DHS) that is consistent with the federal Real ID Act.
In a growing trend, California is the 11th state to allow undocumented drivers to obtain licenses. The other states are: Colorado, Connecticut, Illinois, Maryland, New Mexico, Nevada, Oregon, Utah, Vermont, Washington, and the District of Columbia. Nine states, including Florida, Massachusetts, New York and Texas, have recently introduced such legislation. Click here to see a map of state laws on this issue.
Under the California measure, driver’s license applicants will no longer be required to provide a social security number and prove legal residency for federal purposes. An applicant must submit an affidavit stating that he or she is ineligible for a social security number and unable to prove lawful presence. The law prohibits that information from being used to consider the individual’s immigration status as a basis for criminal investigation, arrest or detention.
The driver’s license for undocumented immigrants will differ from regular driver’s licenses. The DMV is working with the DHS to design the card. For example, the card must say on the front or back that it cannot be used as proof of identification for federal purposes, such as TSA (Transportation Security Administration) screening while boarding a plane. The Real ID Act sets out requirements for ID cards accepted by federal authorities for official purposes.
“We’re working with DHS to get approval of the design of the license that is acceptable,” California DMV spokesman Artemio Armenta told BAL Global News. “We have met with 32 consulates from 22 countries, as well as law enforcement agencies and labor organizations.” Like ordinary driver’s licenses, the card will also say that it “does not establish eligibility for employment, voter registration, or public benefits.”
Before implementation, the DMV is also required to solicit public comments and promulgate regulations. The agency will hold its first public meeting on Jan. 28 at the office of the Secretary of State, 1500 11th St., Sacramento, Calif. at 10 a.m.
The fraud unit of United States Citizenship and Immigration Services (USCIS) is expanding its oversight of certain L-1 visas by initiating unannounced visits to petitioners beginning this month. USCIS already routinely conducts on-site inspections of H-1B employers. The compliance visits will be conducted by USCIS’s Fraud Detection and National Security (FDNS) unit. Inspectors may appear at a new office site to verify information in the L-1 application and other documentation, including the identity of the beneficiary, the legitimacy of operations, and compliance with L-1 status.
The increased enforcement measure comes after the U.S. Department of Homeland Security published a report by its Office of Inspector General in August, recommending ways to root out fraud in the L-1 visa program for intracompany transferees. That report, Implementation of L-1 Visa Regulations, found several problems specifically with new office petitions and their subsequent extensions. A new office petition allows a foreign entity without a U.S. affiliate to send a manager, executive or a worker with specialized knowledge to open a new office.
“New office petitions and extensions are inherently susceptible to abuse because much of the information in the initial petition is forward-looking and speculative,” the report concluded. It recommended that USCIS conduct a mandatory site visit before extending one-year new office petitions. USCIS has not stated whether it will limit its inspections to extensions of new office petitions, as recommended by the report, or whether its visits will encompass other types of L-1 petitioners, such as larger company petitioners filing individual petitions and companies with approved Blanket L petitions.
BAL Comment: While the scope of the FDNS site inspections is not clear, USCIS has said it plans to begin conducting post-adjudication domestic L-1 compliance site visits in the first quarter of 2014. BAL advises that clients be prepared for these compliance visits and, as with H-1B compliance site visits, ensure that there is an internal company procedure in place to route FDNS officers to an appropriate company contact, who is aware of the company’s L-1 filings and is in a position to confirm the contents of the petition.
IMPACT – Medium
Telephone, email and web scams targeting immigrants have spiked in the past year.
Immigration authorities in Europe, Asia, Australia and the U.S. have warned foreigners about fraudulent calls.
Last week, several universities in the U.K. reported that some international students received suspicious calls from individuals posing as immigration officers from the U.K. Home Office. In France, police are investigating ongoing telephone fraud in which callers demand that foreign nationals pay immigration fees to complete their paperwork.
Such occurrences are becoming more commonplace worldwide, and even savvy travelers should be vigilant. In October, BAL reported telephone scams targeting foreigners in Ireland and New Zealand. In the United States, the U.S. Citizenship and Immigration Service (USCIS) recently warned about a scam luring foreign investors to buy securities to qualify for an investor visa. Earlier in the year, BAL reported that individuals posing as USCIS officers targeted foreign employees in the U.S. The callers asked for passport and alien numbers, claimed that their documents contained errors and demanded money to fix them. Callers can seem legitimate because they often possess pieces of personal identifying information about their victims, such as home address, birth date and application numbers. Immigration agencies are warning travelers and foreign residents that this information is easy to find online.
In some cases, telephone scammers have “spoofed” their calls so the number that appears on the recipient’s caller ID or mobile phone appear to come from a government agency. Earlier this year, Singapore’s Immigration and Checkpoints Authority alerted the public about suspicious calls appearing to originate from their hotline. In these calls, scammers asked for payment to fix supposed mistakes on travelers’ embarkation/debarkation cards. In another incident, Singapore’s labor ministry recently warned employers and workers not to use a fake copy-cat website.
Immigration officials have recently issued reminders, emphasizing that they do not call customers to collect payment for immigration fees over the phone and that people who receive calls like this should not give out personal details or pay any money.
This alert has been provided by the BAL Global Practice group. For additional information, please contact GlobalVisaGroup@bal.com.
Yesterday, the Senate voted 67 to 27 on a critical border security amendment, paving the way for a vote on final passage this week. The amendment was brokered by Senators Corker (R-TN) and Hoeven (R-ND). It would double the size of the border patrol and dedicate billions of additional dollars towards border security. Every Democrat and fifteen Republicans voted in the affirmative.
The Corker-Hoeven amendment likely represents the final major compromise in the Senate. It is expected that there will be a vote to end debate on Thursday, with a vote on Thursday or Friday for final passage out of the Senate.
BAL Comment: A few weeks ago, the Congressional Budget Office released a report stating that the legislation would reduce the government deficit by several hundred billion dollars. This report, along with the border security amendment that passed yesterday, suggests that the legislation is on track to pass easily through the Senate. Some proponents, including Senator Schumer (D-NY), believe that 70 votes in the Senate would place additional pressure on House Republicans to pass legislation that includes a path to citizenship for undocumented immigrants. Several Democrats were absent and several Republican votes remain in play, which suggests that the threshold of 70 votes may be in reach.
Last night, the Senate Judiciary Committee voted 13-5 to advance the Border Security, Economic Opportunity, and Immigration Modernization Act of 2013 (S.744), which includes a path to citizenship for 11 million undocumented immigrants as well as substantial reforms to high-skilled immigration. The legislation now moves to the Senate floor, where debate is expected to begin in early June.
The legislation’s passage out of Committee was made easier after three senators reached a compromise regarding changes to high-skilled immigration. Senator Hatch (R-UT) worked with Senators Schumer (D-NY) and Durbin (D-IL) to modify several provisions that would have made those visa programs unworkable.
As passed by the Committee, the Senate legislation would raise the H-1B cap to 115,000, which could rise to 180,000 in future years. The legislation would also eliminate the green card backlog for most employment-based immigrants. However, opponents of H-1B visas were successful in including provisions that would require higher H-1B wages for entry-level workers, new recruiting obligations for employers, and new fees and attestations.
The AFL-CIO has stated that it will continue to work against H-1B and L-1 visas as the legislation moves to the Senate floor, so further changes could occur before the legislation clears the Senate. BAL is closely monitoring progress with this legislation and will provide additional updates as new information becomes available. You can also follow live updates on our BAL Government Affairs Twitter page.