IMMIGRATION SPOTLIGHT February 27, 2013 ISSUE 130

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1 IMMIGRATION SPOTLIGHT February 27, 2013 ISSUE 130 INSIDE SPOTLIGHT U.S. CITIZENSHIP AND IMMIGRATION SERVICES H-1B cap season: Don t wait to start Online case status delays Coming soon: New Form I New office for EB-5 adjudications in Washington, D.C DEPARTMENT OF STATE March 2013 Visa Bulletin Update: Visa priority dates and EB-2/EB-3 demand EB-5 ( Immigrant Investor ) update CONSULAR NEWS Mexico: Expansion of Business Facilitation Program China: New fee collection system to be launched LEGISLATIVE NEWS Proposed immigration reform DEPARTMENT OF LABOR PERM statistics OTHER NEWS J&H webinars Immigration Trivia SPREAD THE WORD! Immigration Spotlight is electronically distributed to HR professionals and also published to our website. To read a back issue on our website, click on Employer Resources on the menu bar. Please feel free to forward Spotlight to the rest of your management team and employees. You may download our firm brochure at Jackson & Hertogs LLP is one of the oldest and most respected immigration and nationality firms in the country dedicated solely to the practice of immigration law. Today, Jackson & Hertogs has eight attorneys and a staff of 25 legal assistants and office management personnel to assist you with immigration matters. USCIS NEWS H-1B CAP SEASON: DON T WAIT TO START! The FY 2014 H-1B cap season is set to open on April 1, 2013 and we are actively preparing new H-1B petitions to file during the first five business days of April. By regulation, the USCIS will accept all cases filed during the first five business days of April and if they receive sufficient numbers to exhaust the cap all received cases will be subjected to a lottery to determine which petitions will be adjudicated. The earliest date USCIS will accept cap filings this year is April 1, The cap (the numerical limit on H-1B petitions) for FY 2014 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master s degrees or higher are exempt. Last year, the FY 2013 H-1B cap was met as of June 11, J&H has conducted a review of the employee records for our employer clients and identified anyone who is potentially eligible for an H-1B petition. If you missed our , this is the time to reach out to our office to start any cases requiring an H-1B cap filing. The H-1B cap typically impacts employers desiring to employ individuals who are in the U.S. in other nonimmigrant categories (F-1, J-1, L-1, etc.) or who are H-1B nonimmigrants with universities or related not-for-profit research institutes or who are outside the United States and have not previously held H-1B status. Individuals who were already counted against the cap in a prior fiscal year and who have not "reset" their six year limitation of stay clock, are exempt from the cap. Therefore, current employees or possible new hires already in H-1B status with for profit employers and requiring extensions are not subject to the cap. As a reminder, employers should notify J&H of any potential offers being made to new H-1B hires in the upcoming months to ensure that an H-1B cap petition is prepared in time if needed. J&H will be monitoring the cap count and providing updates as we get closer to the cap being reached. Given the uptick in hiring, it is fully anticipated that the H-1B cap will be reached during the first five business days of April this year. If this happens, all cases received during this filing window will be subjected to a lottery system to determine which cases will be processed. This means that it is very possible that some petitions will simply be rejected for lack of visa numbers. While

2 Immigration Spotlight February 2013 Jackson & Hertogs LLP Page DOS USICS NEWS (cont d) immigration is a hot topic in Congress these days, there has been no change to the legal numbers available so far. If there is no change in law, it is likely that employers will not be able to sponsor new cap subject employees until April 2014 once the cap is reached this year. Now is the time to contact your representatives and explain why the H-1B is crucial to your company. ONLINE CASE STATUS DELAYS USCIS posted a notice on their online case status check system that we can expect a 30 to 45-day delay between when an application or petition is filed and when that information is available in the online system based on the volume of applications USCIS receives. This means that there may be a delay between when USCIS issues a receipt notice for an application and when we are able to find it in the USCIS online system. The online case status is available on the USCIS website. Searching by receipt number for the pending application will provide a current status of the case. The system can tell you if a case is in initial review, request for evidence or decision stage. The website can be accessed at Dashboard.do This delay means that clients and petitioners will be severely disadvantaged in not being able to obtain case status information in a timely manner. Since the implementation of the online case status system this is the first time that USCIS has indicated its inability to maintain the information in a current manner. using a Form I-94 received while traveling to the United States. Also, Section 3, formerly titled Updating and Reverification, will be titled Reverification and Rehires. It is unclear whether this means Section 3 of the new Form I-9 can no longer be used for updates such as name changes. USCIS has provided no estimated release date for the new Form I-9. We will continue to post updates as they become available. In the meantime, employers should continue using the Form I-9 currently available on the forms section of NEW OFFICE FOR EB-5 ADJUDICATIONS IN WASHING- TON D.C. USCIS has announced plans to move EB-5 adjudications from the California Service Center (CSC) to a new program office in Washington, D.C. The new EB-5 office will be responsible for adjudications, legislative affairs, and policy and Robert Cox of the Office of the Chief Counsel will serve as interim EB-5 Program Director. In an effort to decrease processing time and adjudicate petitions more efficiently, adjudicators in the new office will move away from issuing formal Requests for Evidence (RFEs) and will instead communicate with applicants and attorneys via to resolve issues on pending EB-5 petitions. USCIS intends to establish the new office within four to six months. In the meantime, applicants should continue submitting EB-5 petitions to the California Service Center. COMING SOON: NEW FORM I-9 USCIS is finalizing a new Form I-9, the form used by U.S. employers to document the eligibility of its employees to lawfully work in the United States. To date, the agency has released two draft versions for comment. One on March 18, 2012 and the second on July 17, As currently drafted, the new Form I-9 is two pages long, clearly separating the employee attestation section (page 1) from the employer review and verification section (page 2). Section 2 now includes space for a third List A document for students or exchange visitors presenting Form I- 20 or DS Other formatting changes include shaded headings, barcodes, and boxed fields for an employee s social security number, alien registration number ( A number ), and similar data. Substantive changes include requests for new optional information such as the employee s address and telephone number. Importantly, the new draft Form I-9 if implemented will ask employees for their passport number and country of issuance when

3 Immigration Spotlight February 2013 Jackson & Hertogs LLP Page DOS NEWS (cont d) MARCH 2013 VISA BULLETIN The Department of State (DOS) Visa Bulletin for March 2013 indicates some very minor forward movement for some of the retrogressed categories. The employment-based first preference category (EB1) continues to remain current for all countries. The priority date for EB2 China has moved to February 15, 2008 while EB2 India remains at September 1, The EB2 category for all other countries, including Mexico and the Philippines, remain current. The employment-based third preference category (EB3) numbers for all countries made some slight forward movement. China advanced to January 22, EB3 India moved forward one week to November 22, 2002, EB3 Philippines moved forward to September 1, 2006 and EB3 for all other countries, including Mexico, moved from March 15, 2007 to May 1, The visa bulletin also contains some predictions on the upcoming months. The EB1 category for all countries and the EB2 category for all countries other than India and China are expected to remain current. EB2 China is expected to move forward three to six weeks, while EB2 India is not expected to make any forward movement and may even retrogress in the near future. EB3 China is expected to move forward two to three months, EB3 India up to two weeks, EB3 Philippines up to one week, and EB3 Mexico and all other countries are expected to move four to six weeks forward. 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 crosschargeability. 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 VISA OFFICE UPDATE ON PRIORITY DATES AND DE- MAND FOR EB-2 AND EB-3 CATEGORIES The Department of State s Visa Office recently commented on the current visa demand across the employment preference categories and provided some predictions for the remainder of the fiscal year. They explained that India EB2 continues to see very little forward movement and may even retrogress during this fiscal year due to upgrades from EB3 to EB2. They report 125 cases upgraded in December 2012 alone with priority dates prior to Upgrades from EB3 to EB2 are difficult to take into account and USCIS is unable to provide the Visa Office with any information to help them manage these upgrades. Additional EB2 numbers may become available from the EB5 and EB1 categories as unused visas are supposed to spill down but it is unknown and difficult to predict whether this may happen and how many visas will, in fact, spill down. Current numbers indicate that there are approximately 42,000 India EB2 cases in line with priority dates prior to May 2010 and12,000 India EB3 cases with priority dates before January The Visa Office is able to accurately assess the number of EB3 cases with older priority dates due to the 2007 retrogression. For example, there are 63 cases with a November 18, 2002 priority date. The Visa Office also reports that there are 44,000 EB3 cases with priority dates before August 2007 which have been pre-adjudicated and will be approved once their priority dates become current. EB-5 ( IMMIGRANT INVESTOR ) UPDATE IN MARCH 2013 VISA BULLETIN The Department of State s December 2012 Visa Bulletin stated that it may be necessary to establish a cut-off date in the Immigrant Investor Employment-Based Fifth (EB-5) preference category for Chinese nationals during the second half of FY However, the March 2013 Visa Bulletin declares a cutoff date unlikely as demand for EB-5 visas has averaged out in the first six months of FY In addition, Mr. Charles Oppenheim, Chief of the State Department s Visa Control and Reporting Division, who is responsible for drafting the monthly Visa Bulletin, recently stated that worldwide EB-5 visa usage is up 75% when compared with this time last year. CALCULATE VISA WAIT TIMES WITH DOS ONLINE TOOL If you are planning to apply for a nonimmigrant visa, such as the H-1B or L-1 visa, at a U.S. embassy or consulate, you can look up average waiting times to both receive an appointment and have your visa processed here. Simply select the location of the embassy/consulate (i.e. Bern) and click on Get Wait Times. If an expedited interview appointment is needed earlier due to an

4 Immigration Spotlight February 2013 Jackson & Hertogs LLP Page DOS NEWS (cont d) emergent situation, visit the DOS Embassy or Consulate Visa Section website where you will find specific instructions about making the request. Note that the average wait times are not guaranteed and do not include time required for administrative processing, a random security check which may affect your application. If necessary, this additional processing is usually resolved within 60 days of application, though some cases may take longer. For more information on security delays in general please visit our Security Checks page. CONSULAR NEWS ITS BUSINESS FACILITATION PROGRAM The United States Embassy in Mexico City announced the expansion of its Business Facilitation Program (BFP) that allows access to expedited visa processing for employees of qualifying firms traveling to the U.S. on company business. The BFP will provide time-saving benefits for businesses whose employees need to travel to the U.S., and highlights the United States commitment to deepening trade and economic engagement with Mexico. The BFP is open throughout Mexico and is available at all U.S. Consulates and the Embassy. The BFP requires interested firms to register with the U.S. Embassy s or Consulates Consular Section. Participating companies will benefit from access to the visa appointment system, allowing a company representative to schedule online visa application appointments in for a reserved appointment block. In addition, employees of participating companies will receive expedited processing and visa delivery for their approved applications. All U.S. companies with a Mexican branch/affiliate/subsidiary may participate in the BFP. Mexican and non-u.s. companies with at least 100 employees are eligible to participate, as well as those with less than 100 employees, who obtain a recommendation from either the American Chamber of Commerce ( AmCham ), Camara de Comercio de Mexico ( CANACO ), or Asociación Nacional de Importadores y Exportadores de la República Mexicana ( ANIERM ) certifying that the company has been a dues-paying member of the respective organization for at least three years For further information on the program, please refer to the guidelines and application form on the U.S. Embassy s website at business-facilitation-program.html or contact your Jackson & Hertogs attorney. NEW FEE COLLECTION SYSTEM FOR U.S. CONSULATES IN CHINA TO BE LAUNCHED IN MARCH 2013 The U.S. Embassy and Consulates General in China will be transitioning to a new and improved visa fee collection system for Chinese applicants in mid-march As a result of this new system, the U.S. visa fee receipts that applicants currently purchase from select CITIC Bank branches will be phased out and will not be valid after March 14, There will be no fee increase associated with these changes. The U.S. Embassy strongly advises all visa applicants to use all current CITIC fee receipts before they expire on March 14, After the expiration date, they will be unable to accept receipts issued before March 14 and refunds for expired receipts will not be available. Visa applicants who plan to apply close to or after March 14 should wait to pay their visa fees until after this date.

5 Immigration Spotlight February 2013 Jackson & Hertogs LLP Page LEGISLATIVE NEWS PROPOSED IMMIGRATION REFORM Recently, the President, House, and Senate have announced a number of immigration proposals designed to improve immigration options for highly-skilled workers while also addressing Comprehensive Immigration Reform. In January 2013, a bipartisan group of eight Senators McCain (R-AZ), Graham (R-SC), Bennet (D-CO), Durbin (D-IL), Flake (R-AZ), Schumer (D-NY), Rubio (R-FL) and Menendez (D-NJ) (dubbed the Gang of Eight ) released the Bipartisan Framework for Comprehensive Immigration Reform. The proposal discusses granting lawful permanent resident status to immigrants who have received advanced degrees in science, technology, engineering, or math (STEM) from an American university. The plan also discusses eliminating the visa backlog for highly-skilled workers. Please note that this will likely not result in simply awarding green cards to such recipients we fully expect that the petition process will continue to have a labor market test as a component for processing. Shortly thereafter, President Obama announced his four-part immigration reform proposal in a speech in Las Vegas, Nevada. The President s proposal was similar in that it also discussed eliminating long wait times for employers and prospective employees by reducing backlogs and adding visas, options for granting green cards to graduates in science, technology, engineering and math (STEM) fields, creating a "startup visa" for jobcreating entrepreneurs, and expanding opportunities for investors contributing to U.S. economic development. After the President s speech, a bipartisan group of U.S. Senators (Hatch (R-UT), Klobuchar (D-MN), Rubio (R-FL), and Coons (D- DE)) proposed the Immigration Innovation Act of 2013, S.169 (I- Squared). Some of the proposals in I-Squared include increasing the number of H-1B visas that can be issued each year by staggering additional visa numbers throughout the year depending upon usage, eliminating the cap on H-1B visas for U.S. Master s or higher degree holders, and eliminating the priority-date backlog for U.S. STEM advanced-degree holders with approved EB-2 PERM applications. The American Immigration Lawyers Association (AILA) has organized a National Day of Action on Thursday, April 11, 2013 where hundreds of AILA attorneys will travel to Washington, D.C. to meet with members of Congress regarding the importance and necessity of immigration reform in retaining highlyskilled talent in the U.S. J&H attorneys will be in attendance at the AILA National Day of Action. Employers are encouraged to provide letters outlining how immigration impacts their businesses and abilities to hire key personnel for us to present to our representatives. We are in the process of developing draft letters that can be used to this end. While we will be reaching out to our clients and our list serve, if you have interest in working directly with us on such correspondence, please contact us. We will provide updates as to new legislation as they solidify. DOS NEWS U.S. MISSION IN MEXICO ANNOUNCES EXPANSION OF PERM STATISTICS The Office of Foreign Labor Certification released PERM statistics for the first quarter of Fiscal Year (FY) 2013 which runs from October 1, 2012 to December 31, During that period, 16,724 applications were received by DOL. Also during that period 12,123 applications were certified. The latest PERM processing times indicate that analysts are working on PERM with a filing date of October 10, 2012 or earlier. For cases where an audit has been issued, cases filed on or before May 31, 2012 are being processed.

6 Immigration Spotlight February 2013 Jackson & Hertogs LLP Page J&H NEWS WEBINAR SERIES To register for any of our webinars please with the date of the seminar you would like to attend. March 27, 2013: New immigration legislation, and lobbying your company s Congressperson President Obama initiated his second term with a vision for long deferred comprehensive immigration reform. A group of eight Senators introduced four pillars of immigration reform, which contained only general outlines of changes related to business immigration, such as E-Verify and priority treatment of Science Technology Math and Engineer (STEM) graduates. A separate bill, called the Immigration Innovation Act (or I Squared ) was introduced with specific provisions related to business immigration (such as a market-based variable for determining H-1B numbers), and towards immigrant visa backlog reduction. Obama s plan and the Congressional plan overlap, but have differences as well. During this politically active period, it is important for employers, either through associations or individually, to communicate their priorities for change and problems with the existing law to Congress. This webinar will include a review of the employment-based provisions of the competing immigration bills and will provide tools for employers to reach out to Congress, including letters delivered by a Jackson & Hertogs attorney to DC congressional offices, as part of the American Immigration Lawyers Association s Lobby Day on April 11, April 24, 2013: Alternatives to the H-1B Citizens of certain countries (e.g., Canada, Mexico, Chile, Singapore, & Australia) can often find work visas independent of the H -1B category. Further, certain international transferees, citizens of countries sharing nationality with foreign-owned corporations, and foreign nationals of extraordinary ability can also be eligible for visas independent of the H-1B. It is anticipated that the H-1B cap will be reached during the first five business days of April this year. Please join us as we explore alternatives that may be available should the popular H-1B visa no longer be an option for your potential hire. May 29, 2013: Developing and enforcing a "best practices" corporate immigration policy Earlier this year, Jackson & Hertogs conducted an on-line survey of HR professionals in order to benchmark certain immigration policies across companies and industries. This webinar will discuss the survey results. We hope to provide you benchmark data that may assist you in reviewing or creating immigration benefits programs within your company. Please join Jackson & Hertogs for a review of the best practices and common pitfalls HR departments encounter in developing and implementing an immigration policy. July 31, 2013: Midyear Hot Topics in Immigration Law This webinar will focus on current hot topics and provide an update on the current state of immigration law and policy. We will review any changes in law, regulations, or policy over the last year. We will also review recent developments with DOS, DOL, CBP, and USCIS, as well as other areas that may be relevant to our corporate clients. Please join us for this overview of the latest developments in immigration. IMMIGRATION TRIVIA True or False? The Form I-9 Employment Eligibility Verification requires that all U.S. employers complete and retain a Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. Answer: True! All U.S. employers must complete and retain a Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens. On the form, the employer must examine the employment eligibility and identity document(s) an employee presents to determine whether the document(s) reasonably appear to be genuine and relate to the individual and record the document information on the Form I-9. The list of acceptable documents can be found on the last page of the form. The USCIS offers a portal for employers and employees to learn more about the Form I-9 at Jackson & Hertogs also provides I-9 compliance services. You can read more at

IMMIGRATION SPOTLIGHT AUGUST 24, 2011 ISSUE 112

IMMIGRATION SPOTLIGHT AUGUST 24, 2011 ISSUE 112 INSIDE SPOTLIGHT U.S. CITIZENSHIP AND IMMIGRATION SERVICES New benefits for foreign entrepreneurs... 112.1 FY2012 H-1B cap update: 25,300 petitions, 8/12/2011.