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April 18, 2012

H-1B Quota - New Numbers Show a Slight Slowing of Usage

hourglass and white figure.jpgThe H-1B quota count came out again yesterday. USCIS released the following quota numbers:

  • Bachelor's degree quota: approximately 20,600 petitions received

  • Advanced degree quota: approximately 9,700 petitions received
  • This tells us that those petitioners and employees who had a job in hand by April 1, did not delay in getting their petitions submitted once the filing period started. However, this may be good news for those who are still job searching, preparing petitions, or negotiating their H-1b petitions with employers. Usage seems to be slowing, but a word of caution that the numbers can surge upwards again once new graduates firm up job offers come May and June. Best of luck to those making applications. Call the attorneys at Law Offices of J Craig Fong for your consultation on an H-1B petition. ---ecf

    April 13, 2012

    Retrogression for EB-2 India and China and Age Outs: May 2012 Visa Bulletin Report

    Retrogression has hit the EB-2 preference categories for India and China. USDOS released the May 2012 visa bulletin showing EB-2 priority dates of August 15, 2007 for both countries. The EB-3 priority dates have moved forward about one month, with the exception of India which forward about a week to September 8, 2002. Families with dependents who will age out at age 21 should call the attorneys at Law Offices of J Craig Fong to talk about options now. ---ecf
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    The family-based visa bulletin shows slow movement as well:
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    April 3, 2012

    F-1 Cap Gap and H-1B Issues

    help button.jpgF-1 cap gap issues cause a lot of confusion, but here is a quick guide to help you all you need are clear answers. I posted a similar blog entry last year. The full guidance from USCIS can be found here:

  • Can an F-1 student file an H-1B petition during the so-called grace period or 60 days after their I-20 or OPT expires? Yes.

  • Do the cap gap protections extend to someone who requested consular processing on their I-129? No.

  • Does the 90 day limitation on unemployment still apply during an OPT extension granted from a cap gap application? Yes.

  • Can an F-1 student travel while on the automatic cap gap employment extension and return as an F-1 student? No.
  • While these quick tips are meant to provide a few quick answers, it's always best to have your situation analyzed by the business immigration attorneys at Law Offices of J Craig Fong. Our attorneys have the experience you need, and are often requested by llocal and national bar associations to provide training courses to other attorneys. Call today for a free consultation. ---ecf

    March 19, 2012

    PERM Processing Times

    forest for the trees2.jpgThe days of PERM processing within a week or two are long gone, but the business immigration attorneys at the Law Offices of J Craig Fong, have seen a decrease in time for adjudications at US Dept of Labor.

    Although processing times still vary, we have recently seen certifications within 2 months of filing. The icert portal reports that analyst reviews are hovering around the submission date of November 2011. That's about 4 months from submission to getting an initial response.

    In the world of audits, Department of Labor reports that they are working on cases originally submitted around July 2011. As many had expected, supervised recruitment is still an issue. In a report summarizing PERM cases filed between October 1, 2011 to March 5, 2012, the Office of Foreign Labor Certification (OFLC) confirmed 26,100 active cases as of March 5 with only 4% of cases undergoing supervised recruitment. While it's still early in the fiscal year, we also know it takes time for a case to proceed from submission to audit, it was notable that a full 26% are in audit review. We may expect an increase in supervised recruitment requests.

    Understanding how to protect your PERM case from audit or denial is tricky. There are no guarantees with this system and it is fraught with risk. One must see the forest for the trees. There are very specific timeframes and requirements that have to be observed with precision, but your attorney must help you keep sight of the big picture, too. Many people contact me after a labor certification is approved but with a denied I-140 in hand. While you can always start over if you've extra time left on your current nonimmigrant status, it's a given that processing times are still significant. This makes it as important as ever to know that your labor certification application is in the hands of someone with experience, someone who can get the job done the first time. Call The Law Offices of J Craig Fong for a consultation to discuss your PERM case to get a real view of what you might be dealing with in PERM. ---ecf

    March 13, 2012

    Preparing H-1B Petitions With Multiple Worksites

    Vector arrows.jpgH-1B news. April 1, is just around the corner. The so-called "H-1B season" is upon us with preparations in high gear for early filings. While I won't give predictions or insight into how long this quota will last, the important thing is to prepare your case well and do it as early as possible.

    This blog entry will focus on a 2010 H-1B USCIS memo that was updated on March 12, 2012 discussing "employer-employee" relationships. Simply put, this memo gives guidance on how to prove up cases involving independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. Having represented a range of employers with H-1B workers who travel about for their jobs in technology, accounting and finance, and business consulting, the attorneys at the Law Offices of J Craig Fong know the challenges facing employers in initial H-1B petitions, updating LCA requirements, and keeping employees in status throughout their H-1B stay, wherever they may be performing services. Such employers must know that they have additional responsibilities in preparing itineraries and documenting prevailing wages in different geographic areas.

    If you or your employer have a non-traditional employment arrangement, such as one involving different worksites, contact the attorneys at Law Offices of J Craig Fong for a free initial consultation. ---ecf

    February 7, 2012

    H-4 Work Authorization and Other Reforms to Attract and Retain Highly Skilled Workers

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    Last week, Department of Homeland Security announced several proposed reforms to "attract and retain highly skilled workers." These reforms include employment authorization of certain H-4 spouses and other concrete incentives.

    DHS released a press release describing these administrative reforms, which would impact the benefits and the adjudications process in several different ways, ultimately benefiting employers, universities, scholars and workers (and their spouses):

  • Allowing H-4 dependent spouses to apply for EADs (employment authorization documents) if the principal H-1B spouse has extended their period of stay under AC 21 Section 104(c) or 106(c)
  • Expanding STEM OPT extensions to F-1s whose underlying or previous degrees were STEM related, even if their current course of study is not a STEM major
  • Expansion of the list of eligible STEM majors
  • Allowing F-1 spouses to engage in part-time studies other than vocational or recreational classes
  • Giving universities and colleges more flexibility to increase the number of DSOs or Designated Student Officers at universities and colleges to meet both the administrative and guidance needs of incoming students
  • Increase the type of evidence that Outstanding Professors and Researchers can provide in order to establish eligibility to include "comparable evidence"
  • Allow for the 240-day continued employment authorization of E-3s and H-1B1s upon timely extension, which is already the case for H-1s and L-1s

    At present, the proposed reform to allow EADs for H-4 dependent spouses is in rulemaking, though at a very early stage. We should be prepared to hear updates on the process of each of these administrative reforms, though we have been notified that changes will take time. It is still encouraging in that we have some concrete information on how such reform will impact the highly skilled workers and their spouses who are waiting in the priority date queues or just beginning to prepare for H-1Bs, labor certifications, national interest waivers, extraordinary ability workers and outstanding researcher or professor petitions, etc.

    If you are interested in learning more about these administrative reforms, be sure to subscribe to our blog for updates. If you have a case that you'd like for us to assess, call the business immigration law attorneys at the Law Offices of J Craig Fong. ---ecf

  • October 21, 2011

    H-1B Quota October 21, 2011 - Advanced Degree Cap Filled

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    The last update from USCIS announced that the US advanced degree cap for H-1Bs has been filled.

      The regular H-1B quota has accepted 46,200 petitions leaving 18,800 slots available for new H-1B cases to be filed.

      We can expect this last batch of H-1B slots to fill up quicker since those with advanced degrees will now be making applications towards the regular H1-B quota.

      Remember that if you have an H-1B pending, even with an outstanding RFE pending, the USCIS has allocated an H-1B for you if your case is ultimately granted. If you would like a free consultation regarding an H-1B filing this season, give the business immigration attorneys at the Law Offices of J Craig Fong a call now. ---ecf

    October 8, 2011

    Labor Certification, Prevailing Wages, and H-1B Timing Issues

    hanging onto time.jpgSeptember 30 marks the end of fiscal year for 2011. I wanted to review some statistics regarding labor certification information by the US Dept. of Labor which shows some interesting statistics about labor certification processing times and audits between October 1, 2010 and May 31, 2011.

    Labor certification audits are still taking about a year for review and out of approximately 22,000 of the cases that were pending as of May 31, 2011, only 44% of those case were pending initial analyst reviews. The rest of the 56% were either in audit, appeal, or at the sponsorship verification stage. Since DOL reported a 63% increase in applications compared to 2010, we can probably expect that audit queue to increase.

    As many of you may have noticed, prevailing wage requests are taking more than 3 months for a determination. Those who might need to file labor certifications before the end of the year in order to preserve the ability to extend an H-1B might begin thinking about leaving the US and recapturing H-1B time later if you are unable to file the initial labor certification 365 days before your anticipated H-1B expiration date. While admittedly, this isn't the ideal scenario, it stops the H-1B clock, even if momentarily... so that you can plan for a timely extension when you're eligible. Call the business immigration attorneys at the Law Offices of J Craig Fong if you'd like an assessment of your labor certification or H-1B case, don't wait another second! --ecf

    September 10, 2011

    H-1B Quota Numbers September 9, 2011

    In the last month, usage of H-1B numbers have continued to crawl upwards:

  • The regular H-1B cap has seen an increase from 25,300 petitions received to 32,200 as of September 9, 2011

  • The advanced degree cap has moved toward the 20,000 cap from 14,700 petitions received to 16,700 received as of September 9, 2011

  • With California unemployment rates hitting 12.1%, it looks like the H1B program may remain open for the long-term, ultimately giving H-1B job seekers additional time to find offers of employment. If you are an F-1 student on OPT seeking an appropriate H-1B job offer, please remember that maintaining status is crucial unless you are able (and willing) to consular process. ---ecf

    April 8, 2011

    H-1B Quota - 2012 Cap

    So far, the USCIS has announced that it received 5,900 H-1B applications for the normal quota and an additional 4,500 for the advanced degree quota. These numbers were released yesterday, April 7, 2011.

    In years past, many remember that the H-1B quota was exhausted as early as the first day of applications. Last year, the H-1B cap was not reached until January the following year. I would anticipate that with the economy still rebounding, the H-1B quota will last a significant amount of time. This will also ensure that everyone who can find a job offer this year will have a chance to make an H-1B application. Please contact the business immigration attorneys at Law Offices of J Craig Fong for a free consultation if you are interested in applying for an H-1B this year! ---ecf

    April 4, 2011

    Chinese Companies Suspected of Fraud

    It's H-1B season and the business immigration attorneys at the Law Offices of J Craig Fong are busy once again fielding phone calls and inquiries regarding employment-based visas, including those of L-1 and new company visas. In the past few years, the USCIS and US Department of Labor have suspected newer and small companies of fraud, especially within the immigration system. New procedures and increased scrutiny of employment-based cases have made H-1B petitions and H-1B visas especially more difficult to attain.

    Handshake.pngToday's Wall Street Journal ran a story about the very disturbing trend revealed by the Securities and Exchange Commission that small private companies are merging with public shell (dormant) companies instead of going through more rigorous methods of becoming public, avoiding initial public offerings. SEC Commissioner, Luis Aguilar announced that since January 2007, 600 of such "backdoor registrations" occurred and most notably, more than 150 of these occurred in and around China.

    It's no secret that the USCIS, as part of the US Department of Homeland Security (USDHS) is engaged in "national security, fraud detection and prevention." The DHS now has an unit attached to it which investigates corporations suspected of defrauding the government specifically through the H-1B program and other visa categories. This has made adjudications of all H-1B applications much more difficult and I believe we will see strict review of all H-1B and work related applications. ---ecf

    March 19, 2011

    Expedited Processing for Japanese Nationals Affected by Earthquake and Tsunamis

    The USCIS this week provided information on the types of immigration applications for Japanese nationals who are affected by disasters caused the earthquakes and tsunamis last week. In limited circumstances, the USCIS can expedite the processing of the following types of requests/cases:

  • requests for extensions or change of non-immigrant status even if the request is made after the applicant's stay has expired
  • re-parole of individuals who have already been granted parole by USCIS
  • expedited processing of advanced paroles
  • expedited adjudication and approval for requests for off-campus employment in the case of F-1 students suffering economic hardship
  • expedited employment authorization

  • If you or someone you know is eligible for these services, please contact the attorneys at Law Offices of J Craig Fong for assistance in making these applications to the USCIS. ---ecf

    March 11, 2011

    Earthquake in Japan: Tsunami Warnings for Hawaii and West Coast

    Japan: an 8.9 earthquake has rocked Japan today, marking the most powerful earthquake in Japan's recorded history. This quake is the fifth most powerful in the world since 1900, says the U.S. Geologic Survey. Tokyo reports massive aftershocks. Narita Airport, Sendai Airport remain closed, although Haneda Airport has reopened already. The immigration attorneys at Law Offices of J Craig Fong who practice in business immigration, family-based immigration, removal defense and appellate work extend sympathy and concern to all our Japanese clients and those with family and friends abroad who are affected by this devastating disaster.

    Over the years, the immigration attorneys at Law Offices of J Craig Fong have worked proudly in the Japanese immigrant community, having represented multinational executives and managers for some of Japan's largest corporations, professors providing invaluable research and teaching in top U.S. universities, professional employees working in companies based in Little Tokyo and in Japanese American non-profit organizations, and of course, countless individuals and families of Japanese descent.

    With early reports of the death toll, the true damage the earthquake has caused remains unknown at this moment. We do know that this earthquake may cause tsunamis powerful enough to engulf or wash over small islands in the Pacific causing more damage and posing continued danger to those in the Pacific. For clients wishing to return to Japan in the weeks to come, please call the attorneys at Law Offices of J Craig Fong for guidance on how to check the US Department of State for travel warnings and other restrictions. ---ecf

    March 3, 2011

    PERM Labor Certifications - DOL Says Stricter Scrutiny Ahead

    Over the years, the business immigration attorneys at Law Offices of J Craig Fong have reported on PERM processing times, which have varied at just several days to several weeks to over a year for initial adjudication. Currently, the Office of Foreign Labor Certification "OFLC" is reporting that initial adjudications are being completed in less than a month, which is a welcome relief for those on H-1B, H-1B1, TN, E-3 or other status where they may be running out of time to complete the labor certification process.

    In terms of an update, the OFLC released it's annual performance report on FY2010 just this week. As many of you might know, the PERM application (Form ETA9089) is set to expire in June 2011, and the new form will be much longer and detailed (possibly 20 pages long as opposed to the current 10 pages). The annual report also makes this statement: "OFLC will apply stricter scrutiny to applications." In addition, the Department of Labor also announced that they will propose that employers pay a user fee to fund the PERM, H-2A and H-2B programs. Many people seeking PERM have already dealt with issues of eligibility on those dreaded Request for Evidence (RFEs) for nonimmigrant statuses and now the hurdles to filing a successful PERM case have also increased. It is more important than ever to prepare your PERM case early with an experienced immigration attorney especially one who will take the time to explain what employers and applicants should expect throughout the pre-filing and adjudications period for PERM, because be it slow or fast, OFLC is implementing much stricter scrutiny on all applications. For a free initial consultation on a PERM case, call the attorneys at Law Offices of J Craig Fong. --ecf 577.jpg,

    February 15, 2011

    Employment Authorization and Advance Parole Cards

    Clients who file their permanent residency applications through Law Offices of J Craig Fong are always advised to use employment authorization and advance parole (often referred to as "travel permit") documents with caution. As of February 11, 2011, USCIS has begun issuing employment authorization and advance parole documents in ONE SINGLE CARD, and as a result, the attorneys at Law Offices of J Craig Fong are concerned that applicants for permanent residency do not utilize the card without a careful analysis of whether using the card might jeopardize their current status or prevent them from re-entering the US after traveling abroad!Screen shot 2011-02-15 at 12.59.51 PM.png

    For many applicants who are applying for greencards through employment, using an employment authorization card with a company other than the sponsoring employer can be a violation of the applicant's current non-immigrant visa status. In some cases, this can result in a denial of the entire adjustment of status application!

    It is very common for some applicants to be granted the advance parole document by USCIS, although leaving the country, even with the advance parole in hand, could bar them from re-entering. This scenario is typical for those who face the 3 or 10 year bar because of unlawful presence. Please contact the attorneys at Law Offices of J Craig Fong if you or someone you know is applying for permanent residency. ---ecf