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Immigration Developments in 2011
This article summarizes the most significant developments in immigration law during the 2011 calendar year.
Registration Requirement for H-1B Petitions
In early January 2011, USCIS published a proposed rule to establish a mandatory, internet-based, electronic registration process for U.S. employers seeking to file H-1B petitions for workers that are subject to either the 65,000 or 20,000 annual numerical limitations.
According to USCIS, this rule will reduce costs for some employers and increase costs for others. For employers that are not allocated a cap number and therefore do not ultimately file a petition, there will be significant savings. Employers that are allocated a cap number and consequently file a petition will experience the new, additional cost of filing the registration.
President Obama Supports Foreign Students’ starting a Business in the U.S. and Immigration
On January 25, 2011, President Barack Obama made his annual State of the Union address. He called on Republicans and Democrats to help rebuild America to increase the country’s competitiveness.
When talking about education, President Obama said, “Others come here from abroad to study in our colleges and universities. But as soon as they obtain advanced degrees, we send them back home to compete against us. It makes no sense.” He asked to stop the expulsion of talented, responsible young people who could be staffing research labs or starting new businesses, which would further enrich America.
He again called on Republicans and Democrats to work together to take on, once and for all, the issue of illegal immigration.
USCIS to Issue Employment Authorization and Advance Parole Card for Adjustment of Status
On February 11, 2011, U.S. Citizenship and Immigration Services (USCIS) announced that it is now issuing employment and travel authorization on a single card for certain applicants filing an Application to Register Permanent Residence or Adjust Status, also known as Form I-485.
The card looks similar to the current Employment Authorization Document (EAD) but will include text that reads, “Serves as I-512 Advance Parole.” A card with this text will serve as both an employment authorization and Advance Parole document. The new card is also more secure and more durable than the current paper Advance Parole document. It is only available to certain individuals who have pending family or employment based I-485 Forms.
An applicant may receive this card when he or she files an Application for Employment Authorization, Form I-765, and an Application for Travel Document, Form I-131, concurrently with or after filing Form I-485. USCIS will continue to issue separate EAD and Advance Parole documents as warranted. For example, you will receive an EAD without permission to travel if you do not request Advance Parole or if your Form I-765 is approved but your Form I-131 is denied.
USCIS Improves Delivery of Immigration Documents through Secure Mail Initiative
On May 2, 2011, U.S. Citizenship and Immigration Services (USCIS) announced that it has fully implemented the Secure Mail Initiative (SMI), which uses U.S. Postal Service (USPS) Priority Mail with Delivery Confirmation to deliver certain immigration documents in a safe, secure and timely manner.
Made possible by a partnership between USCIS and the USPS, the SMI enables USCIS to confirm delivery of permanent resident cards and documents pertaining to travel and employment authorization. With USPS tracking information, USCIS customers can easily stay up-to-date on the delivery status of their documents and USCIS can confirm that these essential documents were delivered to the proper address.
SMI provides USCIS customers many benefits, including:
Customers who receive notices of approval can contact USCIS’s Customer Service Center at 800-375-5283 to request tracking information for their documents. USCIS customer service representatives will provide customers with their USPS tracking number and current USPS delivery status.
USCIS Tightens the H-1B Portability Rule
The AC21 and H1B portability provisions state that a nonimmigrant, who was previously issued a visa or otherwise provided with nonimmigrant H1B status, is authorized to work upon the filing of an H1B petition by a new prospective employer if three requirements are met:
a) the non-immigrant has been lawfully admitted to the United States;
b) an employer has filed a non-frivolous petition for new employment for the non-immigrant worker prior to the expiration of his/her period of authorized stay; and
c) the non-immigrant worker has not been employed without authorization.
Effective as of April 7, 2011, USCIS requires foreign nationals to be in H-1B status before doing a job transfer under the portability rule.
USCIS Loosens Immigration Policy to Spur Job Creation
On August 2nd, USCIS has announced and outlined a series of policy, operational, and outreach efforts to promote the US economy and investment by attracting foreign entrepreneurial talent of exceptional ability or someone who can create jobs, form startup companies, and invest capital in areas of high unemployment.
This initiative mainly covers four parts below practically:
These enhancements will include three fundamental changes:
c. The initiative will expand the Premium Processing Service to immigrant petition for multination executives and managers (EB-1(c))
- USCIS proposes to accelerate its processing of applications for job-creating projects that are fully developed and ready to be implemented. USCIS will also give these EB-5 applicants and petitioners the option to request Premium Processing Service (talk about later in this article), which guarantees processing within 15 calendar days for an additional fee.
- USCIS proposes the creation of new specialized intake teams with expertise in economic analysis and the EB-5 Program requirements. EB-5 Regional Center applicants will be able to communicate directly with the specialized intake teams via e-mail to streamline the resolution of issues and quickly address questions or needs related to their applications.
- USCIS proposes to convene an expert Decision Board to render decisions regarding EB-5 Regional Center applications. The Decision Board will be composed of an economist and adjudicators and will be supported by legal counsel.
The Premium Processing Service provided by USCIS will significantly shorten the processing time for the immigrant petitioner down to 15 calendar days. That means when the Form I-907, Request for Premium Processing Service, is received by USCIS at the correct filing address noted on the form, USCIS will issue and serve the petitioner or applicant an approval notice, a denial notice, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation within the 15 calendar day period. If the petition or application requires the submission of additional evidence or a response to a notice of intent to deny, a new 15 calendar day period will begin upon receipt by USCIS of a complete response to the request for evidence or notice of intent to deny.
d. The initiative will enable the owner of the company to apply for H-1B.
USCIS has updated the FAQs to clarify an H-1B beneficiary, who is the sole owner of the petitioning company, may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B non-immigrant visa. That is to say, a sole owner of a company may apply for H-1B visa for him/herself.
USCIS Reaches FY 2012 H-1B Cap
On November 23, 2011, USCIS announced that it had received a sufficient number of petitions to reach the statutory cap for FY 2012 as of November 22, 2011. USCIS also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption as of October 19, 2011. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2012 that are received after November 22, 2011.
However, USCIS continues to accept cap-exempt petitions, DOD petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2012.
The Bill Removing Per-country Caps on Employment-based Immigration Visas Passed the House
The Fairness for High-Skilled Immigrants Act (H.R. 3012), sponsored by Congressman Jason Chaffetz (UT-03), passed the House of Representatives by an overwhelming vote of 389 to 15 on November 29, 2011.
Currently, the total number of employment-based immigration visas made available in any foreign country cannot exceed 7 percent of the total number of such visas made available for each category (EB-1, EB-2, EB-3, etc.) in that year, and this act will eliminate the employment-based per-country cap entirely by fiscal year 2015 and raises the family-sponsored per-country cap from 7% to 15%.
The bill is beneficial for current and potential EB-2 beneficiaries from India and China. Removing the per-country cap means beneficiaries from those two countries can break the limit and obtain more visa numbers each fiscal year. It will directly accelerate the current marching speed of those countries’ cut-off date.
In the meantime, the act will also influence immigration workers from countries other than China and India. The removal may allow Chinese and Indian workers to get the visa numbers that used to belong to other nationals.
There is no doubt that without the per-country limit, the employment-based immigration visa numbers will be fully used, and there will be a cut-off date for EB-2 beneficiaries from every country.
USCIS Develops a New Online Filing System
According to Mr.Alejandro Mayorkas, director of the U.S. Citizenship and Immigration Services (USCIS), the agency is currently developing the “Transformation System”, which will “transform” USICS from a “paper-based agency into an electronic, online organization.”
The New System
The new technology is called the “Electronic Immigration System (ELIS)”. Instead of releasing the whole system at once, USCIS will periodically release it, and each subsequent release will cover a different kind of immigration benefit or add new features to the existing system. The first release will cover the benefit type of “Extend/Change Nonimmigrant Status” (Form I-539).
USCIS also released an informational video to demonstrate the online processing at http://blog.uscis.gov/. From the video, we can tell that the applicant needs to register a new account, fill out the personal information and select the case type. The program first checks the applicant’s eligibility for that type of case by asking questions. Applicants can also submit additional evidence online by submitting the photocopies of required documents.
Employment-Based Visa Bulletin 2011
Visa numbers for the EB-1 category remained current throughout the year.
In January 2011, EB-2 cut off dates were set at June 22, 2006, for mainland Chinese nationals and May 8, 2006, for Indian nationals. The cut off dates then progressed rapidly in the second half of the year, ending the year at March 15, 2008, for both Chinese and Indian nationals. Moreover, the Department of State released the latest visa bulletin for January 2012 on December 9, 2011. In the EB-2 category, the cut-off dates moved forward from March 15, 2008 to January 1, 2009 both for Chinese Mainland nationals and Indian nationals. That is to say, with EB-2 cut off dates’ rapid progress, both Chinese and Indian nationals may wait less time to file their adjustment of status petitions.
Also in January 2011, EB-3 cut off dates were set at December 15, 2003, for mainland Chinese nationals and February 1, 2002, for Indian nationals. The cut off dates then progressed continuously in the months following, ending the year at September 8, 2004, for mainland Chinese nationals and August 1, 2002, for Indian nationals.
This year has brought many new developments to immigration.
Our firm received 286 NIW approvals, 206 EB-1 approvals, 815 I-485 approvals, as well as 269 H-1B approvals in 2011.
In addition, we made significant progress in the EB-5 category. On July 25, 2011, we successfully applied the designation of an EB-5 regional center for a client in California.
This particular regional center was filed on November 22, 2010 by Attorney Zhang, right before the USCIS imposed a very high filing fee ($6,230) on I-924, the regional center designation application. It took about 8 month to secure this approval. Currently, several attorneys in our firm are working on EB-5 Regional Center Designations and EB-5 petitions for our clients.
As 2012 is just around the corner, we would like to extend a warm greeting to the USCIS officers who worked tirelessly this year to evaluate our cases and improve their administrative procedures.
We are excited to see what new developments arise next year. Finally, we would like to extend our warmest greetings to our clients who have supported and trusted us. May you and your family have a wonderful New Year! We hope that your American dreams come true in 2012!
Founded in 1996, Zhang & Associates, P.C. offers legal services to clients nationwide in all aspects of U.S immigration law. We have successfully handled thousands of immigration cases.
At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, PERM, and I-485 cases. In the past fifteen years, we have successfully helped thousands of clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (firstname.lastname@example.org) for a free evaluation.
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