Immigration Newsletter

Special News Bulletin:
H-1B cap update: Nebraska, Vermont and Texas INS Service Centers to temporarily stop processing H-1B petitions.

The INS's Immigrant Services Division (ISD) has instructed the Nebraska, Vermont and Texas Service Centers to temporarily cease processing H-1B petitions, subject to the 115,000 visa limit, until further notice. The ISD measure will help the California Service Center catch up with the other INS service centers by allowing it to process its huge backlog. All service centers will continue to adjudicate H-1B petitions, subject to the cap, that are returned with a request for additional evidence. We will notify you when the INS Service Centers resumes adjudicating new applications.

As of March 31, 1999 the INS had approved 92,638 new H-1B visa petitions. At this rate, the 115,000 H-1B cap will be reached by the end of May. At that time no new H-1B visas will be granted until October 1, 1999, the start of the new INS fiscal year (FY 2000).

115,000 H-1B Cap Update
Last year Congress raised the annual limit for H-1B approvals from 65,000 to 115,000. According to a recent update from the INS, approximately 90,000 H-1B approvals have been issued to date. Furthermore, the INS anticipates that the 115,000 limit may be reached in April or May of this year.

Once the H-1B cap is reached, new H-1B numbers will not become available again until October 1st, which is the beginning of the INS fiscal year. The cap affects new H-1B cases only. In other words, individuals already in H-1B status who submit an application to change employers will not be affected. Especially hard hit by the H-1B cap will be F-1 students in practical training with work authorization cards expiring this summer. The INS has yet to say how it will treat students with change-of-status applications on file but not approved before the cap is hit. An interesting footnote to the cap update is the controversy surrounding the INS methodology for counting H-1B approvals. There have been serious questions raised about the INS methodology. It is possible that H-1B extension or change of employer cases have been mistakenly counted under the cap. The American Immigration Lawyers Association is currently working to ensure that the INS has not made any mistakes in the H-1B count.

New Standard for National Interest Waiver Applications
There has been a steady increase in the number of National Interest Waiver (NIW) cases filed and granted in recent years. For individuals with advanced degrees working in areas that have a beneficial impact on the economy, healthcare, education, national defense, worker safety, or other areas important to the national interest, the NIW has served as a much faster alternative to the lengthy Labor Certification process. According the INS, notwithstanding high approval rates in the past, very few cases filed actually fit within the intended definition of national interest. In the recently decided New York State Department of Transpiration (NYSDOT) case, the INS Administrative Appeals Office set forth a new and stricter NIW standard. The NYSDOT case has had a chilling effect on NIW approval rates. Under the new standard, the INS now essentially considers the following four factors when evaluating requests for National Interest Waivers.

The new standard has proven difficult to understand and apply for the Immigration Officers who actually adjudicate cases. The last prong of the test is particularly nebulous and the INS is still grappling with how to interpret it. The new standard is being applied to all new cases and retroactively to all pending cases as well.

H-1B regulations proposed by Department of Labor
The increase in the yearly allotment of H-1B visas came with a hefty price tag. Although Congress increased the number of visas available over a three-year-period, employers filing new H-1B petitions must pay an additional $500 (to pay for the training of U.S. Workers) in addition to the standard $110 filing fee. The Department of Labor has now released its proposed regulations to implement the new H-1B law, which if passed might become effective this summer. Some issues covered in the regulations include:

• Employment relationship-new definition: The DOL will use the common law standard when determining an employment relationship (e.g. control over position and furnishing of tools and equipment);
• Elimination of benching: Benching, or the placing of an H-1B employee in an unpaid nonproductive status, other than a leave of absence, will be prohibited;
• Electronic posting: In many cases, employers will be allowed to post H-1B notifications electronically by e-mail or on the company's intranet;
• Recruitment: The DOL will outline new documentation procedures for demonstrating that a good-faith effort has been made to comply with industry-wide standards or recruitment;
• Nondisplacement: The DOL will outline new documentation procedures for H-1B dependent employers to demonstrate that former American employees will not be displaced by an H-1B foreign national;
• New Definitions for "worksite" and "place of employment": The regulations generally define both of these terms as the place where the work will be performed.

Department of Labor Update: New Electronic LCA Filing:
The Department of Labor (DOL) has introduced a new electronic filing system for ETA-9035 Labor Condition Application (LCA) filing. The LCA is a preliminary step to obtaining an H-1B approval from the Immigration Service. The DOL initially promised that under the new system, LCAs could be approved in one minute! Given the one to two month processing times in some DOL regions, this new system was supposed to provide welcome relief. Unfortunately, the electronic filing system has not yet lived up to the DOL promises. Due to technical problems, LCAs have taken as long as two weeks to be approved. The DOL is working to correct the problems and it is anticipated that the one minute processing will eventually become a reality. It is also expected that the new electronic system will free up DOL resources so that the current backlog in ETA-750 permanent labor certification processing will be addressed.

State Department Introduces New Passport
The State Department has introduced new United States passports. These new passports include computer generated digital photographs as an additional security feature in order to reduce the incidence of photograph substitution and identity fraud.

Section 110 Revisited
Section 110 stipulates that the INS should devise a system to record all alien arrivals and departures at airports, seaports and land borders. This bill was included as part of the omnibus budget bill signed by Congress in October. The INS has had some difficulty developing and implementing a workable exit-entry management system and the deadline for this project has been extended to March 30, 2001.

Labor Certification Processing Times: Coast to Coast