Immigration Planning in 2012

by Sheela Murthy et al.

This series of articles examines some of the key immigration developments of 2011. We discuss how these developments could affect MurthyDotCom and MurthyBulletin readers in 2012 and make recommendations for strategic planning on the U.S. immigration law front in 2012. Our focus here is the forward movement of EB2 priority dates for nationals of India and China, and an analysis of the issues to help people plan and file their I-485s or obtain their immigrant visas from abroad.

Priority Date Progression in EB2 for India and China

There was extremely good news for many Indian and Chinese nationals in the second half of 2011, as the priority dates for the employment-based, second preference (EB2) green card category advanced rapidly. The cutoff dates in the December 2011 U.S. Department of State (DOS) Visa Bulletin moved forward by more than four months. This was followed by the January 2012 DOS Visa Bulletin EB2 India and China jump of almost ten additional months. The February 2012 Visa Bulletin shows the rapid forward movement in EB2 for India and China continues, with advancement of a full year. 

The new cutoff date for both EB2 India and China is January 1, 2010 in February 2012. While the March 2012 DOS Visa Bulletin has not yet been released, the DOS projects that EB2 India and China will move by a few months in March 2012. This development means that many Indian and Chinese nationals and their families are now eligible to file the final stage in their "green card" applications. Along with this filing, they can receive the benefits that accompany an application of this type, such as unrestricted employment authorization and advance parole.

Advancement in prior months led to many long-awaited green card approvals for Indian and Chinese nationals in the EB2 category. Prior to this year's forward movement, these dates were stalled with minimal movement for a long period of time. At the Murthy Law Firm, our Green Card Department has been busy filing I-485 applications for our many clients who, after a long wait, have finally reached this stage. Anyone who has seen her/his priority date become current should endeavor to file the I-485, if otherwise eligible to do so.

Planning for 2012: Priority Dates and I-485s

The rapid movement in EB2 for nationals of India and China is, of course, a welcome development for most. However, as explained in several articles available on MurthyDotCom, this rapid forward movement is a temporary phenomenon. Thus, it is unclear if the good news will continue for these applicants. For more details on the reasons for this advancement, see our October 28, 2011 NewsBrief, Visa Bulletin Predictions: Significant EB2 Movement, on MurthyDotCom.

Priority dates can move forward - as they have been - and they can move backward. This movement primarily is based on the number of green card filings with the U.S. Citizenship and Immigration Services (USCIS), to a lesser extent, filings with the DOS for consular processing. The cutoff dates are established by the DOS based on calculations of supply and demand. The DOS must balance the competing goals of ensuring that all immigrant visa numbers allocated for a particular fiscal year (FY) are utilized, while trying to avoid running out of visa numbers before the end of the FY.

Retrogression Possible

The cutoff date in the February 2012 Visa Bulletin was advanced in order to create a demand for visa numbers in upcoming months. Therefore, if the USCIS begins to receive more green card applications than expected, the DOS may find it necessary to move the cutoff dates backward - a procedure known as retrogression.

The DOS previously advised that retrogression may occur in summer of 2012. However, given the number of case filings generated by the cutoff date advancement, the DOS could need to revise their calculations. There are many factors that impact the demand for visa numbers and surprises can occur with each monthly visa bulletin.

In addition to the new I-485 filings, the use of the strategy known as EB3 to EB2 upgrading has created a demand for EB2 visa numbers that is difficult to predict. For more information on this strategy, see our July 1, 2011 NewsBrief, Considerations for EB3 to EB2 "Upgrade," also available on MurthyDotCom.

If the priority dates retrogress, it will be important for people who are current to file during the months when their respective dates are current. Visa bulletins are always issued several weeks prior to their validity. (That is, the May Visa Bulletin is issued in early to mid April, and so forth for each month in the year.) Therefore, there should be some advance notice of any retrogression.

Conclusion: Take Advantage of Opportunity to File

Unless there is some reason not to do so, those with priority dates that are current, should file or prepare to file before the end of the particular months in which their dates are current. Otherwise, they may have to wait, yet again. More information on the matter of missing filing opportunities can be found in our December 2, 2011 NewsBrief, Priority Date Finally Current! How Soon Should I-485 be Filed?, on MurthyDotCom. Those who need advice or assistance with their I-485 filings are welcome to contact the Murthy Law Firm.

Parts 1 and 2 of this article examine some of the major immigration developments in 2011, and analyze the potential impact of those developments for 2012. We previously discussed the forward movement of the EB2 India and China cutoff dates in the visa bulletin. Here we look at related matters in the H1B category: site visits and investigations, and H1B amendments in which there is relocation of the employee's worksite.

Increased Enforcement by USCIS, ICE, and DOL

One of the defining themes for 2011 has been an increase in enforcement and investigation activity by the U.S. Citizenship and Immigration Services (USCIS), Immigration and Customs Enforcement (ICE), and the U.S. Department of Labor (DOL). USCIS investigators visit the worksites of H1B workers. These investigators generally have copies of H1B petitions and knowledge of the content of each filing. When they arrive at a worksite, they primarily ask questions about the duties performed by the H1B employee and the wages paid to the employee.

More recently, we at the Murthy Law Firm have become aware of instances in which investigators ask detailed questions regarding the supervision of the H1B employee. This line of questioning is particularly troubling. It relates to the January 2010 Neufeld Memorandum on the employer-employee relationship, which has caused many problems for IT consulting companies. This seems to indicate an emphasis on this matter at the USCIS investigative level, even though the issue would have been reviewed by the USCIS prior to approval of the H1B petition in all but the oldest cases.

Common Problem with H1B Employee's Relocation

A common problem that arises with regard to site visits concerns H1B employees who work at client locations. These workers often change clients and/or locations during the course of their H1B employment. For many years, it has been the common legal interpretation and understanding that, when this occurred, it was not necessary to amend the H1B petition. Most employers simply obtained a new labor condition application (LCA) from the DOL for the new work location. The USCIS is not notified of the change unless an H1B amendment is filed. Therefore, the USCIS has no way of knowing that an H1B employee has been relocated, based solely on a new LCA.

The USCIS investigator conducts the site visit based upon the location identified in the H1B filing. If the employee has been relocated, the investigator does not find the employee at the address stated as the location of employment in the H1B petition. The personnel at the client location may not even be familiar with the individual. This results in the USCIS investigator reporting that the H1B employee is not employed pursuant to the H1B petition.

When the USCIS is unable to confirm the H1B employment, it generally sends an eMail to the employer or to the employer's attorney, asking for confirmation of ongoing employment and the location of that employment. These eMail inquiries typically have deadlines of only two or three days. If the employer can satisfactorily respond, this might resolve the issue. If not, a notice of intent to revoke (NOIR) the H1B petition may be forthcoming, which places both the employer and the employee in serious jeopardy.

H1B LCA Update vs. H1B Amendment

As described above, one of the common problems faced by H1B consulting employees is a USCIS site visit following work relocation. The USCIS is not made aware of the filing of a new LCA for the new worksite location, and the investigator, therefore, goes to the original worksite.

It is becoming increasingly clear that it is no longer safe to rely solely on updating the LCA in many instances when an H1B employee changes work locations. In addition to concerns about site visits, we have also begun to see new wording in USCIS requests for evidence (RFEs), asking for proof of H1B amendments for any relocation of the employee during the H1B petition validity period. The General Counsel of the USCIS California Service Center also has publicly indicated the opinion that an amended H1B is required in addition to obtaining a new LCA. It is possible that more definitive guidance on this matter will be released by the USCIS later in 2012, but this is not a certainty.

Background on Filing LCA Amendments for H1Bs

The legal issues on the appropriate procedures for relocating H1B employees are somewhat complex and beyond the scope of this article. For many years it generally was understood that H1B workers could be relocated based on updated LCAs. The USCIS policy, however, is clearly moving to a more restrictive interpretation.

When planning for 2012 and beyond, therefore, employers who do not wish to battle the USCIS on this matter should shift from the traditional practice of relying on LCA updates when moving their employees. Many companies are reluctant to adopt the practice of filing an H1B amendment, as it is often administratively impractical, and is significantly more expensive. However, without an H1B amendment, there is increased legal exposure for both the employer and the employee if the USCIS determines that an employer should have amended the petition.

Conclusion

It is always important to identify trends and make any needed changes. The emerging trend toward restrictive interpretations regarding the filing of H1B amendments is having an impact on H1B practice for employers, particularly IT consulting companies. If this policy shift continues, it is likely to require changes for many employers in 2012 and beyond.

"This article originally appeared in Murthy Bulletin on www.Murthy.com Reprinted with permission"

About The Author

Attorneys from the Murthy Law Firm. Sheela Murthy is the founder of the Murthy Law Firm, which consists of approximately 85 full time attorneys, paralegals, and support staff, who provide excellent service in the area of U.S. Immigration Law to clients worldwide. The Murthy Law Firm handles cases ranging from Fortune 500 companies, mid-sized and small companies, to individuals who are undergoing the U.S. immigration process. A graduate of Harvard Law School with an LL.M degree and herself an immigrant, Attorney Murthy understands the complexities of immigration and empathizes with those faced with its challenges.

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