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H-1B'S To Move Faster; Perm Approval Stats Down; AAO Adjudication Times Too Long; L-1 Visas Using Reciprocity Schedule Instead Of Petition Validity Dates; China Non-Immigrant Visa Processing Speeding Up

by Alan Lee

H-1B season is upon us again with 1st petitions for cap numbers being accepted on April 2, 2012. H-1B visas are for specialized occupation individuals whose positions require a bachelor's degree or its equivalent in the specialty. The annual cap on the numbers is approximately 65,000 with an additional 20,000 being reserved for those with U.S. master's or higher degrees. While petition filing can begin in April, the earliest date for work to begin is October 1, 2012, the beginning of fiscal year 2013 (10/1/12-9/30/13). H-1B practitioners are particularly relieved that U.S.C.I.S. did not push forward with its proposed rule of employer advance registration prior to filing H-1B petitions. (See "Registration Requirement for Petitioners Seeking to File H-1B petitions on Behalf of Aliens Subject to the Numerical Limitations," Federal Register, Volume 76, No. 42, March 3, 2011). The proposed rule was opposed by many in the public comment stage including the Small Business Administration Office of Advocacy. Looking at the present state of the economy, H-1B visas can be expected to move much faster than in the past two fiscal years in which the cap was only reached in January and November. Movement should be brisk despite the efforts of Congress, U.S.C.I.S., and the American consulates to restrict H-1B visa use by computer consulting companies, which are prime users of the visa. A good watchword for employers is to begin planning now for H-1B sponsorship if thinking of hiring individuals for new cap-subject H-1B's in fiscal year 2013.

The Department of Labor released labor certification statistics as of February 15, 2012, showing that the rate of labor certification approval in fiscal year 2012 thus far (from October 1, 2011) dipped slightly below 75% as it processed 16,555 PERM applications, approved 12,350, denied 3312, and had 893 withdrawn. Cases submitted in October 2011 were just being reached for 1st reviews (4-5 months); audited cases in which further evidence was requested which were first submitted in June 2011 were being reached for decision (8-9 months); regular appeals were being adjudicated for cases submitted in August 2010 (2 1/2 years); and clear government error appeals were current. As this country's economy now appears to be moving in the right direction and companies are again hiring, the Labor Department may wish to exhibit a lighter touch in its decisions and give employers the benefit of the doubt in close cases.

Appeals of U.S.C.I.S. decisions at its administrative appeals body, the Administrative Appeals Office, as of February 1, 2012, were still problematic in a number of categories as appeals for H-1B denials were taking 22 months; L-1 denials 23 months; EB-2 advanced degree professional cases 24 months; EB-3 skilled or professional workers 35 months; and I-601 waivers for a ground of inadmissibility 26 months. In many cases, especially in non- immigrant situations such as H-1B and L-1, appeals are pointless given the immediate needs of the employer and the extreme length of time to adjudicate appeals.

The Department of State in its final rule of February 14, 2012, pertaining to the issuance of full validity L visas to qualified applicants, decoupled L-1 visa validity dates from petition validity dates and its officers can now issue L-1 visas in accordance with the State Department's reciprocity schedule with other countries. A reciprocity schedule can be roughly said to be a tit-for-tat chart in which one country does to another country's nationals what that country does to its nationals. If the other country gives longer visa validity to U.S. citizens in a certain visa category, our State Department is likely to reciprocate by extending the same time period to the other country's nationals. Of course, even though the L-1 visa on the passport may be longer than the L-1 petition date as given by U.S.C.I.S., the L-1 holder can only be admitted so long as the petition is still valid.

In the quest to bolster the country's economy, the President announced on January 19, 2012, that the Departments of State and Homeland Security were working together to improve and speed up the visa process for certain categories of travelers. A main group to be benefited was Chinese tourists who spent more than $6,000 per person per trip according to the Department of Commerce. Gary Locke, the U.S. ambassador to China, later stated that 50 new consular officers would be assigned to China; that a new pilot program would allow consular officers to waive interviews for some qualified non- immigrant applicants renewing same type visas within four years of expiration of the previously held visa (this would apply to B visitors for business/pleasure, C transit passengers, D crewmembers, F students, J exchange visitors, M nonacademic students, and O extraordinary ability workers); and that the U.S. would reopen its former embassy consular facility in the First Diplomatic Neighborhood of Beijing later this year which would increase interviewing capacity in Beijing by 50%, or as many as 150,000 visas.

This article 2012 Alan Lee, Esq.

About The Author

Alan Lee is a 30+ year practitioner of immigration law based in New York City holding an AV preeminent rating in the Martindale-Hubbell Law Directory and registered in the Bar Register of Preeminent Lawyers. He was also recently named to the New York Super Lawyers list. He was awarded the Sidney A. Levine prize for best legal writing at the Cleveland-Marshall College of Law in 1977 and has written extensively on immigration over the past years for Interpreter Releases, Immigration Daily, and the ethnic newspapers, World Journal, Sing Tao, Pakistan Calling, Muhasha and OCS. He has testified as an expert on immigration in civil court proceedings and was recognized by the Taiwan government in 1985 for his work protecting human rights. His article, "The Bush Temporary Worker Proposal and Comparative Pending Legislation: an Analysis" was Interpreter Releases' cover display article at the American Immigration Lawyers Association annual conference in 2004, and his victory in the Second Circuit Court of Appeals in a case of first impression nationwide, Firstland International v. INS, successfully challenged INS' policy of over 40 years of revoking approved immigrant visa petitions under a nebulous standard of proof. Its value as precedent, however, was short-lived as it was specifically targeted by the Bush Administration in the Intelligence Reform Act of 2004.

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