The AILA U.S. Customs and Border Protection ("CBP") Liaison Committee received reports from AILA members that CBP inspectors at the Newark, New Jersey airport port of entry were apparently assisting in an investigation involving certain H-1B nonimmigrants from India and certain H-1B petitioner companies. The inspectors' questions focused on who the individuals worked for, how their pay was computed, who paid their salary, their job duties, and what they were paid. In some cases, the individuals were subjected to expedited removal and visa cancellation.

After inquiring with CBP headquarters ("HQ") about these incidents, the CBP Liaison Committee was advised by HQ that several of these cases involved companies under investigation by U.S. Immigration and Customs Enforcement ("ICE") and/or U.S. Citizenship and Immigration Services ("USCIS") for ongoing fraud. CBP HQ noted that they use as much advance information as possible to target specific individuals who warrant additional inspection. HQ also noted that recent enforcement cases reviewed ranged from simple documentary deficiency to visa/petition fraud. Upon an inadmissibility finding, the determination to either allow the applicant to withdraw his or her application for admission or to subject the applicant to expedited removal is based on "the totality of the circumstances and reviewed on a case by case basis." In the Newark enforcement actions, CBP Newark worked closely with USCIS - Fraud Detection and National Security ("FDNS") and the Department of Labor - Office of Investigations. CBP HQ stated that those questioned were offered the opportunity to contact their consulate and that CBP officers contacted the petitioner and/or current employer when clarification was needed. CBP HQ confirmed that they screen ALL employment-based visa holders to determine admissibility and ensure compliance with entry requirements.

In addition, on January 27, AILA members attending a CBP meeting in the Newark, New Jersey area were informed that a new policy has been instituted at Newark Airport. This policy involves conducting random checks for returning H-1B, L-1, and other employment-based visa holders. Based upon the initial check, if the person's admissibility is questionable, then he or she will be sent to secondary inspection for further interview. In some cases, if CBP discovers discrepancies in previously filed petitions, then the applicant may be asked to withdraw his/her application for admission into the United States or be subject to expedited removal.

During that same local CBP meeting, attendees were advised that if CBP discovers that a returning Lawful Permanent Resident has a post-1998 conviction, the Lawful Permanent Resident may be detained. The Newark airport port of entry has adopted a mandatory detention policy for crimes that were committed after 1998. In the event that CBP cannot get a copy of the conviction record in twenty-four hours, the person may be released. The only exceptions are that CBP will release a Lawful Permanent Resident for humanitarian reasons; extenuating circumstances such as if the foreign national is traveling with children and there is no one to pick up the children; or when the person is a sole provider for United States Citizen or Lawful Permanent Resident children. Please refer to the CBP Committee advisory as to the detention of returning Lawful Permanent Residents.

Individuals with pending I-751 petitions (Removal of conditions) returning to the United States via the Newark airport port of entry, who have a I-751 filing receipt documenting that an I-751 has been properly filed or an ADIT Legal Permanent Resident stamp, will be sent to secondary inspection for further interview to verify the validity of the I-751 Petition. It is unclear if CBP will undertake a substantive review of the I-751 Petition.

In all cases, attorneys should remind their clients to thoroughly prepare for their trip to the United States and their inspection upon application for admission by reviewing all pertinent documents to their petition and to consider carrying evidence to support the assertions made in the petition filed on their behalf by their employer. Similarly, employers must be prepared for telephone inquiries from CBP officers at ports of entry to confirm the assertions made in any nonimmigrant petition and supporting documentation. Finally, employers must be advised that the government may review information in any public venues such as websites and other media for consistency with petition content. Thus, keeping such public information accurate and current is essential.

Note the new fraud related language added to I-797 approval notices -

NOTICE: Although this application/petition has been approved, DHS reserves the right to verify the information submitted in this application, petition, and/or supporting documentation to ensure conformity with applicable laws, rules, regulations, and other authorities. Methods used for verifying information may include, but are not limited to, the review of public information and records, contact by correspondence, the Internet, or telephone, and site inspections of businesses and residences. Information obtained during the course of verification will be used to determine whether revocation, rescission, and/or removal proceedings are appropriate. Applicants, petitioners, and representatives of record will be provided an opportunity to address derogatory information before any formal proceeding is initiated.

Starting from January 1, 2010, the National Prevailing Wage and Helpdesk Center NPWHC) will process Prevailing Wage Determination (PWD) requests for H1B,H1B1(Chile/Singapore), H1C(if reauthorized by Congress), H2B, E3 (Australia) programs, and the permanent labor certification program (PERM). The procedures for obtaining the required wage rates in the H2A Program described in the transition provision of the H2A 2008 Final Rule at 20 CFR 655.100(b)(2)(i) remain unchanged.

The NPWHC is working to provide Prevailing Wage Determinations as quickly as possible, in the first-in, first-out (FIFO) order. However, determination times may fluctuate somewhat as the Department works to centralize processing of PWD requests at the NPWHC. Therefore, US DOL encourage requestors to submit their ETA Forms 9141 at least 60 days in advance of the employers' initial recruitment efforts.  Apparently all PERM applications and H-1B applications that need official prevailing wage determination will experience substantial delay due to this new change.  We encourage all potential xielaw clients to start the applications as early as possible in response to the delay by the new prevailing wage request/determiantion procedure.

An employer must use ETA Form 9141 to request a PWD from the NPWHC. This form is available in the Forms and Instructions section of the OFLC website: http://www.foreignlaborcert.doleta.gov/form.cfm

To request a PWD, an employer must mail a completed ETA Form 9141 to the NPWHC at the following address:

U.S. Department of Labor
Employment and Training Administration
National Prevailing Wage and Helpdesk Center
Attn: PWD Request
1341 G Street, NW
Suite 201
Washington, DC 200053142

Initially, the NPWHC will only accept mailed in ETA Forms 9141. The Department is, however, in the process of creating a prevailing wage module on its iCert portal. We will make an announcement in the Federal Register and on the OFLC website when iCert becomes available for the electronic submission of PWD requests.

The Department's strong preference is for the electronic transmittal of PWDs. Therefore, we encourage all requestors to include their email addresses on the ETA Form 9141, under item B15. Once a determination is made, the NPWHC will email the requestor an electronic copy of the PWD. In order to receive emails from the NPWHC, requestors should ensure that the domain @dol.gov is not blocked by their email provider. If the requestor does not provide an email address on its ETA Form 9141, item B15, the NPWHC will send the PWD to the requestor's mailing address by regular mail.

Once an employer receives a PWD, the employer may begin recruitment or file an application for foreign labor certification, depending on the program. The employer must follow program specific rules and regulations for filing foreign labor certification applications. In addition, employers may refer to OFLC's website: www.foreignlaborcert.doleta.gov for more information on labor certification programs.

SWAs have been instructed to complete all PWD requests received on or prior to December 31, 2009. Any PWD request received at a SWA between January 1, 2010 and up to and including January 15, 2010 will be forward by the SWA to the NPWHC. Any PWD request received at a SWA after January 15, 2010 will be returned to the requestor with instructions on how to file the PWD request with the NPWHC.

If you have a problem or issue with a PWD request submitted to the NPWHC prior to receiving a determination, please email the NPWHC at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

If you are looking for an immigration attorney to handle the prevailing wage requests for the PERM application or H-1B application, please contact xielaw or send email directly to our attorney Jeff Z. Xie for consultation.

As of November 20, 2009, approximately 56,900 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

If you are interested in filing the H-1B petition, you should start it without any further delay due to the delay described at http://www.xielaw.com/immigration-articles/h1b-immigration-articles/urgent-issues-about-h1b-extensionrenewal.html.  Please feel free to contact us if you are interested in our services.

The CBP has advised AILA Liaison on the admission of EB-5 visa holders after September 30, 2009, with the following question and answer:

Question: Based on the October Visa Bulletin, the Department of State will be issuing EB-5 visas for the full validity period up to close of business on September 30, 2009. Could you confirm that CBP will be admitting these EB-5 visa holders on or after September 30, 2009?

Answer: If the visa is valid and the applicant is otherwise admissible, there should not be an issue with CBP admitting as an EB-5.

Cite as "AILA InfoNet Doc. No. 09092363 (posted Sep. 23, 2009)"

The Vermont Service Center will issue a duplicate approval notice if the request is made within 30 days of the petition's approval. If the case was filed under premium processing, please call the VSC Premium Processing Unit. If the case was filed under regular processing, first call the National Customer Service (NCSC) at 1-800-375-5283. Thereafter, send a written request to the VSC at This e-mail address is being protected from spambots. You need JavaScript enabled to view it

The request must be made within 30 days; therefore, do not wait too long to submit the request. If it has been more than 30 days since the petition was approved, VSC will require that you file Form I-824 for a duplicate copy.

Cite as "AILA InfoNet Doc. No. 09092362 (posted Sep. 23, 2009)"

Deferred Action Authorized for Certain Spouses and Children

WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) today issued guidance on requesting deferred action for surviving spouses of U.S. citizens who died before the second anniversary of their marriage. Surviving spouses qualify for this temporary program if they were married to, but not legally separated from, their U.S. citizen spouse at the time of that spouse's death; did not remarry; and are currently residing in the United States.

Surviving spouses qualify for deferred action regardless of whether the U.S. citizen spouse filed a Form I-130 petition for them. Surviving spouses may ask to have their qualifying children included in their deferred action request. To be considered a "qualifying child" of a surviving spouse, the child must be younger than age 21 or otherwise qualify as a child when the deferred action request is submitted; currently reside in the United States; and be unmarried.

USCIS has revised the instructions to the Forms I-360, Petition for Amerasian, Widow(er), or Special Immigrant, I-765, Application for Employment Authorization, and I-131, Application for Travel Document, as they relate to this temporary new program.

Surviving spouses who apply for deferred action will need to file Form I-360 with supporting documentation and the $375 filing fee with the Vermont Service Center.

Work authorization will be available to surviving spouses and qualifying children who are granted deferred action and who can establish economic necessity. Form I-765 is used for this purpose (separate applications are required for each person seeking work authorization).

Travel authorization will also be available to surviving spouses and qualified children granted deferred action under this program.

For additional information about this and other immigration services, please call the National Customer Service Center at (800) 375-5283, or email our office at This e-mail address is being protected from spambots. You need JavaScript enabled to view it

According to a news release from US Immigration and Customs Enforcement (ICE) copied below, "U.S. Immigration and Customs Enforcement (ICE) is launching a bold, new audit initiative today by issuing Notices of Inspection (NOIs) to 652 businesses nationwide - which is more than ICE issued throughout all of last fiscal year. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations." If your company receives Notice of Inspection or if you want to make sure that your company's practices are in compliance with the I-9 regulations, contact an experienced immigration lawyer.

I-9 form has only five pages, but the manual to explain how to properly complete it has 65 pages! Therefore the I-9 form seems deceptively easy. Employers are advised to be careful when completing the I-9 form or seek professional assistance to avoid pitfalls or costly mistakes.

652 businesses nationwide being served with audit notices today

WASHINGTON - U.S. Immigration and Customs Enforcement (ICE) is launching a bold, new audit initiative today by issuing Notices of Inspection (NOIs) to 652 businesses nationwide - which is more than ICE issued throughout all of last fiscal year. The notices alert business owners that ICE will be inspecting their hiring records to determine whether or not they are complying with employment eligibility verification laws and regulations. Inspections are one of the most powerful tools the federal government has to enforce employment and immigration laws. This new initiative illustrates ICE's increased focus on holding employers accountable for their hiring practices and efforts to ensure a legal workforce.

"ICE is committed to establishing a meaningful I-9 inspection program to promote compliance with the law. This nationwide effort is a first step in ICE's long-term strategy to address and deter illegal employment," said Department of Homeland Security Assistant Secretary for ICE John Morton.

Employers are required to complete and retain a Form I-9 for each individual they hire for employment in the United States. This form requires employers to review and record the individual's identity document(s) and determine whether the document(s) reasonably appear to be genuine and related to the individual.

The 652 businesses being presented with a NOI today for a Form I-9 audit have been selected for inspection as a result of leads and information obtained through other investigative means. Due to the ongoing, law enforcement sensitive nature of these audits, the names and locations of the businesses will not be released at this time.

In FY 2008, ICE issued 503 similar notices throughout the year. In April, ICE implemented a new, comprehensive strategy to reduce the demand for illegal employment and protect employment opportunities for the nation's lawful workforce. Under this strategy, ICE is focusing its resources on the auditing and investigation of employers suspected of cultivating illegal workplaces by knowingly employing illegal workers. The nationwide initiative being launched today is a direct result of this new strategy.

- ICE -

Source: http://www.ice.gov/pi/nr/0907/090701washington.htm

WASHINGTON-USCIS announced today that effective June 29, 2009, it will resume Premium Processing Service for Form I-140, Immigrant Petition for Alien Worker, in accordance with 8 CFR 103.2(f)(2).

After an evaluation of its I-140 backlog reduction efforts and increased I-140 adjudicative efficiencies, USCIS has concluded that it is now able to provide Premium Process Service for this benefit. USCIS will accept Premium Processing requests for Form I-140 Immigrant Petition for Alien Worker, involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.

Premium Processing Service is still not available for Form I-140, Immigrant Petition for Alien Worker, involving EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

Under the Premium Processing Service, USCIS guarantees petitioners that, for a $1,000 processing fee, it will issue either an approval notice, or where appropriate, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation, within 15 calendar days of receipt. If the petition is not processed within 15 calendar days, USCIS will refund the $1,000 fee and continue to process the request as part of the Premium Processing Service. In addition to faster processing, petitioners who participate in the program may use a dedicated phone number and e-mail address to check on the status of their petition or ask any other questions they may have concerning their petition.

Premium Processing Service continues to be available for previously designated classifications within Form I-140 and Form I-129, Petition for Nonimmigrant Worker. Information about the expanded Premium Processing Service, including what classifications are eligible to request such processing, is available on the USCIS website at www.uscis.gov. If you are existing Xielaw clients whose I-140 petition is still pending or if you are interested in filing your I-140 case through this office, please contact us.

Job Title: Legal Clerk (Refer to Job # G1)

Job Location: Norcross, GA

Job Duties: Conduct legal research, review & prepare legal documents for attorneys, interview immigration & corporate client, provide initial/basic consultation. Full Time.

Requirement: - LLM or closely related field,
- Familiarity with Chinese culture,
- Strong research ability and excellent legal writing skills.

To apply, mail your updated resume and cover letter to Xie Law Offices, LLC, 1770 Indian Trail Lilburn Rd, #450, Norcross, GA 30093, Attn: Job # G1. A copy of your writing sample is required. Phone call or email inquiry about this position is not accepted.

Xie Law Offices LLC. is currently accepting application for the following opening:

Job Title: Market Research Analyst (Refer to Job # G2)

Job Location: Norcross, GA

Job Duties: Analyze data on national clientele to develop effective marketing campaigns targeted on potential immigration clients in Hispanic communities. Full Time.

Requirement: - Bachelor in Business Administration, Marketing, or related,
- Hispanic cultural background preferred,
- 2-yr experience in developing campaign projects.

To apply,  mail your updated resume and cover letter to Xie Law Offices, LLC, 1770 Indian Trail Lilburn Rd, #450, Norcross, GA 30093, Attn: Job # G2.  A copy of your writing sample is required.  Phone call or email inquiry about this position is not accepted.

Family 2A - Worldwide, India, China and the Philippines numbers advance nine weeks to 15 DEC 2004. Mexico jumps six weeks to 15 MAY 2002.

Family 2B - Worldwide, India and China numbers advance ten weeks to 01 FEB 2001. Mexico is still stuck at 1 MAY 1992. The Philippines advances two months to 01 APR 1998.

Family 3rd - Worldwide, India and China advanced one month to 08 OCT 2000. Mexico is stalled at 22 OCT 1992. And there was a one week advance for the Philippines to 01 JUL 1991.

Family 4th - Worldwide numbers and India advance nine weeks to 15 AUG 1998. China moves nearly five months to join the worldwide number 15 15 AUG 1998. Mexico moves two weeks forward to 15 MAY 1995. The Philippines moved three weeks to 01 AUG 1986.

Employment 1st - All categories remain current.

Employment 2nd - Worldwide, Mexico and the Philippines remain current. India, as noted above, retrogresses to 01 JAN 2000. China remains stalled at 15 FEB 2005.

Employment 3rd skilled/professional workers -This category remains unavailable and it is not clear yet when it will again be available.

Employment 4th - All categories remain current.

Employment 5th - All categories remain current.

May 4, 2009 H-1B Cap Count

On May 5, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website. As of May 4, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS continues to accept advanced degree petitions stating that experience has shown that not all petitions received are approvable.

April 27, 2009 H-1B Cap Count

On April 27, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website. As of April 27, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS continues to accept advanced degree petitions stating that experience has shown that not all petitions received are approvable.

April 20, 2009 H-1B Cap Count

On April 20, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website. As of April 20, 2009, approximately 44,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS continues to accept advanced degree petitions stating that experience has shown that not all petitions received are approvable.

April 17, 2009 H-1B Cap Count

On April 17, 2009 USCIS updated the count of H-1B petitions received and counted towards the H-1B cap on the USCIS website. As of April 13, 2009, approximately 43,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed.

USCIS Update
April 8, 2009

WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) today announced it continues to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. master's degree or higher educational exemption cap.

Should USCIS receive the necessary number of petitions to meet the respective caps, it will issue an update to advise the public that, as of a certain date (the "final receipt date"), the respective FY 2010 H-1B caps have been met. The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition is postmarked. The date or dates USCIS informs the public that the respective caps have been reached may differ from the actual final receipt date.

To ensure a fair system, USCIS may randomly select the number of petitions required to reach the numerical limit from the petitions received as of the final receipt date. USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.

Petitions filed on behalf of current H-1B workers, who have been counted previously against the cap, will not count toward the congressionally mandated FY 2010 H-1B cap. Therefore, USCIS will continue to process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States.
• Change the terms of employment for current H-1B workers.
• Allow current H-1B workers to change employers.
• Allow current H-1B workers to work concurrently in a second H-1B position.
H-1B in General U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers, or computer programmers.

- USCIS -

WASHINGTON-U.S. Citizenship and Immigration Services (USCIS) today announced that it will begin accepting H-1B petitions subject to the fiscal year 2010 (FY 2010) cap on April 1, 2009. Cases will be considered accepted on the date that USCIS takes possession of the petition; not the date that the petition is postmarked.

The numerical limitation on H-1B petitions for fiscal year 2010 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. masters' degree or higher are exempt from the fiscal year cap.

USCIS will monitor the number of petitions received and will notify the public of the date USCIS has received the necessary number of petitions to meet the H-1B cap, known as the "final receipt date." The date USCIS publishes information that the cap has been reached does not control the final receipt date. To ensure a fair system, USCIS will, if needed, randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.

H-1B petitions cannot be filed more than six months in advance of the requested start date. Petitions seeking an H-1B worker for an Oct. 1, 2009 start date can be filed no earlier than April 1, 2009.

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, employers may continue to file petitions for these exempt H-1B categories seeking work dates starting in FY 2009 or 2010.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

Extend the amount of time a current H-1B worker may remain in the United States.
Change the terms of employment for current H-1B workers.
Allow current H-1B workers to change employers.
Allow current H-1B workers to work concurrently in a second H-1B position.
H-1B petitioners should follow all regulatory requirements (8 CFR §214.2) as they prepare petitions to avoid delays in processing and possible requests for evidence. USCIS has developed detailed information, including a processing worksheet, to assist in the completion and submission of a FY2010 H-1B petition. Those documents are available from the Related Links section of this page.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

From USCIS

WASHINGTON-U.S. Citizenship and Immigration Services (USCIS) today announced that it will begin accepting H-1B petitions subject to the fiscal year 2010 (FY 2010) cap on April 1, 2009. Cases will be considered accepted on the date that USCIS takes possession of the petition; not the date that the petition is postmarked.

The numerical limitation on H-1B petitions for fiscal year 2010 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. masters' degree or higher are exempt from the fiscal year cap.

USCIS will monitor the number of petitions received and will notify the public of the date USCIS has received the necessary number of petitions to meet the H-1B cap, known as the "final receipt date." The date USCIS publishes information that the cap has been reached does not control the final receipt date. To ensure a fair system, USCIS will, if needed, randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.

H-1B petitions cannot be filed more than six months in advance of the requested start date. Petitions seeking an H-1B worker for an Oct. 1, 2009 start date can be filed no earlier than April 1, 2009.

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations. Thus, employers may continue to file petitions for these exempt H-1B categories seeking work dates starting in FY 2009 or 2010.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

Extend the amount of time a current H-1B worker may remain in the United States.
Change the terms of employment for current H-1B workers.
Allow current H-1B workers to change employers.
Allow current H-1B workers to work concurrently in a second H-1B position.
H-1B petitioners should follow all regulatory requirements (8 CFR §214.2) as they prepare petitions to avoid delays in processing and possible requests for evidence. USCIS has developed detailed information, including a processing worksheet, to assist in the completion and submission of a FY2010 H-1B petition. Those documents are available from the Related Links section of this page.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

From USCIS

WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) today announced additional requirements for employers, who receive funds through the Troubled Asset Relief Program or under section 13 of the Federal Reserve Act (covered funding), before they may hire a foreign national to work in the H-1B specialty occupation category.

The new "Employ American Workers Act," (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on Feb. 17, 2009, was enacted to ensure that companies receiving covered funding do not displace U.S. workers. Under this legislation any company that has received covered funding and seeks to hire new H-1B workers is considered an "H-1B dependent employer." All H-1B dependent employers must make additional attestations to the U.S. Department of Labor (DOL) when filing the Labor Condition Application.

EAWA applies to any Labor Condition Application (LCA) and/or H-1B petition filed on or after Feb. 17, 2009, involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status. The EAWA also applies to new hires based on a petition approved before Feb. 17, 2009, if the H-1B employee had not actually commenced employment before that date.

EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.

USCIS is revising Form I-129, Petition for Nonimmigrant Worker, to include a question asking whether the petitioner has received covered funding. USCIS will post this revised form on the USCIS Web site in time for the next cap subject H-1B filing period that begins on April l, 2009. While USCIS encourages petitioners, whenever possible, to use the most up-to-date form, USCIS will not require use of the revised form in time for the start of the filing period for fiscal year 2010.

However, USCIS urges H-1B petitions who have already prepared packages for mailing using the previous Form I-129 (January 2009 version) to complete only the page in the revised version of the Form I-129 (March 2009) which has the new question on EAWA attestation requirements and to file this single page with the prepared package. The single page referenced is the first page on the H-1B Data Collection and Filing Fee Exemption Supplement.

USCIS reminds petitioners that a valid LCA must be on file with DOL at the time the H-1B petition is filed with USCIS. This means that if the petitioner indicates on its petition that it is subject to the EAWA, but the Labor Condition Application does not contain the proper attestations relating to H-1B dependent employers, USCIS will deny the H-1B petition.

For more information, please see the accompanying Questions and Answers document about the Employ American Workers Act and its effect on H-1B petitions.

From USCIS.Gov

USCIS has provided American Immigration Lawyers Association (AILA) liaison with a list of all employers whose H-1B petitions for initial beneficiaries were approved for FY 2008, including the number of petitions approved for each employer. For a complete list of 2008 H-1B sponsoring employers, please click here.

The DOL Office of Foreign Labor Certification posted the following notice on its website:

For LCA System:

WARNING: Effective upon the enactment of HR 1, the American Recovery and Reinvestment Act of 2009, pursuant to section 1611(b), Div. A, it shall be unlawful for any recipient of funding under title I of the Emergency Economic Stabilization Act of 2008 (Public Law 110-343) or section 13 of the Federal Reserve Act (12 U.S.C. 342 et seq.) to hire any nonimmigrant described in section 101(a)(15)(h)(i)(b) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(h)(i)(b)) for new employment unless the recipient is in compliance with the requirements for an H-1B dependent employer (as defined in section 212(n)(3) (8 U.S.C. 1182(n)(3))), except that the second sentence of section 212(n)(1)(E)(ii) of such Act shall not apply. Employers who are recipients of such funding may not file Labor Condition Applications (LCAs) for new employment unless they complete the actions and make the attestations required of dependent employers. *Until further notice, for those companies that are not dependent H-1B employers but are subject to this provision, please check Box "B" in Section F-1.1 of the ETA-9035 in order to demonstrate compliance as required. It is recommended that such employers retain documentation regarding their status.*

Information regarding the additional attestations required of H-1B-dependent employers-non-displacement and recruitment of U.S. workers--can be found at 20 CFR sections 655.738 and 655.739. For information regarding those employers who are recipients of such funding, go to http://www.treas.gov/initiatives/eesa/transactions.shtml

Beginning March 2, 2009, USCIS will accept Form I-907 for alien worker petitions filed on behalf of alien beneficiaries who, as of the date of filing the Form I-907:

• Are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
• Have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
• Are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
• Are ineligible to extend their H-1B status under section 106(a) of AC21.

Section 104(c) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to three years, provided they are the beneficiary of an approved Form I-140 and an immigrant visa is not immediately available. Section 106(a) of AC21 permits applicants to extend their stay in H-1B nonimmigrant status in increments of up to one year, provided the Form I-140 petition or underlying labor certification has been pending for at least 365 days.

Premium Processing offers 15 calendar day-processing for designated employment-based petitions and applications upon request. There is a nonrefundable fee of $1,000 for this service. During the 15-day period, USCIS will issue an approval or denial notice, a notice of intent to deny, a request for evidence, or open an investigation for fraud or misrepresentation.

Later, American Immigration Lawyers Association USCIS Service Center Operations has provided the following clarification to AILA liaison on the changes to I-140 premium processing for H-1B nonimmigrants effective March 2, 2009.

The Form I-140 Premium Processing Service (PPS) expansion commencing on March 2, 2009, will allow Form I-140 petitioners to request PPS for petitions filed for alien beneficiaries who are abroad, or who are currently in a nonimmigrant status other than H-1B, provided that the alien beneficiary, as of the date of filing the Form I-907:

a. Is the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;

b. Has reached the sixth-year statutory limitation of H-1B stay, or will reach the end of the sixth year of H-1B stay within 60 days of filing;

c. Is only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and

d. Is ineligible to extend H-1B status under section 106(a) of AC21.

For more details on premium processing for I-140 petitions, please contact your own attorney or contact Xielaw. 

WASHINGTON-U.S. Citizenship and Immigration Services (USCIS) reminds customers that the applicable provisions of immigration law concerning the EB-5 Immigrant Investor Pilot Program (Pilot Program) will "sunset" or expire at midnight on March 6, 2009.

The sunset date affects all Regional Center Proposals and certain Forms I-526, Immigrant Petition for Alien Entrepreneurs and Forms I-485, Applications to Register Permanent Residence or Adjust Status, affiliated with Regional Centers relying on "indirect" job creation analyses. USCIS will continue to receive, process, and adjudicate as many Regional Center affiliated Forms I-526 and Forms I-485 as possible until the close of business on March 6, 2009, the scheduled sunset date.