May 2012 ★ This Month in Immigration News

Beginning on Monday, April 2, 2012, employers may file cap-subject H-1B petitions for fiscal year (FY) 2013, for employment starting on October 1, 2012, or later.

On November 22, 2011, U.S. Citizenship and Immigration Services (USCIS) received a sufficient number of petitions to reach the statutory cap for FY 2012. 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. With the improving economy, H-1B numbers could run out faster this year.  IVENER & FULLMER recommends that employers file early and allow time for the labor condition application process. Contact your ABIL attorney now for guidance and help with the process. See also the USCIS reminder.

The Department of State has issued an interim final rule amending the schedule of fees for consular services for nonimmigrant visa applications, border crossing card applications, and immigrant visa applications.

The rule increases from $140 to $160 the fee for processing most non-petition-based nonimmigrant visas (machine-readable visas, or MRVs) and border crossing cards (BCCs) for Mexican citizens 15 years of age and above. The rule also amends application processing fees for certain categories of petition-based nonimmigrant visas and treaty trader and investor visas (all of which are also MRVs), and amends tiered application processing fees for immigrant visas. Finally, the rule increases from $14 to $15 the BCC fee charged to Mexican citizen minors who apply in Mexico, and whose parent or guardian already has a BCC or is applying for one, based on a congressionally mandated surcharge.

The interim final rule is effective April 13, 2012. Written comments must be received on or before May 29, 2012. The rule, which includes instructions on submitting comments, is available as PDF.

The U.S. Embassy in New Delhi, India, announced that the Visa Interview Waiver Pilot Program has been expanded to that post, effective immediately. Under the program, certain qualified foreign visitors who were interviewed and screened in conjunction with a previous visa application may be eligible to renew their visas without undergoing another interview.

The embassy explained that the pilot program permits consular officers to waive interviews for qualified nonimmigrant applicants worldwide who are renewing their B-1/B-2 visas within 48 months of the expiration of their previously held visa, and within the same classification as the previous visa. The pilot does not entitle any applicant to a waiver of personal appearance. Consular officers retain the authority to interview any applicant whom they determine requires a personal appearance.

The State Department’s Visa Bulletin for April did not continue the dramatic forward movement of India and China EB-2 priority dates that has been observed for the past several months. The Alliance of Business Immigration Lawyers has also learned that the Visa Office is predicting a retrogression of priority dates in the India and China EB-2 category to a 2007 priority date, effective in the May or June Visa Bulletin.

For the month of April, the India and China EB-2 category remains steady at May 1, 2010. For May, the Visa Office recently announced that the priority date will retrogress, or be set earlier, possibly as early as August 2007. Priority dates are not expected to advance again until October 1, 2012, at the earliest, when the new fiscal year begins.

If an I-485 Application for Adjustment of Status is filed while the person’s priority date is current, it will remain pending until the priority date is current again. Because the I-485 will remain pending, the applicant can continue to apply for interim benefits, such as work authorization and advance parole, while the priority date is retrogressed.

IVENER & FULLMER recommends that anyone with a priority date before March 2010 who is eligible to apply for adjustment of status do so immediately, because the opportunity to file such applications will likely end by May 1, 2012, and will not return until at least October 1, 2012 (and possibly much later).

U.S. Citizenship and Immigration Services (USCIS) invites public comment until May 29, 2012, on a revised employment eligibility verification form (I-9). Employers must complete the I-9 for all newly hired employees to verify their identity and authorization to work in the United States. The comment period ends on May 29, 2012.

Key revisions to the form include:

• Expanded instructions and a revised layout.
• New, optional data fields to collect the employee’s e-mail address and telephone number.
• New data fields to collect the foreign passport number and country of issuance. Only those authorized to work in the U.S. who have also recorded their I-94 admission number on the I-9 will need to provide the foreign passport number and country of issuance.

See Also:

• Until a new version is approved and posted, employers must continue to use the current version of the I-9 form, available here.
• The USCIS notice, which includes a link to the revised draft form, is available here.
• The Federal Register notice is available here (PDF).