Alert. Recent Developments in Immigration Law. Business Immigration. January 2011

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1 Business Immigration Alert January 2011 Recent Developments in Immigration Law H-1B Numbers Are Running Out As you know, there are approximately 65,000 H-1B numbers available each fiscal year, plus an additional 20,000 for those who received advanced degrees from U.S. institutions of higher education. At year end, there were not many numbers left. The U.S. Citizenship and Immigration Services (USCIS) advised that as of December 31, 2010, approximately 57,300 H-1B cap-subject petitions, and 20,000 H-1B petitions for aliens with advanced degrees, were receipted. Even though all 20,000 advanced degree H-1B numbers have been used, employers can still file petitions for advanced degree professionals by submitting them under the normal 65,000 cap. The bottom line: If you are considering filing an H-1B petition for a foreign national, you must act now. All of the numbers will soon be exhausted. USCIS Proposes a Possible Rule to Change H-1B Filing Procedures For several years, the USCIS has been talking about changing the filing rules for H-1B petitions. Under the law, the agency can approve approximately 65,000 H-1B petitions each fiscal year, and 20,000 additional petitions for those who were awarded advanced degrees by U.S. universities. But each year, USCIS receives more petitions than it can approve. In fact, a few years back, the government received more than 65,000 petitions on the very first day permitted for filing (April 1), but it still had to sort through all the petitions, set up an H 1B lottery for some of the petitions, prepare rejection notices for petitions not selected, and return rejected papers to petitioning employers. To prevent this from happening again, USCIS issued a proposal (but not a proposed regulation) at the end of December 2010 to establish a mandatory Internet-based electronic registration process for U.S. employers seeking to file H-1B petitions. This registration process would allow employers to electronically register for consideration of available H-1B cap numbers, would alleviate administrative burdens on USCIS service centers, and eliminate the need for U.S. employers to prepare and file H-1B petitions without any certainty that an H-1B cap number would ultimately be allocated to the beneficiary named on that petition. The advantage of the rule is that the employer will be able to electronically register for consideration of available H-1B cap numbers without having to first prepare and submit the petition. Although we do not know how the registration system will work, the agency claims that the new system will allow employers to complete a much shorter and less expensive registration process. But the new process Attorney Advertising 2011 Kramer Levin Naftalis & Frankel LLP

2 2 is not cost-free: If the employer is accepted for registration and files a petition, there will be a fee for filing the registration. If the proposed rule is published, the final rule may become effective by April We ll keep you informed of any news in this area. Retrogression of Family Cut-Off Dates Several months ago, the U.S. Department of State advised that from early 2009 through September 2010, the level of demand for immigrant visa numbers ( green cards ) in the family-sponsored preference categories was very low. As a result, the cut-off dates for most family preference categories were advanced at a very rapid pace, in an attempt to generate demand so that the annual numerical limits could be fully used. But these cut-off date advances could not continue indefinitely, and at some point they would slow, stop, or in some cases retrogress. (Retrogression means that instead of the wait times advancing, they go backward!) Sure enough, the Visa Bulletin for January 2011 shows that there has been a retrogression of many family preference cut-off dates in an effort to hold number use within the various numerical limits. Further retrogressions cannot be ruled out should demand continue at the current levels. For example, while in December 2010 the cut-off date for the spouses and minor children of permanent residents for most of the world had been August 1, 2010, in January 2011, the cut-off date retrogressed to January 1, What this means is that there is now a longer wait for immigrant visas (green cards) in the family based second preference category. U.S. Department of Labor Defines Business Day for Purposes of the Posting Notice (also known as the Notice of Filing) Those of you who have filed PERM applications know that one of the required steps is posting a notice internally advising the public that there is a job opening at the worksite. Under the rules, the notice must be posted for ten consecutive business days. Questions arose about the meaning of business day, because some employers, hospitals for example, are open seven days a week. Did it pass muster if their notices were posted for ten consecutive business days including weekends? The Department of Labor s Office of Foreign Labor Certification had consistently interpreted business day to mean Monday through Friday, except for Federal holidays. However, it has now made clear that where an employer is open for business on a Saturday, Sunday, and/or holiday, the employer may include the Saturday, Sunday and/or holiday in its count of the ten consecutive business day period required for the posting of the Notice of Filing so long as the employer demonstrates that it was open for business on those days. Similarly, where an employer is not open for business any day, Monday through Friday, the employer should not include any such days in its count of the ten consecutive business day period required for the posting of the Notice of Filing.

3 3 Confusion about the Export Control Question on the Revised Form I-129 On November 23, 2010 USCIS released a new version of Form I-129, Petition for a Nonimmigrant Worker. It includes a new attestation requirement for employers regarding export control licensing. Employers wishing to sponsor nonimmigrant workers in H-1B, H-1B1 (Chile/Singapore), L-1 and O-1A status will be required to certify that they have reviewed the designated regulations and determined whether they will require a license to release controlled technology or technical data to the beneficiary of the petition. The attestation is at Part 6 of the new form. We print it in its entirety: Part 6. Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States (For H-1B, H-1B1 Chile/Singapore, L-1, and O-1A petitions only. This section of the form is not required for all other classifications. See Page 3 of the Instructions before completing this section.) Check Box 1 or Box 2 as appropriate: With respect to the technology or technical data the petitioner will release or otherwise provide access to the beneficiary, the petitioner certifies that it has reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR) and has determined that: 1. A license is not required from either U.S. Department of Commerce or the U.S. Department of State to release such technology or technical data to the foreign person; or 2. A license is required from the U.S. Department of Commerce and/or the U.S. Department of State to release such technology or technical data to the beneficiary and the petitioner will prevent access to the controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary. The license requirement itself is not new, and under the Export Administrative Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), employers have had to seek government authorization before exporting controlled technology or technical data to foreign nationals. (When that foreign national is in the United States, the release of the controlled technology or technical data is simply deemed an export.) But what is new is the sudden appearance of the question on the form, asking employers to certify that they are in compliance with the EAR and ITAR.

4 4 Everyone was caught quite unawares that the attestation would be included in the new form, and in late December, USCIS announced that petitioners will not be required to complete Part 6 of the Form I-129 until February 20, USCIS received a number of inquiries from stakeholders, including the American Immigration Lawyers Association, requesting a delay in order to give petitioners time to establish the necessary internal processes to properly satisfy the attestation requirements. Ultimately, employers will have to determine whether what they create, develop, sell, or use is controlled under the EAR and ITAR regulations, and, if so, whether the foreign national they hired to work with this controlled technology is a national of a country which requires a license to gain access. These are often very complicated questions, and we work closely with experienced export control counsel who is very knowledgeable about the requirements. If you would like to consult with him, please let us know and we will make the introduction for you. *** To discuss any particular cases, please contact us: Ted Ruthizer (212) truthizer@kramerlevin.com Mark D. Koestler (212) mkoestler@kramerlevin.com Matthew S. Dunn (212) mdunn@kramerlevin.com Naomi Schorr (212) nschorr@kramerlevin.com Jennifer R. Danzo (212) jdanzo@kramerlevin.com Allison D. Gray (212) agray@kramerlevin.com William Johnson (212) wjohnson@kramerlevin.com Jeffrey A. Barlekamp (212) jbarlekamp@kramerlevin.com Fabienne Arrighi (33) farrighi@kramerlevin.com (Counsel in the Paris office)

5 5 About Kramer Levin s Business Immigration Group: Chambers USA and Chambers Global have consistently ranked Kramer Levin s Business Immigration Group within the top tier (Band One) of immigration practices. We are one of only two firms in New York to be so listed, and one of only six firms throughout the entire country to have this ranking. Our lawyers have been recognized for their excellence by Best Lawyers in America, Legal 500, Lawdragon, The International Who s Who of Business Lawyers (Corporate Immigration), Human Resource Executive and New York Super Lawyers. We act as immigration counsel to many leading multinational companies in all sectors of the economy. Please visit the Kramer Levin Business Immigration Group blog and sign up for RSS feeds at We are consistently posting topics of interest within the business immigration and human resources community. This memorandum provides general information on legal issues and developments of interest to our clients and friends. It is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters we discuss here. Should you have any questions or wish to discuss any of the issues raised in this memorandum, please contact one of the members of our Business Immigration Group. Kramer Levin Naftalis & Frankel LLP 1177 Avenue of the Americas New York, NY Phone: Fax: , avenue Hoche Paris Phone: (33-1) Fax: (33-1)