The most-powerful earthquake in Japan’s recorded history struck off the country’s northeast coast on March 11, 2011, leaving hundreds of people dead, injured or missing. In response, United States Citizenship and Immigration Services (“USCIS”) has announced that it is offering relief to Japanese citizens and other foreign nationals from the Pacific who may now be stranded in the United States due to the recent earthquakes and tsunamis in the region.

The USCIS advisory states that, if these individuals have exceeded or are about to exceed their authorized stay in the U.S. (the advisory later refers to visitor status only), they may be permitted up to an additional 30 days to depart. Visitors currently traveling under the Visa Waiver Program (“VWP”) may do one of the following:

• If at an airport, they should contact the United States Customs & Border Protection (“USCBP”) office at the airport; and
• In all others situations, they should visit their local USCIS office.

Visitors currently traveling under a nonimmigrant visa should do the following:

• They should visit their local USCIS office; and
• They should bring their passport, evidence that they are stranded (such as an itinerary for the cancelled flight), and their I-94 departure record.

The USCIS notice also incorporates by reference its regular notice regarding additional immigration relief in special situations. This notice is reproduced below:

Sometimes natural catastrophes and other extreme situations can occur that are beyond your control. These events can affect your USCIS application, petition or immigration status. We cannot anticipate these events, but will do our best to help you get the benefits for which you qualify. When requested, the following options may be available to people affected by natural catastrophes and other extreme situations:

If you have lost your USCIS-issued documents through no fault of your own, you may show your need for replacing the documents.

USCIS and USCBP previously announced similar relief for travelers who were stranded in the United States due to the Icelandic volcano eruption last year. However, that USCIS/USCBP announcement simply informed non-VWP applicants about the normal procedure for extending their stay within the United States, which usually involves filing an extension application at one of the USCIS service centers. This time, USCIS specifically states that nonimmigrants may visit their local USCIS office to seek relief.

I previously reported that the United States Citizenship and Immigration Services (“USCIS”) had temporarily suspended the new export control attestations that appear on the latest version of Form I-129 for a period of sixty days. This temporary suspension ended on February 20, 2011.

As of this date, employers who seek to petition H-1B, H-1B1, L-1 or O-1A (O-1A includes extraordinary ability in the sciences, arts, education, business, or athletics) nonimmigrants must answer Part 6 of Form I-129 “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States.” Part 6 of Form I-129 states the following:

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:

The technology and technical data that are controlled for release to foreign persons are identified on the EAR Commerce Control List (“CCL”) and the ITAR U.S. Munitions List (“USML”). Technology that is required for the development, production or use of items on the EAR’s CCL may be subject to export licensing and other restrictions, depending on the nature of the technology, the destination, the end-user and end-use.

Section 734.2(b)(2)(ii) of the EAR (15 CFR §734.2(b)(2)(ii)) states that an export of technology to a foreign national in the United States is “deemed to be an export to the home country or countries of the foreign national”; this is known as the “deemed export” rule. Similarly, Section 120.17(a)(3) of the ITAR (22 CFR §120.17(a)(3)) states that an export occurs when technical data is disclosed (including oral or visual disclosure) or transferred to a foreign person in the United States.

In order to properly complete the new Form I-129, the petitioner employer is now required to assess the technology or technical data that will be released to the beneficiary in order to determine whether an export license may be required before releasing the technology or technical data to the foreign national. If an export license is required, the petitioner must check off the appropriate answer in Part 6 of Form I-129 and take steps to prevent access to the controlled technology or technical data by the beneficiary until the petitioner receives the required license or other authorization to release it.

These new export control attestations clearly create the potential for significant liability on the part of the employer. An employer who wishes to file a petition on behalf of an H-1B, H-1B1, L-1 or O-1A nonimmigrant on or after February 20, 2011, must first review EAR and ITAR to determine whether any of the technology or technical data that will be made available to the beneficiary is subject to these export controls.

Unfortunately, a determination of export restrictions can be complex. Where the employer is unsure whether EAR or ITAR will apply, it should seek a legal opinion from a lawyer who is experienced in interpreting export control regulations.

United States Citizenship and Immigration Services (“USCIS”) announced yesterday that it received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (“FY”) 2011, which commenced on October 1, 2010 and ends on September 30, 2011. January 26, 2011, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after January 26, 2011.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

On December 22, 2010, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption. USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

Pursuant to the Immigration and Nationality Act, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY2011 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the U.S.;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second H-1B position.

As of January 14, 2011, approximately 60,700 H-1B cap-subject petitions were receipted. Additionally, United States Citizenship and Immigration Services (“USCIS”) has receipted 20,000 H-1B petitions for aliens with advanced (master’s or higher) degrees from the United States.

In other words, there are only 4,300 H-1B numbers available under the general cap (assuming of course that no H-1B numbers have been set aside for the H-1B1 program). The U.S. master’s cap has already been reached.

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. The current annual cap on the H-1B category is 65,000. However, some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. Others are completely exempt from the numerical limits.

Please note that up to 6,800 H-1B numbers may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

For further information regarding the H-1B category, please review our H-1B article, which is available here.

As part of its Form I-129 revision on November 23, 2010, United States Citizenship and Immigration Services (“USCIS”) added a new Part 6 to Form I-129, the petition form used for most non-immigrant employment classifications. The new Part 6 states the following:

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:

Clearly, many employers will not know whether their disclosure of certain information to the Beneficiary during the course of his or her employment will violate these regulations. In response to requests by numerous stakeholders to delay the implementation of this requirement, USCIS has now announced that the export control attestations (Part 6 of Form I-129) are suspended temporary for 60 days (until February 20, 2011) to allow employers to institute or modify the necessary internal processes to be able to provide accurate attestations with respect to the export control section.

As of December 17, 2010, approximately 53,900 H-1B cap-subject petitions were receipted. Additionally, United States Citizenship and Immigration Services (“USCIS”) has receipted 19,700 H-1B petitions for aliens with advanced degrees.

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. The current annual cap on the H-1B category is 65,000. However, some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. Others are completely exempt from the numerical limits.

Please note that up to 6,800 H-1B numbers may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

For further information regarding the H-1B category, please review our H-1B article, which is available here.

United States Citizenship and Immigration Services (“USCIS”) has revised its Form I-129, which employers use to petition for temporary workers in a variety of nonimmigrant visa classifications. The revised version of the form was published on the same day that the final fee rule became effective (November 23, 2010). USCIS will accept previous editions of Form I-129 for 30 days, or until December 22, 2010.

In other words, the last day that USCIS can accept previous editions of the form is December 22, 2010. Petitions must be postmarked or filed on or before this date for the previous edition to be accepted. On or after December 23, 2010, USCIS will only accept the revised form (with the November 23, 2010 revision date) and will reject requests using previous editions of the form. Petitions postmarked or filed on or after this date require the new version of Form I-129.

United States Citizenship and Immigration Services (“USCIS”) has introduced a standardized form for requesting waivers of the fees charged for immigration-benefit processing. Form I-912, Request for Fee Waiver, became available for use on November 23, 2010.

The new form identifies the requirements for documenting a fee waiver request. The form’s instructions also give information on the methodology that USCIS uses to evaluate the requests. For example, if an applicant can show that he or she is receiving a means-tested benefit and presents evidence to document that claim, then there is no requirement to submit further evidence.

USCIS will use the same methodology in reviewing all fee waiver requests, whether submitted on the new Form I-912 or in a written statement generated by the applicant.

James L. Rector, United States Customs & Border Protection (“USCBP”) Assistant Port Director (“APD”), Blaine, Washington, has informed the American Immigration Lawyers Association that USCBP has now established a NAFTA adjudications trial program. It will be staffing the Pacific Highway port of entry with NAFTA subject matter experts every Tuesday and Thursday from 8:00 am to 4:00 pm for 90 days (through February 25, 2011).

This is interesting because, the former Immigration and Naturalization Service (“Legacy INS”) initially established Free Trade Officers at ports of entry in order to ensure the consistency (and perhaps accuracy) of NAFTA adjudications. Although adjudications made by certain Free Trade Officers were not always correct and were not necessarily consistent with other ports of entry, they were consistent to the extent that similar cases submitted at the same port were adjudicated in the same manner.

When Legacy INS split in March 2003, USCBP started phasing out dedicated Free Trade Officers. The above trial program represents a reversal of USCBP’s prior decision to eliminate Free Trade Officers. If the trial program is successful, USCBP may start assigning dedicated Free Trade Officers to other ports of entry.

As of November 26, 2010, approximately 50,400 H-1B cap-subject petitions were receipted. Additionally, United States Citizenship and Immigration Services (“USCIS”) has receipted 18,400 H-1B petitions for aliens with advanced degrees.

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. The current annual cap on the H-1B category is 65,000. However, some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher. Others are completely exempt from the numerical limits.

Please note that up to 6,800 H-1B numbers may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

For further information regarding the H-1B category, please review our H-1B article, which is available here.