Employers, Particularly Smaller Entities, Should Update their D&B Reports to Avoid Costly Delays in H-1B Visa and other Petitions

On January 28, 2011, the USCIS started beta testing its new verification system for U.S. employers filing visa petitions.  That system -- Validation Instrument for Business Enterprises (“VIBE”) --is supposed to provide a simple method for the government to use data from Dun & Bradstreet (D&B) to validate information about entities, including date of establishment, corporate structure, physical address, head count, financial status and more.  We have learned that the opposite has started to occur, however, with mismatches appearing between petitions filed and D&B reports.  As a result,  employers, particularly smaller entities, should take steps to update D&B or risk possible costly Requests for Evidence.

When the government first announced this verification system back in 2010, it indicated that the process would be supplementary in that USCIS would consult the VIBE database for petitions only when the initial documentation presented was insufficient to approve the case.  Unfortunately, however, our colleagues have reported that the government is issuing lengthy Requests for Evidence for smaller sized entities simply based on outdated D&B information, even when the employer provided documentation in the underlying application package, such as a new address.   We will be working with certain of our employer clients to have them check their status on D&B before our office files petitions with the USCIS.  Employers may update their D&B profile for free by contacting D&B and providing head count, address and other financial data.  Contact information for D&B:  1-800-234-3867; www.dnb.com.  It is a good idea for employers to keep notes of their update efforts for possible later use in dealing with the USCIS.

U.S. Department of State has announced significant forward movement in the EB-2 category effective May 1, 2011.  We applaud this  smart use of “unused” visas in the EB-1 first preference category analyzed by Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting Division of the State Department.  We expect to see the actual visa numbers within the next two weeks.

About the middle of each month, the State Department releases its Visa Bulletin for the following month which announces cut off dates for visas.  Currently, the State Department’s April Visa Bulletin provides that permanent visas are available for EB-2 Chinese nationals with priority dates of July 22, 2006, and for EB-2 Indian nationals, May 8, 2006.   [Generally, EB-2 visas are for employees filling positions requiring at least a MS degree or the equivalent.  National Interest Waiver cases also fall under this category.]   For the last several years, movement has been very slow in the EB-2 category, with 5 year waiting periods for Indian and Chinese foreign nationals.   There are only 140,000 employment-based permanent visas available per year.  Mr.  Oppenheim just announced to our immigration trade association, the American Immigration Lawyers Association:

“[US]CIS says they have seen a decline in [EB-1] filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

While we believe that low filings in the EB-1 First Preference classification results from wrongful denial of eligible EB-1 cases by the USCIS, and have advocated that the USCIS follow the applicable law in this area, we are nonetheless appreciative of the adept number crunching and reasonable result offered by Mr. Oppenheim in the interim. 

The Department of State has just released the April 2011 Visa Bulletin. Dominican Republic has been moved into the All Chargeability Area.  EB-1 permanent visas remain current while Mexico, for the fourth consecutive month, makes the most progress in the EB-3 category (four months).

EB1 - all still current

EB2

All others - still current
China – advances 2 weeks to July 22, 2006
India – remains at May 8, 2006
Mexico - still current
Philippines - still current

EB3
                              
All others –advances 3 weeks to July 22, 2005
China – advances 1 month and 1 week to March 1, 2004
India – advances 3 weeks to April 8, 2002
Mexico – advances 4 months to May 8, 2004
Philippines – advances 3 weeks to July 22, 2005

Space is limited. Please reserve your seat here.

Founded in 2004, the International Network of Boutique Law Firms is a group of leading national and international law firms. Member firms are thoroughly vetted to ensure that their clients receive the highest level of service and legal knowledge. The INBLF’s Immigration Practice Group consists of immigration boutique firms throughout the United States, including Weaver, Schlenger & Mazel, that satisfy the INBLF’s elevated membership standards.