Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for March, 2008

The “Visa Roulette” Begins Tomorrow

On the eve of April 1st, the day when many H-1B visa-seeking employees and companies file their work visa petitions, the Wall Street Journal (paid subcription required) reports on the problems which many U.S. businesses face in hiring foreign skilled workers.

As many of our readers know, the H-1B visas enable U.S. companies to hire skilled foreign workers for jobs which are difficult to fill with domestic workers.  Last year, the U.S. Citizen and Immigration Services (USCIS) received  124,000 applications for H-1B visas, nearly double the yearly cap of 65,000 set by Congress.  Because the number of applications exceeded the available number of visas, the USCIS used a random lottery to determine which applications will be approved.

Because the filing window opens on April 1st, for a starting date as early as October 1st, the applicants have only one shot at applying for, and getting a visa.  If the visa petition is received by the government a week late, or if the paperwork is not properly prepared, the company and its potential employee are out of luck because they do not have a chance to amend and re-file.

Many companies and applicants who are participating in the H-1B application season are hoping that the slowdown in the economy will drive down the applicants’ numbers this April.  However, as the Wall Street Journal reports, many softening sectors in the economy’s foreign worker needs are offset by  very strong demand in other areas, such as technology.  Also, just because the filing window is so small, many employers will try to make their hiring decisions early, and apply for their foreign nationals’ work visas in April.

What this year’s H-1B filing season will bring remains a mystery, but anecdotal evidence from our colleagues at other law firms suggests that demand for the H-1B visa is still very strong  and almost certainly there will be a lottery to distribute the excess H-1B visa applications.

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USCIS Modifies H-1B Selection Process

In a press release dated March 19, 2008, the USCIS announced that it has sent for publication in the Federal Register interim rule that provide some useful guidance for foreign nationals seeking to obtain H-1B visa in April.

The new rule prohibits employers from filing multiple petitions on behalf of the same employee. This rule is intended to ensure that all companies who file a petition for a foreign worker have an equal chance to obtain approval. According to the rule, USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicate petitions. However, the rule does not prevent related employers (e.g. parent company and its subsidiary) from filing petitions on behalf of the same employee for different positions, based on a legitimate business need.

The rule also outlines the method of counting the cap-exempt U.S. advanced degree H-1B petitions. As many of our clients know, for Fiscal Year (FY) 2009, Congress has set a limit of 65,000 for most H-1B visas. The first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap. Once USCIS receives 20,000 advanced degree petitions, all subsequent cap-exempt cases are counted towards the cap.

The rule also expands the window for receipt of H-1B petitions which will be included in the lottery in case the H-1B cap is met within the first five business days after April 1. The new window is five business days after April 1.

Finally, the rule makes it clear that USCIS will deny petitions that incorrectly claim a cap exemption and the filing fees will not be returned.

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April 2008 Visa Bulletin: Good News for EB2 India

The State Department just released its April 2008 Visa Bulletin and it brings some good news and relief to EB2 India applicants – the cutoff date for EB2 India has moved from “unavailable” to December 1, 2003.

See the full April 2008 Visa Bulletin.

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US in High Demand of Skilled Labor

A new report by the National Foundation for American Policy (NFAP) indicates that major US companies experience severe shortages of skilled labor. According to the report, major U.S. technology companies today average more than 470 U.S.-based skilled job openings.  NFAP surveyed postings for U.S.-based jobs that require at least an undergraduate degree for 500 companies listed in the S&P 500.  The results suggest that there are 140,000 skilled job openings today (the research was conducted with December 2007, January 2008 and February 2008 data).  If this demand number is extrapolated through the broader economy for non-S&P 500 companies, the number of available skilled job in the U.S. economy becomes substantially larger.

Among the other findings of the report was the fact that the shortage of H-1B visas has resulted in a significant increase in demand of skilled labor.  Because of the relatively complicated and long procedure for obtaining labor-based U.S. permanent residency, the H-1B program has been crucial avenue for U.S. companies to attracting skilled labor.  The unavailability of H-1B numbers over the past years makes recruiting foreign talent increasingly difficult.

Another finding was that in 2005, foreign nationals received 55% of electrical engineering master’s degrees and 42% of computer science master’s degrees.  Because of this substantial proportion and numbers of skilled foreign nationals, companies are facing difficulties in hiring them due to visa number unavailability.  Even though USCIS instituted a separate number of U.S. advanced degree holders for the purposes of H-1B visas, the 20,000 additional advanced degree H-1B visa numbers are quickly exhausted at the beginning of each fiscal year.

The NFAP study helps highlight some important issues which not only affect immigrants but a large number of U.S. businesses who are in desperate need of qualified talent.  Even though there is a wide demand of skilled professionals, the slow and inadequate number of labor visas make it increasingly difficult for foreign nationals to obtain work in the U.S.

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New Biometric Requirements for Re-Entry Permits

Effective March 5, 2008, all applicants for re-entry permits and refugee travel documents must provide biometrics (fingerprints and photographs) as part of the application process. The significance of the revised procedure is that all applicants must submit to biometric processing after they file Form I-131 and before they leave the country.

The new Form I-131 instructions require that applicants for re-entry permits and refugee travel documents who are ages 14 to 79 provide biometrics before departing from the United States. There is also a new fee of $80 associated with the biometrics.

Considering the longer process and the high likelihood of delays, applicants must apply well in advance of their travel. Once an applicant submits his or her Form I-131, the USCIS will mail the applicant his or her receipt and a biometric center scheduling notice. Once the applicant completes the biometric process, he or she can either wait in the United States to receive the travel document or he or she can have USCIS forward it to a consulate abroad for pickup. Additionally, USCIS has indicated that they will allow expedited processing of travel documents under proper circumstances.

Since this is a new process, it is unclear what is a proper window of time one should allow between the planned travel and the time of I-131 filing. Additionally, we are not sure yet what is the standard for reviewing the expedited processing requests. Because this is a new procedure we think it is prudent to start it as early as possible. We will monitor the timing and attempt to obtain a safe timeline for proper filing of I-131 and submission to biometric processing.

Update: some instructions on expedited processing.



Guide to H-1B Cap Exempt Employers

Many foreign nationals who seek to obtain H-1B status face significant difficulties due to the current structure and limited numbers of the H-1B visa program.

As many of our readers are well-aware, the H-1B visa program has an annual cap which was exhausted on the first day during April 2007 and is expected to be exhausted during the first day of the filing season in April of 2008.  Because of this very limited window for filing, many foreign nationals who graduate from U.S. colleges or universities every year in May find themselves unable to obtain H-1B visa shortly after graduation and while many are able to use OPT work authorization for up to one year, they still may face a gap in their employment authorization in the following H-1B filing season.

Many foreign nationals, however, are not aware that a qualified institution of higher education or research non-profit organization is exempt from the H-1B cap and can sponsor a H-1B visa at any time of the year and at a lower filing cost.  This memo aims to clarify which institutions qualify for the cap-exempt status.

June 6, 2006, USCIS Memo

The guidance on which institutions qualify for cap-exempt status comes from American Competitiveness in the Twenty-First Century Act of 2000 (AC21) and from a June 6, 2006, USCIS Memorandum (the “USCIS Memo”) by Michael Aytes, then Director of Domestic Operations at USCIS.

AC21 and the USCIS Memo spell out the three categories of employers who are cap-exempt.  They are 1) an institution of higher education, 2) related or affiliated to a higher education institution nonprofit entity, and 3) nonprofit research organization or a governmental research organization.

Institutions of Higher Education

The definition of “institution of higher education” comes from the Higher Education Act of 1965.  Under the definition, an institution of higher education is one which:

  • admits students who have completed secondary education;
  • is licensed to provide education beyond secondary school;
  • provides educational programs for which the institutions award bachelors’ degrees or provide programs of not less than 2 years that are acceptable for full credit toward bachelors’ degrees;
  • is a public or nonprofit institution; and
  • is accredited or has been granted pre-accreditation status by a recognized accrediting agency.

It should be noted that all of the criteria above must be met in order for an institution to qualify for a cap-exempt status for H-1B purposes.  Therefore, the definition eliminates elementary or secondary schools, such as public or private schools, charter schools, etc.

Affiliated or Related Nonprofit Entity

The USCIS Memo states that it is sufficient that the nonprofit entity is connected to the institution of higher education through shared ownership, control or be somehow attached to the higher education institution as a member, branch or subsidiary.

Nonprofit Research Organization or a Governmental Research Organization

A nonprofit research organization is an organization that is primarily engaged in basic research and/or applied research. A governmental research organization is a United States Government entity whose primary mission is the performance or promotion of basic research and/or applied research. Basic research is general research to gain more comprehensive knowledge or understanding of the subject under study, without specific applications in mind. Basic research is also research that advances scientific knowledge, but does not have specific immediate commercial objectives although it may be in fields of present or potential commercial interest. It may include research and investigation in the sciences, social sciences, or humanities. Applied research is research to gain knowledge or understanding to determine the means by which a specific, recognized need may be met. Applied research includes investigations oriented to discovering new scientific knowledge that has specific commercial objectives with respect to products, processes, or services. It may include research and investigation in the sciences, social sciences, or humanities.


An employer or a foreign  national who wishes to seek a cap-exempt H-1B petition should verify whether the employer qualifies for a H-1B cap exempt employer given the three categories above.  In many cases such analysis will be fairly quick (e.g. recognized universities) but in some cases, especially with nonprofit organizations, the analysis may be more complicated and nuanced.

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