Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for August, 2010

FY2011 H-1B Numbers Update – 34,900 Regular and 13,000 Masters Cap Visas Used (August 27, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of August 27, 2010, USCIS has received approximately 34,900 H-1B petitions counting toward the 65,000 cap (an increase of 1,000 over the past week).  Similarly, as of August 27, there were 13,000 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of about 400 over the past week).

H-1B Quota Trends – Slight Upward Trend in Regular Cap Filing

The numbers, as reported over the past week, show a decrease over the substantial 4,000 increase in the number of regular filings over the week of August 20th.  However, last week’s increase of 1,000 still marks a slight upward trend in the number of regular cap H-1B filings.

H-1B Quota Expected to be Reached in March or April 2011

With the current pace of filings, or about 1,000 regular H-1B cap filings per week and 400 master’s cap per week, we estimate that the H-1B cap would be reached in 28-30 weeks, or somewhere in March or April of 2011.

We wish to reiterate our caution to potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

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FY2011 H-1B Numbers Update – 33,900 Regular and 12,600 Masters Cap Visas Used (August 20, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of August 20, 2010, USCIS has received approximately 33,900 H-1B petitions counting toward the 65,000 cap (a substantial increase of 4,200 over the past week).  Similarly, as of August 20, there were 12,600 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 300 over the past week).

H-1B Quota Trends – Is the Substantial Regular Cap Filings Increase a One-Time Event?

The numbers, as reported over the past week, show a reversal of the recent trends of minor weekly increases.  During the past week there was a substantial increase in the number of regular cap H-1B filings — over 4,000 in a week which is drastically bigger than any the filings over the previous weeks.

It is difficult to estimate the reason for this increase but it is most likely due to the fee increase imposed on certain H-1B filings.  We suspect that a number of companies wanted to file before they were subjected to the new significant H-1B filing fee.  We will monitor next 1-2 weeks’ H-1B numbers to understand whether this increase was indeed a one-time opportunity to file before the fees were raised or there is a longer-term trend of increased regular-cap H-1B filings.

We wish to reiterate our caution to potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

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AAO Processing Times Report (August 1, 2010)

Our office handles a fair amount of appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only about about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional procssing centers.  The Freedom of Information Act (FOIA) requires that all AAO decisions be made available to the public.  As a result, AAO decisions are accessible in reading rooms at USCIS headquarters here in Washington, DC and at field offices.  Also, some (but not all) AAO decisions are available online.

Current AAO Processing Times

USCIS has released the average processing times for cases pending at the Administrative Appeals Office (AAO) as of August 1, 2010.  Overall, there is not much change in comparison to the July 1, 2010 report.

Among the most notable AAO processing times:

  • H-1B appeal takes 13 months (increase by one month compared to July 1, 2010);
  • I-140 EB1 Extraordinary Ability takes 7 months (no change), Multinational Manager or Executive takes 15 months (no change) while EB1 Outstanding Professor or Researcher category takes 6 months (no change);
  • I-140 EB2 (Advanced Degree) takes 24 months (no change) while EB2 (NIW) takes 7 months (increase by one month); and
  • I-140 EB3 Skilled Worker takes 25 months (increase by one month) while EB3 Other Worker takes 20 months on appeal (decrease by three months).

Read the full AAO Processing Times report.

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New ESTA Fee Goes Into Effect September 8, 2010 for Visa Waiver Program Travelers

We wish to remind our readers and clients that a new fee goes into effect starting on September 8, 2010 for Electronic System for Travel Authorization (ESTA) registration.  ESTA is a required pre-travel registration for Visa Waiver Program (VWP) travelers to the U.S.

About the Fee

The fee will be in the amount of $14.00 and will be required to be paid via credit card (MasterCard, Visa, American Express and Discover) at the time of completion of the ESTA pre-travel registration.  An ESTA registration is valid for up to two years so the fee will not need to be paid for subsequent VWP travels within this two-year period before a new ESTA registration (and fee) will be required.

The fee was mandated by the Travel Promotion Act of 2009 which mandates that the ESTA funds will be partnered with private funds for the purpose of U.S. travel promotion.

Fee Becomes Effective September 8, 2010

All ESTA registrations submitted on or after September 8, 2010 will require the payment of the new fee.   VWP travelers who plan to visit the U.S. in the near future may want to submit their ESTA registration in advance of this date.

The mandatory nature of the fee and the fact that it can only be paid via certain credit cards through the ESTA website has caused some concerns.  Although many Visa Waiver Countries travelers have access to credit cards at their disposal, the credit card payment requirement may deter or inconvenience some VWP travelers during their ESTA registration process.   As of now, there are no other alternative methods for paying the fee.

Visa Waiver Countries

As a reminder, the Visa Waiver Countries are: Andorra, Australia, Austria, Belgium, Brunei, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, The Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, and the United Kingdom.

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H-1B and L-1 Fee Increase for Certain Filings Becomes Effective

Many of our readers and clients are aware of the recent developments with respect to the “border security bill” passed by Congress and recently signed by President Obama into law (Public Law 111-230).

What Are the New H-1B and L-1 Filing Fees?

Effective immediately, Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions postmarked on or after Aug. 14, 2010, and will remain in effect through Sept. 30, 2014.

Note that not all H-1B or L-1 cases are subject to these new fees.  These additional fees apply to petitioners who employ 50 or more employees in the United States with more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.  Petitioners meeting these criteria must submit the fee with an H-1B or L-1 petition filed:

  • Initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15) (H-1B or L-1 cases), or
  • To obtain authorization for an alien having such status to change employers.

It should also be noted that this additional fee, where applicable, is in addition to any applicable filing, fraud prevention, ACWIA or premium processing fees.

Revisions of Form I-129 is Underway

Because Public Law 111-230 is effective immediately but USCIS has not released a revised Form I-129 to reflect the new requirements and fees, USCIS advises all H or L filings to clearly describe whether the new fee applies:

USCIS recommends that all H-1B, L-1A and L-1B petitioners, as part of the filing packet, include the new fee or a statement of other evidence outlining why this new fee does not apply. USCIS requests that petitioners include a notation of whether the fee is required in bold capital letters at the top of the cover letter. Where USCIS does not receive such explanation and/or documentation with the initial filing, it may issue a Request for Evidence (RFE) to determine whether the petition is covered by the public law. An RFE may be required even if such evidence is submitted, if questions remain.

Source: USCIS Update: USCIS Implements H-1B and L-1 Fee Increase According to Public Law 111-230 (August 19, 2010)

Conclusion

The H-1B and L visa fee increase is likely to impact a number of companies relying heavily on foreign workers.  The law has sparked some controversy and is subject to a number of diplomatic, political and even international trade disputes.   However, as it stands now, all H-1B and L filings should undergo an additional level of analysis whether Public Law 111-230 applies.

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FY2011 H-1B Numbers Update – 29,700 Regular and 12,300 Masters Cap Visas Used (August 13, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of August 13, 2010, USCIS has received approximately 29,700 H-1B petitions counting toward the 65,000 cap (an increase of 1,200 over the past week).  Similarly, as of August 13, there were 12,300 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 400 over the past week).

H-1B Quota Trends

The numbers, as reported over the past few weeks – confirm the trend that there was a very small weekly increase in the number of H-1B filings for the regular and Masters’s caps filings compared to the weeks prior.  The overall trend shows that the H-1B filings for the regular cap may be increasing slightly while the U.S. master’s cap filings remain slow. As a result and if the current trend remains, we estimate that the H-1B quota will remain open  for a considerable time.  We wish to caution potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

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FY2011 H-1B Numbers Update – 28,500 Regular and 11,900 Masters Cap Visas Used (August 6, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of August 6, 2010, USCIS has received approximately 28,500 H-1B petitions counting toward the 65,000 cap (an increase of only 3,200 over the past three weeks).  Similarly, as of August 6, there were 11,900 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 900 over the past three weeks).

H-1B Quota Trends

The numbers, as reported over the past few weeks – indicate that there was a very small weekly increase in the number of H-1B filings for the regular cap while there was a slight decrease in the Masters’s caps filings compared to the weeks prior.  The overall trend shows that the H-1B filings for the regular cap may be increasing slightly while the U.S. master’s cap filings remain slow. As a result, although it is early to draw reliable long-term conclusions, if the current trend remains, we estimate that the H-1B quota will remain open  for a considerable time.  We wish to caution potential H-1B employers and employees that as the U.S. economy is seen to recover and grow, it is possible that the pace of H-1B filings will increase.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, if you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.

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September 2010 Visa Bulletin – Last Bulletin for the Fiscal Year: EB-2 and EB-3 Forward Movement

The September 2010 Visa Bulletin was just released by the State Department.  The last visa bulletin for the fiscal year 2010 brings some forward movement across all categories, with the exception of EB-3 India.

Summary of the September 2010 Visa Bulletin – Employment-Based (EB)

Below is a summary of the September 2010 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 ROW (Rest of World) remains current, EB-2 China moves forward by slightly over two (2) months to May 8, 2006, EB-2 India also moves forward by two (2) months from March 1, 2006 to May 8, 2006.
  • EB-3 ROW moves forward by six and a half (6.5) months to December 15, 2004, EB-3 China  moves forward by one (1) month to October 22, 2003, while EB-3 India  remains unchanged.  EB-3 Mexico remains unavailable.
  • The “other worker” category moves forward by a few months, to March 22, 2003 for ROW and China remains unchanged at January 1, 2002 for India.

Substantial Forward Movement Continues

The notable forward movement in EB-2 and some EB-3 categories continues in this month’s visa bulletin as well.   This significant movement is due to the fact that there are some visa numbers available from other countries have not been reached yet and such countries’ per-country limit has not been reached.  As a result, as we are getting close to the end of the fiscal year, and after taking the worldwide demand into account, the State Department is attempting to allocate all of the available visa numbers which, if not allocated, may remain unused during the fiscal year.

Forward Movement Is Temporary

We wish to reiterate that the substantial forward movement  over the past three visa bulletins does not indicate a trend; instead, the last three visa bulletins’ forward movement was to ensure that no available visa numbers remain unused due to poor allocation of the unused numbers.  We expect that there be some retrogression over the next 1-3 months.

Please do not hesitate to contact us if you have any questions or if we can help you prepare and file your I-485 adjustment application, should your priority date become current.

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