Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for January, 2011

FY2011 H-1B Numbers: Last Week – 62,800 Regular Cap Visas Used (2,200 left), Masters Cap Reached (January 21, 2011)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of January 21, 2011, USCIS has received approximately 62,800 H-1B petitions counting toward the 65,000 cap (an increase of 2,100 over the last week).  Also, as of December 24, the U.S. Masters cap (with its 20,000 limit) has been reached.  The numbers indicate that there are only 2,200 H-1B visas left under the FY2011 cap.

H-1B Quota Trends – Last Week of H-1B Cap Season

The numbers, as reported over the holiday weeks and for the first three weeks of January 2011, show significant increase over prior weeks.  With the U.S. Masters cap being reached, all H-1B filings (regular and Master’s cap) will be counted under the remaining H-1B quota.

H-1B Master’s Cap Reached; Regular H-1B Cap Expected to be Reached This Week

With the current pace of filings, of 2,000-2,500 H-1B cap (regular plus Master’s) filings per week, we estimate that the remaining 2,200 or so  H-1B cap visas to be used by one week from today, or by end of January 2011.

Given the H-1B processing timelines and the current state of the H-1B cap, it is unlikely that new H-1B petitions can be filed under this year’s H-1B cap which should be reached within the week.   If you are considering filing a cap-subject H-1B petition as part of next year (FY2012) quota, please contact us to start the process.

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Employment-based I-485 Adjustment of Status Inventory

USCIS has released a schedule of the inventory of pending employment-based Form I-485, Application to Adjust Status.   The statistics are very recent – as of January 5, 2011 – and are very helpful to understanding the relative queue positions for employment-based adjustment of status applicants.

How Can I Determine My Place in the AOS Queue?

An AOS application’s preference category, priority date, and country of origin determine its place in line for a visa.  The earlier your priority date is, the closer you are to the front of the line.     The report displays the total number of pending adjustment of status applications, per preference classification. The report shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year.  You can use this chart to determine how many applicants in your preference classification have priority dates in the same month and year as your own.  Also, you can determine how many applicants in your preference classification are ahead of you in line for a visa number by adding together the number of cases with an earlier priority date than your own.

Ensure That You Use The Report Relevant to Your AOS

All applicants for an employment-based green card may use the pending Form I-485 report to determine their place in line for a visa.  Because certain countries experience higher demand than others, applicants in these “oversubscribed” countries may move forward in line more slowly than applicants in countries experiencing less demand.  In other words, in order to obtain a visa, applicants in oversubscribed countries may need to have earlier priority dates than applicants in countries experiencing less demand.  Applicants in oversubscribed countries may therefore want to also refer to the report for their specific country of chargeability to determine where they stand in line with other applicants from that country.

Conclusion

We are pleased with USCIS’ efforts to provide more transparency by compiling and releasing the I-485 inventory data.  While we realize that for some of our clients and readers the inventory information will show that there is still a significant wait, the fact that AOS applicants can obtain some empirical estimate of their relative place in the processing queue is important.

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GAO Report on the H-1B Program

The Government Accountability Office (GAO) has published a January 2011 report on the H-1B program.    The GAO has produced a a comprehensive, 118-page, report which is intended to provide guidance to Congress with respect to amending or tweaking parts of the H-1B program.

The conclusion of the report is that certain reforms are needed for the H-1B program in order to minimize the risks and costs of the current program.    The main conclusions of the report are as follows.

Most interviewed companies said the H-1B cap and program created costs, but were not factors in their decisions to move R&D overseas.   GAO reports that employers generally indicate that the H-1B program and the cap adds additional costs; however, most large companies, if faced with H-1B cap shortage, find ways to employ talented foreign workers in the U.S., albeit at a higher cost.   On the other hand, small firms were more likely to fill their positions with different candidates, which they said resulted in delays and sometimes economic losses, particularly for firms in rapidly changing technology fields. Interviewed employers also cited costs due to the H-1B lottery process employed when the cap is reached—noting that it does not allow them to prioritize their candidates if they have submitted more than one petition or to make timely hires in response to business needs.

Agency data and systems hinder tracking the cap and H-1B workers over time. The total number of H-1B workers in the U.S. at any one time—and information about the length of their stay—is unknown, because (1) data systems among the various agencies that process such individuals are not linked so individuals cannot be readily tracked, and (2) H-1B workers are not assigned a unique identifier that would allow for tracking them over time—particularly if and when their visa status changes. Although information on the total H-1B workforce is lacking, data on approved petitions show that, since 2000, most people that were approved to be H-1B workers were born in China or India, were hired for technology positions, and increasingly held advanced degrees. System limitations also hinder the Department of Homeland Security from knowing precisely when and whether the annual cap has been reached each year, although this problem might be remedied through the agency’s data-modernization plan. Finally, data limitations, along with complex economic relationships, hinder our ability to estimate the potential impact raising the cap would have on U.S. worker wages and employment.

Staffing (Consulting) Companies Model and Employ of H-1B Workers Weakens Protections for U.S. Workers.   Elements of the H-1B program that could serve as worker protections—such as the requirement to pay prevailing wages, the visa’s temporary status, and the cap itself—are weakened by several factors. First, program oversight is fragmented and restricted. For example, the Department of Labor’s review of H-1B applications from employers is cursory and limited by law to only looking for missing information and obvious inaccuracies. Yet a recent Department of Homeland Security study reported that 21 percent of the H-1B petitions they examined involved fraud or technical violations.

Second, the H-1B program lacks a legal provision for holding employers accountable to program requirements when they obtain H-1B workers through a staffing company (see fig. 2). Officials from the Department of Labor’s investigative office reported receiving the bulk of their complaints from H-1B workers contracted by staffing companies.

Third, statutory changes made to the H-1B program have, in combination and in effect, increased the pool of H-1B workers beyond the cap and lowered the bar for eligibility. Specifically, these changes have increased the available exemptions to the cap; offered unlimited extensions on the visa while holders apply for permanent residency; and broadened the job and skill categories for eligibility. Regarding the latter, over 50 percent of employers requesting H-1B workers between June 2009 and July 2010 categorized their prospective H-1B workers as receiving entry-level wages, although we cannot tell whether this trend reflects lower skill levels or other factors.

Conclusion.   The GAO report concludes that the H-1B program, as currently structured, may not be used to its full potential and may be detrimental in some cases. Although executive agencies overseeing the program can take steps to improve tracking, administration, and enforcement, the data presented in the GAO raises important questions, including the adequacy of the qualifications of foreign workers the U.S. admits through the program, the appropriateness of H-1B hiring by staffing companies, and the role of the program with respect to permanent residency.

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FY2011 H-1B Numbers: Last Call – 60,700 Regular Cap Visas Used (4,300 left), Masters Cap Reached (January 14, 2011)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of January 14, 2011, USCIS has received approximately 60,700 H-1B petitions counting toward the 65,000 cap (an increase of 2,000 over the last week).  Also, as of December 24, the U.S. Masters cap (with its 20,000 limit) has been reached.  The numbers indicate that there are only 4,300 H-1B visas left under the FY2011 cap.

H-1B Quota Trends – Final Stretch in H-1B Cap Season

The numbers, as reported over the holiday weeks and for the first two weeks of January 2011, show significant increase over prior weeks.  With the U.S. Masters cap being reached, all H-1B filings (regular and Master’s cap) will be counted under the remaining H-1B quota.    We expect that the number of both regular and Master’s H-1B cap filings would increase as many employers rush to file last-minute H-1B petitions before the cap closes.

H-1B Master’s Cap Reached; Regular H-1B Cap Expected to be Reached by Late January 2011

With the current pace of filings, of 2,000-2,500 H-1B cap (regular plus Master’s) filings per week, we estimate that the remaining 4,300 or so  H-1B cap visas to be used by late January 2011.

Given the H-1B processing timelines and the current state of the H-1B cap, it is unlikely that new H-1B petitions can be filed under this year’s H-1B cap which should be reached within a week or two.   If you are considering filing a cap-subject H-1B petition as part of next year (FY2012) quota, please contact us to start the process.

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February 2011 Visa Bulletin – Minor Forward Movement in EB; No Movement in EB-2 India (Again); No Movement in FB2A

The U.S. State Department just released the February 2011 Visa Bulletin which is the fifth Visa Bulletin for the FY2011 fiscal year and first for the calendar year.    The major headline in the upcoming month’s bulletin is the major retrogression in family-based visa numbers, accompanied by the continued slow forward movement across the employment-based categories.  The retrogression in family-based categories is a surprise following recent comments by the State Department that family-based categories (especially 2A) should continue to move forward.

Summary of the February 2011 Visa Bulletin – Employment-Based (EB)

Below is a summary of the February 2011 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 ROW (Rest of World), Mexico and Philippines remain current, EB-2 China moves forward by only one (1) week to July 1, 2006, while EB-2 India remains (again, for a number of consecutive months) unchanged at May 8, 2006.
  • EB-3 ROW moves forward by only one (1) week to April 1, 2005, EB-3 China  moves forward by two (2) weeks to January 1, 2004, while EB-3 India  moves forward by three (3) weeks to February 22, 2002.  EB-3 Mexico moves forward by almost three (3) months to July 8, 2003 and EB-3 Philippines moves forward by one (1) week to April 1, 2005.
  • The “other worker” category remains unchanged at  April 22, 2003 for China.   It moves forward by one (1) week to May 1, 2003 for ROW, Mexico and Philippines.  It moves forward by three (3) weeks to February 22, 2002 for India .

Summary of the February 2011 Visa Bulletin – Family-Based (FB)

Below is a summary of the February 2011 Visa Bulletin with respect to family-based petitions:

  • FB1 ROW, China and India remain unchanged at January 1, 2005.  FB1 Mexico moves forward by two (2) weeks to January 22, 1993.  FB1 Philippines moves forward by two (2) months to August 1, 1994.
  • FB2A remains unchanged across the board:  ROW, China, India and Philippines are unchanged January 1, 2008;  Mexico is also unchanged at April 1, 2005.
  • FB2B ROW, China and India remain unchanged at April 15, 2003.  FB2B Mexico moves forward by one (1) week to July 1, 1992 and FB2B Philippines moves forward by two (2) weeks to June 1, 1999.

Slow Movement  for Employment-based Petitions and No (or Small) Change in Family-based Priority Dates

The slow forward movement across many employment categories continues, as expected, although the movement in the employment-based categories may be very disappointing to many, especially in the the EB-2 India category which did not move at all this month, for a number of consecutive months.  The slightly positive news is that EB-3 India moved forward by three weeks (compared to only one week in the prior month).

As expected this month, after the surprising January 2011 Visa Bulletin, the family-based second preference category (FB2A) remains unchanged.  Prior to the January 2011 Visa Bulletin, it was widely expected that FB2A would  continue to move forward, and to even  be current by the February 2011 Visa Bulletin (see our comments on Charles Oppenheim’s predictions from September 2010).  However, FB2A retrogressed significantly from August 2010 to January 2008 in the January 2011 Visa Bulletin last month, and this month the FB2A category remains unchanged.

What Are the Reasons for the FB2A Category Lack of Forward Movement?

Simply stated, the reason for the retrogression is high demand, caused by the prompt forward movement of family-based categories over the past months.   Last month’s Visa Bulletin showed a significant retrogression in the FB2A category, following a number of months of forward movement.  Those past forward movements have resulted in a dramatic increase in the level of applicant demand received in recent months.   This, according to the State Department, has required the retrogression of many Family preference cut-off dates for January 2011 in an effort to hold number use within the various numerical limits.

Unfortunately, according to the State Department, further retrogressions (or lack of movement) cannot be ruled out should demand continue at the current levels.  Please see our analysis of the reasons behind the retrogression and the lack of movement in the FB2A category.

Further Updates and News

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  We also invite you to contact us if our office can be of any assistance in your immigration matters or you have any questions or comments about the February 2011 Visa Bulletin.

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FY2011 H-1B Numbers: Last Call – 58,700 Regular Cap Visas Used (6,300 left), Masters Cap Reached (January 7, 2011)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of January 7, 2011, USCIS has received approximately 58,700 H-1B petitions counting toward the 65,000 cap (an increase of 1,500 over the last week).  Also, as of December 24, the U.S. Masters cap (with its 20,000 limit) has been reached.  The numbers indicate that there are only 6,300 H-1B visas left under the FY2011 cap.

H-1B Quota Trends – Final Stretch in H-1B Cap Season

The numbers, as reported over the holiday weeks and for the first week of January 2011, show significant increase over prior weeks.  With the U.S. Masters cap being reached, all H-1B filings (regular and Master’s cap) will be counted under the remaining H-1B quota.    We expect that the number of both regular and Master’s H-1B cap filings would increase as many employers rush to file last-minute H-1B petitions before the cap closes.  If history is any guide, the rate of filings in the last few weeks would increase.

H-1B Master’s Cap Reached; Regular H-1B Cap Expected to be Reached by Late January 2011

With the current pace of filings, of over 2,500 H-1B cap (regular plus Master’s) filings per week, we estimate that the remaining 6,300 or so  H-1B cap visas to be used by late January 2011.

We wish to issue a last call to H-1B employers hoping to file H-1B petition under the FY2011 cap to do so immediately.  We expect that the H-1B cap would be reached by the end of January 2011.   If you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us immediately.

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FY2011 H-1B Numbers: Last Call – 57,300 Regular Cap Visas Used (7,700 left), Masters Cap Reached (December 31, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of December 31, 2010, USCIS has received approximately 57,300 H-1B petitions counting toward the 65,000 cap (an increase of 1,500 over the last week).  Also, as of December 24, the U.S. Masters cap (with its 20,000 limit) has been reached.  The numbers indicate that there are only 7,700 H-1B visas left under the FY2011 cap.

H-1B Quota Trends – Final Stretch in H-1B Cap Season

The numbers, as reported over the week before and after Christmas, show significant increase over prior weeks.  With the U.S. Masters cap being reached, all H-1B filings (regular and Master’s cap) will be counted under the remaining H-1B quota.    We expect that the number of both regular and Master’s H-1B cap filings would increase as many employers rush to file last-minute H-1B petitions before the cap closes.  If history is any guide, the rate of filings in the last few weeks would increase.

H-1B Master’s Cap Reached; Regular H-1B Cap Expected to be Reached by Late January 2011

With the current pace of filings, of over 2,500 H-1B cap (regular plus Master’s) filings per week, we estimate that the remaining 7,700 or so  H-1B cap visas to be used by late January 2011.

We wish to issue a last call to H-1B employers hoping to file H-1B petition under the FY2011 cap to do so immediately.  We expect that the H-1B cap would be reached by the end of January 2011.   If you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us immediately.

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FY2011 H-1B Numbers Last Call – 55,800 Regular Visas Used (9,800 left), Masters Cap Reached (December 24, 2010)

USCIS released the weekly FY2011 information on the numbers of cap-subject H-1Bs filed since April 1.   As of December 24, 2010, USCIS has received approximately 55,800 H-1B petitions counting toward the 65,000 cap (an increase of 1,900 over the last week).  Also, as of December 24, the U.S. Masters cap (with its 20,000 limit) has been reached.  The numbers indicate that there are only 9,800 H-1B visas left as of more than one week ago, December 24, 2010.

H-1B Quota Trends – Final Stretch in H-1B Cap Season

The numbers, as reported over the week before Christmas, show significant increase over the week compared to the weeks prior.  With the U.S. Masters cap being reached, all H-1B filings (regular and Master’s cap) will be counted under the remaining H-1B quota.    We expect that the number of both regular and Master’s H-1B cap filings would increase as many employers rush to file last-minute H-1B petitions before the cap closes.  If history is any guide, the rate of filings in the last few weeks would increase.

H-1B Master’s Cap Reached; Regular H-1B Cap Expected to be Reached by Late January 2011

With the current pace of filings, of over 2,000 regular H-1B cap filings per week plus an additional 500 Master’s cap filings per week, we estimate that the remaining 9,000 or so  H-1B cap visas to be used by late January 2011.

We wish to issue a last call to H-1B employers hoping to file H-1B petition under the FY2011 cap to do so immediately.  We expect that the H-1B cap would be reached by the end of January 2011.   If you are considering filing a cap-subject H-1B petition as part of the FY2011 quota, please contact us immediately.

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How Does Passport Expiration Date Affect Visa Entry or Extension of Status?

The winter holidays, together with the summer vacation season, create a steady flow of inquiries and consultations from our clients regarding travel and passport expiration dates.  Most often the question is, What should be the duration of the passport for purposes of entering the U.S.?

At Least Six Months Passport Validity Required

As an initial matter, the Customs and Border Protection (“CBP”) requires that passports be valid for six months beyond the date the traveler will exit the U.S., however, the U.S. has signed agreements with a number of countries to waive this requirement.  When such an agreement is in place, the passport must be valid for the entire period of the visitor’s intended stay, but the additional six month validity period is not required.

Passport Expiration Date Before Petition Expiration Date

The question then arises for travelers who are in the U.S. pursuant to a petition with a certain expiration date, such as H-1B, L-1, etc.  For example, H-1B petitions are normally issued with a validity of three (3) years and when an H-1B worker travels to the U.S., he or she would expect that upon entering the U.S., the CBP agent would provide a Form I-94 with expiration date equal to the H-1B expiration date plus ten (10) days.  However, if the passport has an expiration date which is before the H-1B petition expiration date, CBP will normally issue a Form I-94 card with expiration date equal to the passport expiration.

However, CBP is inconsistent in the application in this rule and they often disregard the earlier passport expiration date.  This, unfortunately, creates confusion among many travelers who seem to get arbitrary Form I-94 expiration dates during different travels.

My I-94 Expiration Date Is The Same as My Passport Expiration and Earlier than My Petition Expiration — What Should I Do?

As discussed above, where the passport expiration date is before the petition (Form I-797) expiration date, CBP should issue Form I-94 with expiration date equal to the passport expiration.  As a result, the foreign national is allowed to remain in the U.S. for a period which is shorter than the period they (and their employer) expected.   In such cases, it is important to understand the options for obtaining a Form I-94 with expiration date equal to the petition expiration.

Option 1 – Form I-94 “Correction” by CBP.  Normally, CBP allows travelers who have been issued erroneous Form I-94 cards to visit a CBP office (normally at international airports) and, after obtaining a new passport, to request that they be issued a corrected I-94 card.    This approach has worked for some of our clients in the past.  However, some CBP offices refuse to issue such corrections because, technically, the  initially issued Form I-94 had the proper expiration date.

Option 2 – Application for Extension of Status.  Alternatively, an application to extend status may be filed with U.S. Citizenship and Immigration Service (“USCIS”) to request that a new Form I-94 card be issued to match the Form I-797 petition expiration date.  This option must be pursued before the Form I-94 expiration date or the extension of status application may be denied.

Note that USCIS does not require that a passport has a validity for the entire period of requested extension of stay — all USCIS needs is a passport valid at the time of filing of the application to extend status.  8 C.F.R. § 214.1(a)(3). The passport does not have to be valid for the entire period of time requested in the extension of status application as the regulations only require that the individual “agree[s] to maintain the validity of his or her passport.”

Option 3 – Leave the U.S. and Reenter with a Renewed Passport.  Finally, the foreign national may leave the U.S. and after obtaining a new passport, travel back to the U.S.   If a U.S. visa has been issued on the passport that has expired, the foreign national should carry both the new passport and the expired passport containing the valid visa. There is no need to re-apply for a new visa unless the visa term has itself expired.

Consequences of Overstaying Form I-94 Expiration

It is very important to understand that any corrections of Form I-94 card, extensions of status applications or travel abroad be attempted before the Form I-94 expiration date, as issued and determined by CBP.  Overstay of the Form I-94 expiration date starts the period of unlawful presence which has severe consequences.

First, overstaying the end date of the authorized stay, as provided by the CBP officer at a port-of-entry and noted on the Form I-94 card would automatically void or cancel the visa stamp.   In addition, filing for an extension of status after I-94 expiration has a significant chance of denial.  Finally, overstaying the I-94 expiration by more than 180 days may trigger the 3-year ban of entering the U.S. (overstaying by more than one year may result in a 10-year ban).

Conclusion

The Form I-94 expiration date is extremely important and it should be checked upon every entry into the U.S. and, ideally, while at the CBP agent station.   If you feel that you have not been issued a Form I-94 with a correct date, ask the CBP agent or ask to speak with a supervisor.  Foreign nationals should not assume that because they are entering on a visa and pursuant to a I-797 petition approval which has a certain expiration date, that the authorized period of stay in the U.S. on Form I-94 would be the same.

Our office has been able to successfully help many foreign nationals, in a variety of visa types, in either having their I-94 cards corrected or extended.  Please do not hesitate to contact us if we can be of any help.

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USCIS Proposes Employer Pre-Registration for H-1B Cap Filings

U.S. Citizenship and Immigration Service (“USCIS”) has proposed a change to the relevant regulations requiring all employers who wish to file for an initial H-1B cap petition to preregister with USCIS.    The proposal is for an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification.  In the future, other classifications may be added as needed.

The drive behind this proposed rule change is that the demand for H-1B specialty occupation workers by U.S. companies generally exceeds the numerical limitation.  As a result, the preregistration system would allow USCIS to more efficiently manage the intake and lottery process for these H-1B petitions.  It would also allow employers to electronically register for consideration of available H-1B cap numbers eliminating the need to prepare and file H-1B petitions without any certainty that an H-1B cap number will ultimately be allocated to the beneficiary named on that petition.

Benefits to USCIS and Employers

To ensure a fair and orderly distribution of H-1B cap numbers, USCIS has evaluated its current random selection process, and has found that when it receives a significant number of H-1B petitions within the first few days of the H-1B filing period, it is extremely difficult to handle the volume of petitions received in advance of the H-1B random selection process. Further, the current petition process of preparing and mailing H-1B petitions, with the required filing fee, can be burdensome and costly for employers, if the petition is returned because the cap was reached and the petition was not selected in the random selection process. Accordingly, this rule proposes to implement a new process to allow U.S. employers to electronically register for consideration of available H-1B cap numbers without having to first prepare and submit the petition.

The new mandatory, Internet-based registration system allows employers to complete a much shorter and less expensive registration process for consideration of available H-1B cap numbers. The new system will also relieve a significant administrative burden and expense from USCIS. This rule will reduce costs for some employers and increase them for others. For employers that are not allocated a cap number and therefore do not ultimately file a petition, there will be a significant cost savings. Employers that are allocated a cap number and ultimately file a petition will experience the new and additional cost of filing the registration. Additionally, USCIS will incur additional costs to implement and maintain the registration system. USCIS has weighed the benefits and costs associated with this rule and determined that the benefits to society outweigh the costs.

Timeline of Proposal

Please note that this is only a proposal at this point.  The proposed rule change is subject to a comment period until March 30, 2011.  At this point, it is not certain whether the rule will be implemented, and if so, when the system would become operational and effective.  We will continue monitoring developments on this subject and report to our readers and clients as early in advance as possible to allow H-1B employers to adjust their processes accordingly to match any new USCIS registration requirements.

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