Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for March, 2012

Reminder: H-1B Work Visa Quota Opens for New Filings on April 2

One of the most popular U.S. work visas, the H-1B, will start accepting filings for new H-1B employment on April 2.     Pursuant to each yearly H-1B quota, new H-1B filings can be filed on April 1 (April 2nd this year because April 1st is a Sunday), at the earliest, for a starting date of employment on or after October 1.

The H-1B Quota and Expectations for This Year

When the H-1B visa category was created in 1990, Congress imposed an annual cap on the number of new H-1B visas which can be issued.  Although the cap has varied through the years, it is set to 65,000 per year plus 20,000 for graduates of U.S. masters programs for the new fiscal year (FY2013) starting on October 1, 2012.

As discussed above, the H-1B cap “opens” on April 2, 2012 and will remain open for new H-1B filings until the 65,000 H-1B limit is reached.  While it is impossible to predict exactly when the FY2013 H-1B cap will be reached, it is helpful to provide some context.  For FY2009, filing made on or after April 1, 2008, caused the H-1B cap to be reached in eight (8) days.   For the FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009.  For FY2011, the H-1B cap was open between April 1, 2010 and January 25, 2011 and last year, FY2012, the H-1B cap was open between April 1, 2011 and November 2, 2011.

Conclusion

We do not know yet how quickly would this year’s H-1B cap be reached.   On one hand, the US economy and hiring is improving; on the other hand, it is not improving that fast.    While we see higher H-1B work visa demand this year, compared to last, we do not anticipate that the H-1B cap will  be reached in the first few weeks of this year’s filing season.

Throughout the H-1B season, we will be providing bi-weekly updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  We will also be providing updates on the number of H-1B cap filings and will be revising (hopefully by making them more accurate) our estimates of how long the H-1B cap would last.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us.

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DHS Report on Estimates of the Unauthorized Immigrants Residing in the US

The Department of Homeland Security (DHS) has released its report on the numbers of unauthorized immigrants residing in the U.S. as of January 2011.     The report makes a notable change in the methodology and also takes into consideration the 2010 Census data.   The DHS report, perhaps unsurprisingly, indicates that an estimated 11.5 million unauthorized immigrants were living in the U.S. in January 2011 compared to a revised 2010 estimate of 11.6 million.   The (very slight) decrease in the number of unauthorized immigrants is attributed mainly to the economic recession and some renewed removal efforts by the current administration.

Long Term Trends

The unauthorized immigrant population increased from 2–4 million in 1980 to 8.5 million by 2000.  After 2000, the number of unauthorized immigrants continued to increase. Previous estimates suggest a peak in about 2007 of 11.8 million or 12.0 million (variation is based on data from different surveys).    The January 2011 report of 11.5 million suggests a slight decrease over the past few years.

Period of Entry

Of the 11.5 million unauthorized immigrants in 2011, 1.6 million (14 percent) entered the United States on January 1, 2005 or later.  Larger numbers came during 2000-2004 (3.3 million or 29 percent) and 1995–1999 (3.0 million or 26 percent). Fewer came between 1990–1994 (1.6 million or 14 percent) or in the 1980s (1.9 million or 17 percent).

Estimates by Region and Country of Birth

An estimated 8.9 million (77 percent) of the total 11.5 million unauthorized immigrants living in the United States in 2011 were from North America, including Canada, Mexico, the Caribbean, and Central America.  The next leading regions of origin were Asia (1.3 million) and South America (0.8 million).  Between 2000 and 2011, the greatest increase in the unauthorized population occurred among natives of North America (2.8 million).

Mexico continued to be the leading source country of unauthorized immigration to the United States.  There were 6.8 million unauthorized immigrants from Mexico in 2011, representing 59 percent of the unauthorized population.   The next leading source countries were El Salvador (660,000), Guatemala (520,000), Honduras (380,000), and China (280,000).

Estimates by State of Residence

California remained the leading state of residence of the unauthorized immigrant population in 2011, with 2.8 million.  The next leading state was Texas with 1.8 million unauthorized residents, followed by Florida (740,000), New York (630,000), and Illinois (550,000).

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Correcting SEVIS Records: The Data Fix Explained

Created in 2002, the Student and Exchange Visitor Information System (SEVIS) is used to track and monitor foreign students (F-1 visa holders) and exchange visitors (J-1 visa holders), as well as their accompanying dependents (F-2 and J-2 visa holders).  While SEVIS has streamlined many formerly cumbersome data reporting requirements and improved information accuracy, there are occasions where the data contained in a SEVIS record is either incorrect or in need of an update because of a student or visitor’s changing circumstances.  A remedying correction or update is typically obtained through a SEVIS data fix.

When Is a Data Fix Needed?

Oftentimes, an error or change to a SEVIS record can be handled by the school’s Designated School Official (DSO).  Many entries in the SEVIS system have a link located next to the information in the SEVIS record that allows as DSO to independently correct the error or make the appropriate change.  When this particular function is not working, or if a change needs to be made for which there is not a link to make the correction, the DSO should contact the SEVIS help desk to request a data fix.

There are a variety of reasons a DSO may need to request a data fix, but the most frequent requests are in connection with a student’s employment eligibility.   Common data fix requests include the following:

  • A student needs a new Form I-20 to present for I-9 verification to begin employment.
  • A STEM (Science, Technology, Engineering & Mathematics) student needs to apply for an extension o f his or her Optional Practical Training (OPT).
  • A student eligible for “cap-gap” relief – i.e., the gap period between the expiration of a student’s F-1 status (and related employment eligibility) and the commencement of the student’s H-1B status – needs to apply for an extension of his or her status and work eligibility.
  • A student has properly changed to another nonimmigrant or immigrant status and SEVIS needs to be updated accordingly.

How to Request a SEVIS Data Fix?

A SEVIS data fix can be requested by either calling the SEVIS Help Desk at (800) 892-4829, or by emailing SEVIS at SEVIShelpdesk@eds.com.  Once the request is placed with the SEVIS help desk, the DSO will be issued a help desk ticket with a unique reference number.  The help desk will then commence working on the data fix.   SEVIS data fix processing times can vary depending on the nature of the information that must be changed or updated.

Can a Data Fix Requests be Expedited?

Placing a request with the Help Desk should be the DSO’s first step, regardless of the urgency of the matter, as the help desk ticket number is required to escalate any request.   If a data fix is urgently required, the DSO should first email the SEVIS help desk to request a data fix, followed by an email to toolbox.SEVIS@dhs.gov to request an expedited fix.  The help desk ticket number should be included in the email for tracking purposes.

If for any reason a student urgently needs a new Form I-20, and a data fix cannot be processed quickly enough, the student can use his or her most recent Form I-20 together with a letter from the DSO that explains that the student is in status, and that a more current Form I-20 will be provided upon the completion of the data fix.

The SEVIS system has been designed and subsequently upgraded to enable a DSO to resolve most errors or changes needed in a SEVIS entry.  For those instances when outside assistance is needed, a data fix request to the SEVIS Help Desk is an excellent resource to efficiently correct a SEVIS entry.

Conclusion

Our office often assists F-1/J-1 holders whose SEVIS records have incorrect information and are attempting to obtain a certain F-1/J-1 benefit and most often the issue can be resolved either by the DSO directly or by requesting a data fix.   Unfortunately, the procedure of correcting a SEVIS record is entirely controlled by the DSO and his or her schedule and responsiveness may affect the outcome of a particular situation.    Please do not hesitate to contact us if we can be of any assistance with a situation relating to a SEVIS record – we may be able to provide assistance in making sure an issue is resolved quickly.

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Charles Oppenheim: EB-2 India and China Cutoff Date Expected to Retrogress to August 2007

Only a day after we published our own predictions for the outlook of EB-2 India and China cutoff dates over the next few months, Mr. Charles Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State and also known as the person responsible for the Visa Bulletin cutoff dates movement, has provided his own thoughts on the movement of EB-2 India and China.

EB-2 India and China Expected to Retrogress to August 2007

During an AILA event today, March 16, Mr. Oppenheim indicated that he will likely retrogress India and China Employment-Based Second Preference (EB-2) cutoff dates to around August 2007, effective with either the May or June 2012 Visa Bulletin.   He also advised that he projects that all EB-1 visas available in FY2012 will be used this year, resulting in no “spilldown” to EB-2.

Mr. Oppenheim’s comments confirm our own predictions that a slowdown or retrogression in EB-2 India/China is imminent.   As a result of this, we urge all EB-2 India and China applicants who have a current priority date as of the March or April 2012 Visa Bulletin to immediately consider filing for an I-485 application.   It is likely that this window of filing opportunity for many EB-2 India and China applicants will close starting May 1st.

Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

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 current  Visa Bulletin or our thoughts about cutoff dates for the next few months.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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Report Highlights Increase in USCIS Denial Rates for L-1 and H-1B Petitions

In a recent report the National Foundation for American Policy (which claims to be a non-profit, non-partisan organization dedicated to public policy research on trade, immigration, education, and other issues of national importance) has analyzed the USCIS rates of issuing requests for evidence (RFE) and denials of L-1 and H-1B petition over the past several years and provides several interesting observations.

The Report:   USCIS Has Changed L-1 and H-1B Adjudication Standards

The report, Analysis: Data Reveal High Denial Rates For L-1 and H-1B Petitions,  dated February 2012, claims that USCIS has (silently) changed the adjudication standards for L-1 and H-1B petitions which has, between 2007 and 2011, affected dramatically the outcome of the adjudications of such petitions.   The report analyzes trends in rates of RFEs and denials between 2007 and 2011 and notes that,

“The dramatic increase in denial rates and Requests for Evidence for employment petitions without any change in the law or regulations raises questions about the training, supervision and procedures of the career bureaucracy that adjudicates petitions and the U.S. government’s commitment to maintaining a stable business climate for companies competing in the global economy.”

Key Findings of the Report

Among the key findings of the report are the following:

  • denial rates for L-1B petitions rose from 7% in FY2007 to 22% in FY2008 (without changes in the relevant laws or regulations), and then stayed relatively high at 26%, 22% and 27% for fiscal years 2009, 2010 and 2011, respectively;
  • denial rates for H-1B petitions increased from 11% in FY2007 to 29% in 2009, but has subsequently decreased to 21% in 2010 and 17% in FY2011;
  • denial rates for L-1A (international managers) petitions increased from 8% in 2007 to 14% in 2011;
  • RFE rates for L-1B rose from 17% in FY2007 to 49% in FY2008 and to 63% in FY2011 (the report also reminds that the RFE rate in FY2004 was 2%);
  • RFE rates for H-1B rose from 4% in FY2004 to 18% in FY2007 to a high of 35% in FY2009 (the most recent number is 26% RFE rate for FY2011);
  • RFE rates for L-1A increased from 4% in FY2004 to 24% in FY2007 and to a current 51% in FY2011.

Denial and RFE Rates Show Alarming Trends; Some Rates Appear to be Decreasing

The rate of RFEs and denials is alarming because it does not seem to be supported by substantive changes in the law or regulations.    Some of the increased RFE/denial rates may be explained due to the slowing economy, and lack of ability of petitioners to show placement or available work.   Additionally, some of the increase in -1B cases may be attributed to increased scrutiny (and the Neufeld Memo) on IT consulting companies.    Nonetheless, the sharp increase in the RFE/denial rates for the H-1 and L-1 petitions are alarming for many US companies who rely on foreign talent to continue to provide their products and services to the US market.

The good news, if any, is that the RFE/denial rates, even though they may be very high historically, seem to be leveling off or decreasing.   Our office has witnessed these increased rates (although perhaps not by the magnitude highlighted in the report) and we can share some of our clients’ concerns that one of the main concerns of a US company sponsoring a foreign worker is predictability and fair rules.     Our hope is that USCIS will provide clear guidance and consistent application of their own rules and policies to allow fair but consistent application processes.

Our office will be monitoring new developments on this topic and we would be providing relevant updates on our website and via our weekly newsletter.  In the meantime, please do not hesitate to consult us if we can be of any assistance.

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EB-2 India and China Prediction and Outlook for the Rest of the Fiscal Year

Our office has actively monitored the Visa Bulletin developments for the past several months, not only by analyzing each Visa Bulletin but also by seeking input from other sources such as demand data, economy and unemployment and, most importantly,  by consulting with Mr. Charles Oppenheim (Chief of the Visa Control and Reporting Division at the U.S. Department of State and also known as the person responsible for the Visa Bulletin cutoff dates movement) when we have had the opportunity to do so.

Throughout the past few months we have been able to assist many clients in preparing and filing their I-485 adjustment of status applications or in processing their immigrant visas through the National Visa Center.    One of the most common questions we get from current and prospective clients is, “How are the cutoff dates for EB-2 India/China going to move in next month’s Visa Bulletin?”   This is especially true after the most recent Visa Bulletin, the April 2012 Visa Bulletin was released earlier this week showing no movement in the EB-2 India/China categories.

EB-2 India/China Category Outlook — No Major Forward Movement, Possible Retrogression

Before we share our own thoughts on the EB-2 India/China outlook, an important disclaimer is necessary.   This is our own opinion and estimate.  It is based on our first hand experience in analyzing the Visa Bulletin for months/years,  by talking with other stakeholders and by gathering official and unofficial public information from Department of State and Citizenship and Immigration Service.    There are so many factors and datapoints (many of which we non-public information) that go into determining the cutoff dates, that we may simply be wrong in our assumptions.

With this in mind, we think that the cutoff dates for EB-2 India and China would remain steady for the rest of the fiscal year (ending on September 30).   Judging by a note published as part of the February 2012 Visa Bulletin and by comments by Charles Oppenheim from January 19, 2012, it seems that the forward movement in EB-2 India and China for this fiscal year is coming to an end.    Mr. Oppenheim had indicated that if visa number demand (I-485 and NVC case filings) continues to be strong over January, February and March, he would need to hold the movement and, possibly, retrogress.

Given the fact that there has been notable demand, indicated by I-485 filings, and given that Mr. Oppenheim has decided to keep the April 2012 Visa Bulletin unchanged for EB-2 India and China, it may be assumed that Mr. Oppenheim has seen sufficient number of filings in order to ensure that no visa numbers go unused for the remainder of the fiscal year.     While it is possible some additional forward movement over the next few Visa Bulletin editions, such movement in EB-2 India/China, if any, is likely to be very small.

Current Priority Date?

Given the possibility of slowdown and/or retrogression in the EB-2 India/China cutoff dates, our office stands ready to assist in the applicable process to take advantage of the recent significant forward movement in the cutoff dates across many of the categories, including applicants in EB-2 India and EB-2 China.   Those applicants whose priority dates are current as of the April 2012 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

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 April 2012 Visa Bulletin or our thoughts about cutoff dates for the next few months.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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April 2012 Visa Bulletin – EB-2 India and China Unchanged; Slow Movement in EB-3; FB-1 Advances Again; Moderate Movement in FB2A

The U.S. State Department just released the April 2012 Visa Bulletin which is the seventh Visa Bulletin for the FY2012 fiscal year.    The major headline in the upcoming month’s bulletin is lack of any movement EB-2 India and China.   Also, there is some  continued forward movement in FB-1.

Summary of the April 2012 Visa Bulletin – Employment-Based (EB)

Below is a summary of the April 2012 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 remains current for EB-2 ROW, Mexico and Philippines.   EB-2 India and EB-2 China remain unchanged at May 1, 2010.
  • EB-3 ROW, EB-3 Mexico and EB-3 Philippines move forward by only three (3) weeks to April 8, 2006, EB-3 China  moves forward by two (1) months to March 1, 2005, while EB-3 India  moves forward by only one (1) week to September 1, 2002.
  • The “other worker” category remains unchanged (again) at  April 22, 2003 for China.  It moves forward by three (3) weeks for ROW, Mexico and Philippines to April 8, 2006.  It also moves forward by one (1) week for India to September 1, 2002.

Summary of the April 2012 Visa Bulletin – Family-Based (FB)

Below is a summary of the April 2012 Visa Bulletin with respect to family-based petitions:

  • FB-1 moves forward (again, for seventh consecutive month).  FB-1 ROW, China and India all move forward by two (2) months to April 1, 2005.   FB-1 Mexico moves forward by one (1) week to May 8, 1993 and FB-1 Philippines remains unchanged at June 22, 1997.
  • FB-2A moves forward by two and a half (2.5) months to October 8, 2009 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by two  (2) months to September 1, 2009.
  • FB-2B ROW, China and India move forward by two (2) months to January 15, 2004.  FB-2B Mexico remains unchanged at December 1, 1992.   FB-2B Philippines also remains unchanged at December 8, 2001.

Substantial Movement in EB-2 India and China Seems to be Ending;  Slow Movement  for EB-3; Continued (for Seventh Month) Forward Movement in FB-1

One of the major headlines this month, in the seventh Visa Bulletin for the Fiscal Year 2012 is the lack of any forward movement in EB-2 India and China.    This is a confirmation of the Visa Bulletin Predictions provided by our office after meeting Mr. Charles Oppenheim on October 26, 2011 and the subsequent comments Mr. Oppenheim provided on January 19, 2012.   Continued indications are that EB-2 India and China would either remain unchanged or may even retrogress over the remaining months in this fiscal year.   Also, the slow movement across EB-3 especially EB-3 India continues, unfortunately.

We see continued forward movement in the FB-1 category which, for several months, had not changed.   This month’s forward movement is the seventh consecutive month with forward movement in the FB-1 category.   We continue to see the FB-2A category move forward at a nice pace as well.

EB-2 China and India Predictions

We can rely on Mr. Oppenheim’s January 19, 2012 comments regarding anticipated movements of the cutoff dates over the next few months.    Given stronger demand in EB-2 India/China visa numbers, Mr. Oppenheim has had to keep the April 2012 Visa Bulletin unchanged.   Indications are that Mr. Oppenheim is expected to hold the priority date over the summer, and then retrogress or advance, as needed and as determined by demand over the summer.    Mr. Oppenheim does not have enough data at this time to predict demand and priority date changes in the last quarter of FY2012.

Current Priority Date?

Our office stands ready to assist in the applicable process to take advantage of this significant movement in the cutoff dates across many of the categories, including applicants in EB-2 India and EB-2 China whose cutoff dates may retrogress over the next months.   Those applicants whose priority dates are current as of the April 2012 Visa Bulletin may be eligible to process their (and their family members’) I-485 Adjustment of Status applications from within the U.S. or process their immigrant visa at a U.S. Consulate abroad.   Please do not hesitate to contact us if our office can help you take advantage of this significant forward movement in the cutoff dates.    We are also happy to provide a free quote for preparing and filing your I-485 application.

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 April 2012 Visa Bulletin.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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AAO Processing Times (March 1, 2012)

Our office has established a reputation as one of the leading practices for handling appeals with the Administrative Appeals Office (AAO) and we often receive inquiries not only  about the procedural aspects of an AAO appeal but also about the current processing times for AAO cases.    The AAO processing times are published monthly, at the beginning of the month, and we are providing monthly updates and analysis for the benefit of our clients and readers.

About the AAO

The AAO is an appeals office which handles appeals of certain decisions made by USCIS field offices and regional processing 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 March 1, 2012.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

  • H-1B appeal takes 21 months (decrease, or improvement, of one month compared to our last report as of December 1, 2011);
  • L-1 appeal takes 22 months (no change);
  • I-140 EB-1 Extraordinary Ability takes 15 months (improvement of one month), Multinational Manager or Executive takes 21 months (no change) while EB-1 Outstanding Professor or Researcher category takes 13 months (increase, or delay, of three months);
  • I-140 EB-2 (Advanced Degree) takes 24 months (improvement by 8 months) while EB-2 (NIW) takes 8 months (improvement by two months); and
  • I-140 EB-3 Skilled Worker takes 35 months (no change) while EB-3 Other Worker is current (6 months or less) on appeal (no change).
Conclusion
The AAO processing times for at least some of the categories (EB-2, for example) have been improving notably over the past few months.   We notice that AAO processing times remain steady across many of the other types of cases.     We hope that the notable trend of improvement in the processing times in EB-2 appeals would continue and spread to other types of cases as well.

If our office can be of any assistance regarding AAO representation or consultation, please contact us.  Also, please feel free to subscribe to our free weekly newsletter to receive updates and immigration news.

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H-1B Cap for Fiscal Year 2013 Opens on April 1, 2012

The U.S. Citizenship and Immigration Service (USCIS) is set to begin accepting H-1B visa applications pursuant to its Fiscal Year 2013 (FY2013) quota.   The first day on which USCIS will accept new, cap-subject H-1B petitions, is Monday, April 2, 2012.

About the H-1B Program and the Annual Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2013 starting on October 1, 2012.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H-1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H-1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.

Timing of the Cap-subject H-1B Petition Filing

The earliest date on which cap-subject H-1B petitions to be counted under the FY2013 H-1B cap is April 1, 2012 (technically, this year it is April 2, 2012 because April 1 falls on Sunday).  By law, the earliest starting employment date for petitions approved under the FY2013 H-1B cap is October 1, 2012.  As a result of this up to 6-month window  between the time of filing and the time of employment, it becomes important to plan properly with respect to resources, valid status in the U.S. and work authorization.

Before an H-1B petition can be filed on or after April 1, there are a number of lead-time items.   Employers who have not submitted Labor Condition Applications (LCAs) with the Department of Labor’s iCERT system must have their Federal Employer Identification Number (FEIN) verified – a process which generally takes 2-4 business days.  Subsequently, an LCA must be filed for the offered position.  LCAs tend to be certified within 7 business days.   Only after the LCA is certified (with very minor exceptions) can an H-1B petition can be finalized and filed.  Accordingly, it becomes important to start the H-1B petition process as early as possible.  At a very minimum, an H-1B petition preparation can take at least two (2) and often at least three (3) weeks.

Cap-exempt Employers Can File H-1B at Any Time

Not all H-1B petitions must be filed under the H-1B annual cap.  Certain employers can file for H-1B workers at any time of the year and without being subject to the numerical H-1B visa limitations.  Such employers are generally qualified institutions of higher education (universities, colleges) and non-profit research organizations, or non-profits affiliated with institutions of higher education.   Note, not all non-profit organizations qualify; only those who are engaged in research may file for cap-exempt H-1B petitions.

Please see our helpful Guide to H-1B Cap Exempt Employers for more details.

Projections About This Year’s H-1B Cap

As discussed above, the H-1B cap “opens” on April 1, 2012 and will remain open for new H-1B filings until the 65,000 H-1B limit is reached.  While it is impossible to predict exactly when the FY2013 H-1B cap will be reached, it is helpful to provide some context.  For FY2009, filing made on or after April 1, 2008, caused the H-1B cap to be reached in eight (8) days.   For the FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009.  For FY2011, the H-1B cap was open between April 1, 2010 and January 25, 2011 and last year, FY2012, the H-1B cap was open between April 1, 2011 and November 22, 2011.

Due to the recovering economy, we do not expect that this year’s H-1B cap will be reached in eight days.  However, we do not anticipate that the H-1B cap will remain open until November of 2012.  Accordingly, to eliminate uncertainty, we recommend to our clients to aim for an early April H-1B filing.

Throughout the H-1B filing season, we provide weekly (or more often, if necessary) updates about the status of the H-1B cap and any related developments.  Please check back often or subscribe to our Weekly Newsletter to receive news and updates related to the H-1B filing season.

Conclusion

Because USCIS received more applications than there were visas available for fiscal years 2009, 2008, 2007 and 2006 within a few days of the cap opening, and for the 2012 fiscal year the cap was hit in November 2011 , we recommend that clients consider their needs as soon as possible and be prepared to file on the first available date – April 2, 2012.    Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.

Contact Us to Start Your H-1B Cap Case

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