Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for June, 2012

HR 3012 Developments – Sen. Grassley Proposed Increased H-1B Enforcement In Exchange of Removing Per-Country Green Card Limits

Our office closely monitors developments here in Washington, DC on the proposal to lift the per-country limitations on immigrant visas (green cards).    Throughout the past couple of weeks, there have been significant developments on this proposal and we wanted to update our clients and readers.

H.R. 3012 Background

H.R. 3012, the Fairness for High-Skilled Immigrants Act was introduced in September 22, 2011 by Rep. Chaffetz (R-UT) and its goal is to eliminate the employment-based per-country cap entirely by fiscal year 2015 and to raise the family-sponsored per-country cap from 7% to 15%.    If enacted into law, this Act would directly benefit the very high number of highly-skilled applicants for immigrant visa from countries such as India and allow them to obtain an approval much earlier (we are talking many years).

The current law places a limit so that immigrants from a country can obtain no more than 7% of the 140,000 employment-based immigrant visas (or green cards) issued annually.   That cap applies equally to all countries, regardless of the country’s population and creates an imbalance and backlogs for larger countries such as India and China.

Currently, with the per country caps, individuals from countries that produce a lot of high skilled immigrants, like India and China, have to wait much longer than similarly-skilled immigrants from the rest of the world.  There are just more engineers, for example, from India than Iceland.  When fiscal year 2013 begins on October 1, 2012, it is expected that Second Preference employment based immigrants for highly skilled workers with advanced degrees will have green cards available for those from India or China whose employers started the petitioning process 5 years ago (2007), whereas advanced degree workers from the rest of the world will have green card status current and available for cases started in 2012 (meaning that immigrants from some countries are waiting five times as long as other similarly situated workers).

As proposed, by removing the per-country caps, all employment-based green card holders will be selected so that individuals with similar skill sets will wait a similar period of time.    This will result some countries’ (India and China) nationals to wait significantly shorter period of time (1-2 years for EB-2, down from 5-7 years) while some other countries’ nationals (rest of the world) may need to wait longer (1-2 years, up from almost no wait now).

H.R. 3012 Was Blocked in the Senate by Senator Grassley in Late 2011

After H.R. 3012 passed the U.S. House of Representatives, it moved on to the U.S. Senate.   There, in late 2011, Senator Grassley (R-Iowa) placed a hold on the legislation, as passed by the House, citing concerns about misuse of the guest workers program and requiring certain protections for U.S. workers.   Under Senate rules, because of Senator Grassley’s “hold”, the legislative proposal and the momentum behind it stalled.

Senator Grassley Reportedly Close to a Deal — Increased H-1B Program Audits and Enforcement in Exchange of Removing Per-Country Limits

Over the past couple of weeks, it has been widely rumored that Senator Grassley has removed the hold on H.R. 3012.  This is not true.   Instead, Senator Grassley is reportedly close to a deal which would add extra level of audits and enforcement actions as part of the H-1B program in exchange of removing the per-country limits for immigrant visas.   As of right now, there is a draft proposal of Senator Grassley’s added H-1B enforcement requirements, but no action in Congress on them.   We will certainly provide updates as soon as they are available.

Senator Grassley’s H-1B Enforcement Amendments

It is worth analyzing what kind of H-1B program protections Senator Grassley seeks in exchange.     The text of the proposed amendment — in a barely-readable legalese — is here.   Simply put, Senator Grassley wants to add the following additional enforcement mechanisms to the H-1B program:

  1. LCA Review Expanded. The Grassley amendment adds a review process based on clear indicators of fraud or misrepresentation of a material fact, in addition to the current LCA review process (which focuses on completeness and obvious inaccuracies).  As of right now, it is not clear if the review for “clear indicators” is limited to the attestation elements under the statute (§212(n)(1)(A)-(D), wages, strike, benefits and notice) or what a “clear indicator” of fraud or misrepresentation may be.
  2. Investigation Triggers Expanded.   Currently, there are restrictions on when DOL can commence an investigation on an H-1B employer.   These restrictions are proposed to be removed by the Grassley amendment.
  3. Time Period for Investigations Expanded.    Investigations that are not complaint-driven through the process for private sector LCA complaints will no longer have to be completed within 60 days under the Grassley amendment. No time period is identified as the outer limit for when the government must complete its investigation.
  4. Added Compliance Surveys.   The Grassley amendment adds grant of authority to DOL to conduct a compliance survey of any employer who has hired an H-1B worker.
  5. Annual Compliance Audits.   The Grassley amendment also adds grant of authority to DOL to conduct annual audit of any H-1B employer.   Furthermore, such annual audits are mandatory for all H-1B dependent employers.

Conclusion

H.R. 3012 and the proposed changes, if enacted into law, would affect many employment-based immigration beneficiaries.    Not only certain green card processing times would change (decrease for some, increase for others), but also many (or all) H-1B employers would face additional scrutiny as a result of the Grassley amendments.    It is very important to stress that neither H.R. 3012 nor the Grassley amendments are law yet — they are simply a proposal which has to be voted, in identical form, by both the U.S. House of Representatives and the U.S. Senate, before being signed into law by the President.

We will continue to monitor developments on this legislation and provide updates.    Please do not hesitate to contact us if we can be of any assistance or answer any questions.  We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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FY2013 H-1B Work Visa Cap Reached as of June 11 — Alternatives to H-1B

Many of our readers are aware that as of June 11, 2012, USCIS has received a sufficient number of H-1B cap-subject petitions to fill the annual H-1B quota.  All cap-subject new H-1B petitions received by USCIS on or after June 12th will be rejected.   Throughout the entire H-1B cap season, our office was providing weekly updates to our readers and clients on the status of the H-1B cap and our predictions (based on analyzing the H-1B demand over time) that the H-1B cap would be reached by early June 2012 turned out to be fairly accurate.

Comparison of FY2012 and FY2013 H-1B Cap Seasons

This H-1B cap season lasted approximately two and a half months, or about five months less than last year’s H-1 cap season (which lasted until November 22nd).    This can be explained in a number of ways, most notably due to the gradual improvement in the U.S. economy and increase in the rate of hiring.  As we saw the rate of H-1B filings over the past few weeks of this H-1B cap season to increase, we expect that as the economy continues to improves over the next couple of quarters, the H-1B demand should pick up and we expect that the new H-1B cap season, to open on April 1, 2013, to be even busier than the last one.    Please see our charts comparing the last two H-1B cap seasons.

Alternatives to H-1B Cap Petitions

Now that the H-1B quota has been reached, we are receiving an increasing number of inquiries by both cap-subject employers and prospective employees about the alternatives for work authorization between now and October 1, 2013, when the new fiscal year’s H-1B quota would begin (as a reminder, April 1, 2013 is the earliest a cap-subject H-1B application can be filed).  We describe some of the most common H-1B visa alternatives.  Note that the list is not intended to exhaust all possible visa types and scenarios pursuant to which an employee may be legally employed.  Our goal is to list some of the common options for the benefit of our clients and readers.  We are happy to discuss individual cases as part of our FREE initial consultation.

Cap-Exempt H-1B

A number of employers may qualify to be cap-exempt and are allowed to file for H-1B petition at any time.   A cap-exempt employer is (1) an institution of higher education, (2) related or affiliated to a higher education institution nonprofit entity, or  (3) nonprofit research organization or a governmental research organization.  Please see our cap-exempt H-1B employer guide.   As a result, many educational institutions, non-profit and research organizations may qualify to file cap-exempt H-1Bs.   We are happy to help evaluate whether an employer can qualify to be cap-exempt.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B.   In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency.  Please contact us if you would like our help in evaluating your O-1 and/or P-1 visa case.

L-1 Intracompany Transferree

The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office).  This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad.   Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa.  An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.

E-1/E-2 Treaty Trader or Investor

The E-1/E-2 visas allow nationals of countries with which the U.S. has trade treaties to invest an amount in the U.S. and receive an E-1 (treaty trader) or E-2 (treaty investor) visa.  See a list of treaty countries.

The E-1 treaty trader visa is suitable if the foreign national has a multinational employer who is willing to transfer them, and the company has significant trade between the foreign country and the U.S.  The employee must also have skills which are essential to the operation of the company trade.   Dependents of E-1 visa holder are eligible for work in the U.S.

The E-2 treaty investor allows foreign nationals to invest (preferably) a substantial amount in the U.S. and obtain an E-2 visa to be able to manage and direct their investment.  The amount required for investment generally varies depending on the industry (the so called, proportionality test) with more capital-intensive industries requiring more significant investment for E-2 application.   Dependents of E-2 visa holders are eligible to apply for work authorization.

H-1B Program Changes by Congress Unlikely

While we do not expect Congress to raise the H-1B cap for FY2014, it is nonetheless possible.  There are a number of proposals currently circulating in Congress, some of which aim to increase the H-1B cap, especially after a very short H-1B cap filing season this year.  While none of these proposals have gained momentum at this time, we will be providing updates as soon as there is a likelihood that there will be development on this front.

Wait and File on April 1, 2013 for the FY2013 Cap

For some of our clients, waiting until April 1, 2013 to file a new cap-subject H-1B petition may be the best (or only?) option.  The H-1B visa type, although subject to some requirements, is a fairly common visa type for which many qualified employees are eligible.    As of now, the FY2014 H-1B cap is expected to be the same as it was for the FY2013 fiscal year – 65,000 H-1B visas (plus 20,000 for holders of U.S. master’s degrees).  However, as the economy starts to improve and employers increase hiring, we do expect that next year’s H-1B numbers will remain similar to this year’s and that next year’s H-1B cap should be used up fairly quickly.   Accordingly, we urge employees and employers to prepare and file most or all of their H-1B petitions on or about April 1, 2013, to ensure that their petition has the greatest chance to be included in the quota.  Please contact us to start preparing for your FY2014 H-1B cap filing.

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July 2012 Visa Bulletin – EB-2 ROW Cutoff Date of January 1, 2009 Introduced; EB-2 India and China Remain Unavailable

The U.S. State Department has just released the July 2012 Visa Bulletin which is the tenth Visa Bulletin for the FY2012 fiscal year.    The major headline in the upcoming month’s bulletin is the introduction of a cutoff date for the EB-2 ROW category and the continued unavailability in the EB-2 India and China categories (which is expected to continue for the next two months).

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

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

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines now have a cutoff date of January 1, 2009.    EB-2 India and EB-2 China remain unavailable.
  • EB-3 ROW and EB-3 Mexico move forward by six (6) weeks to July 22, 2006.  EB-3 Philippines moves forward by two (2) weeks to June 8, 2006, EB-3 China  moves forward by six (6) weeks to September 22, 2005, while EB-3 India  moves forward by only one (1) week to September 22, 2002.
  • The “other worker” category moves forward (finally!) by seven (7) weeks to June 15, 2003 for China.  It moves forward by six (6) weeks for ROW and Mexico to July 22, 2006, while Philippines moves forward by two (2) weeks to June 8, 2006.  It also moves forward by one (1) week for India to September 22, 2002.

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

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

  • FB-1 moves forward (again, for tenth consecutive month).  FB-1 ROW, China and India all move forward by two (2) weeks to July 8, 2005.   FB-1 Mexico moves forward by three (3) weeks to June 8, 1993 and FB-1 Philippines moves forward by two (2) weeks to July 15, 1997.
  • FB-2A moves forward by six (6) weeks to February 15, 2010 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by seven (7) weeks to February 1, 2010.
  • FB-2B ROW, China and India move forward by two (2) weeks to May 1, 2004.  FB-2B Mexico remains unchanged to January 1, 1992 and FB-2B Philippines moves forward by two (2) weeks to December 22, 2001.

Cutoff Date for EB-2 ROW Caused by High Demand In Filings

The introduction of a cutoff date for the EB-2 Rest of the World (ROW) category would come as a surprise to many.   The Department of State has given earlier indications and we have warned of the possibility of cutoff dates in the EB-2 ROW category.   The new cutoff date of January 1, 2009 for EB-2 ROW sets this category more than three years back.  This aggressive retrogression and the note provided in the July 2012 Visa Bulletin suggest that the demand of EB-2 visas has been greater and we should not anticipate any relief in this category for the remainder of the fiscal year (until October 1st).   In fact, the Department of State has warned that they may even need to make the EB-2 ROW category unavailable for one or both of the remaining Visa Bulletins for this fiscal year.

EB-2 India and China Remains Unavailable;  Will Remain for the Remainder of the Fiscal Year

The EB-2 India and China categories remain unavailable for second consecutive Visa Bulletin.   No change is expected for the rest of the fiscal year.

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 July 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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FY2013 H-1B Numbers Update – 55,600 Regular and 18,700 Masters Cap Visas Used; Reaching H-1B Cap Imminent (June 1, 2012)

The H-1B season may be just starting its third month today, but we see that the H-1B is about to be reached for this year in a 7-10 days.   As of June 1, 2012, USCIS has received approximately 55,600 H-1B petitions counting toward the 65,000 cap, an increase of 10,200 for the past reported week (which had only four “filing” days due to the Memorial Day holiday).   This suggests an increased rate of filings of approximately 10,000-13,000 regular cap cases per week.   Similarly, as of June 1, there were approximately 18,200 H-1B visas filed subject to the U.S. Masters cap (which has 20,000 limit), an increase of 1,200 for the past reported (four-day) week.   This suggests a rate of filings of approximately 1,200-1,500 master’s cap cases per week.

H-1B Cap Update

This report suggests a substantially increased rate of filings of about 10,000-13,000 per week in the regular cap and 1,500 per week in the U.S. master’s cap.   We expect that an increasing rate of weekly filings will continue for the next week or so, until the H-1B cap closes.

Comparison to the Last H-1B Season (FY2012)

Our office keeps detailed statistics of the previous H-1B filing seasons, and we are able to make comparisons with prior H-1B years in an effort to estimate demand and when the H-1B caps may be reached.  Considering the estimated rates of filings for the regular and master’s caps, all indications are that the cap would remain open for a few (but not more than 7-10) more days.  Please note that historically, the rate of H-1B filings increases towards the end of the H-1B cap.

H-1B Cap Comparison

Based on this information, and anticipating a continued notable increase in the rate of filings, we anticipate that this year’s H-1B season would extend for another 7-10 days, at most.

H-1B Cap to be Reached Within 7-10 Days – Too Late to Start New H-1Bs

It should be noted that the current (and increasing) weekly rate of filings (as discussed above, about 10,000-13,000 for the regular and up to 1,500 per week for the master’s cap) is likely to continue to increase dramatically until the H-1B cap is reached.   Another consideration is that it takes at least 2-3 weeks to prepare and file an H-1B case (including the FEIN employer verification, if necessary, the LCA and the preparation and filing of the H-1B documents).    As a result, at this point, it may be too late to start new H-1B cap cases under this year’s cap.

Contact Us to Discuss Your Options

As discussed above, it may be already too late if you are considering filing a cap-subject H-1B petition as part of the FY2013 quota.  However, please consider contacting us as soon as possible so that we can help you evaluate your options.   We also invite our clients and readers to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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