Labor Immigration Law

United States Labor Immigration Law News and Analysis

Archive for March, 2013

Anticipated H-1B Filing Season: April 1st to April 5th (Five Days); H-1B Lottery Likely; Last Call for H-1B Cap Filings

As we are going in to the peak of the H-1B cap season, our office receives many inquiries about the duration of the H-1B filing season this year or, in other words, when will the H-1B cap be reached?      So far we have been able to compare demand with prior H-1B filing seasons and we knew that this would be a busy and very short H-1B filing season.  Now we have indication from USCIS that they are also bracing for a very busy but also a very short H-1B cap filing season.   According to USCIS, they expect that the H-1B cap be reached in the first five days of April with the number of filings over the first five days exceeding the available number of H-1B visas which means that there will very likely be a random lottery to allocate the  available H-1B visas among all filings received in the first five days of April.

High H-1B Cap Demand Expected:   Last Call for Starting H-1B Cases

The expected heavy demand in this H-1B filing season means that all H-1B petitions should be submitted on or very shortly after April 1st.    It should be noted that it takes at least 10-14 days to prepare and file an H-1B petition (due to the LCA filing requirement, which takes up to 7 business days).   As a result, any new H-1B cases should be initiated over the next 2-3 days, at the most,  in order to have a decent chance of being accepted under the H-1B cap before it is reached, as anticipated, on April 5th.

H-1B Applications Filed Over the First Five Days in April Will Be Subject to Random Lottery

Assuming the H-1B cap is reached by April 5th, all H-1B filings which are received over the first five days in April will be subject to  a random lottery to determine which of these H-1B applications would be counted and included under the cap.   This means that, as of now, we expect all H-1B cap cases filed over the first five days in April to be subject to the random lottery.   The last time a lottery was used to allocate H-1B numbers over the first five days of the H-1B filing season was in April 2008.

H-1B Filings Not Picked by the Lottery or Filed Afterwards Are Rejected and Returned

H-1B cases filed over the first five days in April but not picked by the random lottery or H-1B cases filed after April 5th (again, assuming there are more filings over the first five days than there are available H-1B visas) are processed by USCIS to be returned to the filing petitioner employer (or their attorney) with an explanation that the H-1B cap has been reached and that there are no longer H-1B visas under this year’s cap.

Premium Processing Clock for New H-1B Cases to Start April 15, 2013

In connection with the high level of H-1B filings, USCIS has also announced that they are altering the way they would process premium processing H-1B cases under the H-1B cap.    Under current practice, the 15-day premium processing “clock” starts on the day a case is received by USCIS.      For cases filed under the H-1B cap, in order to facilitate the prioritized data entry of cap-subject petitions requesting premium processing,  USCIS has annonced that premium processing for cap-subject H-1B petitions, including H-1B petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master’s degree or higher, will begin on April 15, 2013.   This means that even for cases filed on April 1, 2013, the premium processing 15-day response window would not start until April 15.      Premium processing H-1B petitions filed outside of the H-1B cap (such as extensions or transfers) would not be affected.

Conclusion

We have been writing over the past few weeks about the possibly very short H-1B cap filing season this year.   Given the time it takes to prepare and file an H-1B cap case,  this is the last call for starting an H-1B case with a chance of filing under the H-1B cap.

W will be providing updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  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 immediately.

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Reminder: H-1B Work Visa Quota Opens for New Filings on April 1; Last Call for New Filings

One of the most popular U.S. work visas, the H-1B, will start accepting filings for new H-1B employment on April 1.     Pursuant to each yearly H-1B quota, new H-1B filings can be filed on April 1, 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 (FY2014) starting on October 1, 2013.

As discussed above, the H-1B cap “opens” on April 1, 2013 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 FY2014 H-1B cap will be reached, it is helpful to provide some context.  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. For FY2012, the H-1B cap was open between April 1, 2011 and November 22, 2011 while last year, FY2013, the H-1B cap was open between April 2, 2012 and June 11, 2012, or for just over two months.

Given the improving economic outlook, it is our expectation that the H-1B cap will be reached very quickly after it opens on April 1st.   While it is impossible to predict how quickly the cap will be reached, the H-1B cap  may be open for as little as 5 days.

High H-1B Cap Demand Expected:   Last Call for Starting H-1B Cases

The expected heavy demand in this H-1B filing season means that all H-1B petitions should be submitted on or very shortly after April 1st.    It should be noted that it takes at least 10-14 days to prepare and file an H-1B petition (due to the LCA filing requirement, which takes up to 7 business days).   As a result, any new H-1B cases should be initiated over the next few days in order to have a decent chance of being accepted under the H-1B cap before it is reached.

Conclusion

We do not know yet how quickly would this year’s H-1B cap be reached.   But we do know that the demand this year is significant and we are preparing (and advising our clients accordingly) for a very short H-1B filing season and the possibility that the H-1B cap be reached in the first 5-10 days of April.

Assuming the H-1B cap remains open for longer,  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 as soon as possible.

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April 2013 Visa Bulletin – EB-2 India Remains Unchanged at September 1, 2004

The U.S. State Department has just released the April 2013 Visa Bulletin which is the seventh Visa Bulletin for the FY2013 fiscal year.   The major headline in the upcoming month’s Visa Bulletin is the lack of movement (again) in EB-2 India.   Many have been looking forward to this Visa Bulletin in order to gauge the anticipated rate of the forward movement in EB-2 India over the next months; unfortunately, it seems that EB-2 India may continue to face a very slow (if any) forward movement over the next months.  There is continued notable forward movement in EB-3 China of almost two months.

Summary of the April 2013 Visa Bulletin – Employment-Based (EB)

Below is a summary of the April 2013 Visa Bulletin with respect to employment-based petitions:

  • EB-1 remains current across the board.
  • EB-2 for ROW, Mexico and Philippines are all current.    EB-2 India remains unchanged, again, at (the severely retrogressed) September 1, 2004.   EB-2 China moves forward by six (6) weeks to April 1, 2008.
  • EB-3 ROW and EB-3 Mexico move forward by two (2) months to July 1, 2007.  EB-3 Philippines moves forward by only one (1) week to September 8, 2006, EB-3 China  moves forward by three (3)  months to April 22, 2007, while EB-3 India  moves forward by only two (2) weeks to December 8, 2002.
  • The “other worker” category moves forward by twp (2) months for ROW and Mexico to July 1, 2007.  It moves forward by one (1) week to September 8, 2006 for Philippines and moves forward (after months without change) by seven (7) weeks at August 21, 2003 for China.  It moves forward by two (2) weeks for India to December 8, 2002.

Summary of the April 2013 Visa Bulletin – Family-Based (FB)

Below is a summary of the April 2013 Visa Bulletin with respect to family-based petitions:

  • FB-1 continues to move forward.  FB-1 ROW, China and India all move forward by three (3) weeks to March 8, 2006.   FB-1 Mexico moves forward by only one (1) week to August 1, 1993 and FB-1 Philippines moves forward by four (4) months to February 15, 1999.
  • FB-2A moves forward by three (3) weeks to December 15, 2010 for ROW, China, India, and Philippines.  FB-2A Mexico moves forward by two (2) weeks to December 1, 2010.
  • FB-2B ROW, China and India all move forward by five (5) weeks to April 8, 2005.  FB-2B Mexico moves forward by five (5) weeks to February 22, 1993 while FB-2B Philippines moves forward by five (5) weeks to July 15, 2002.

Again: No Progress in EB-2 India – Confirms Our Expectations for a Very Slow Forward Movement in the Future?

Yes, we realize we are repeating what we have been reporting over the past several months, but again this month the EB-2 India cutoff dates remain unchanged.     We are well into the second half of the fiscal year, and the continued lack of any movement in EB-2 India this month is a strong indication that there is simply too high of a demand in the EB-2 India category and that the Department of State would move the cutoff dates forward very slowly in order to allow USCIS to approve the (high) number of EB-2 cases filed and pending.

The movements (or the lack thereof) reflected in the April 2013 Visa Bulletin confirm the predictions and the comments made by Mr. Charles Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State we shared last week.   The lack of movement in EB-2 India confirms Mr. Oppenheim’s comments that EB-2 India is not expected to move over the next months; in fact, a retrogression is possible in this category.

Visa Bulletin Predictions – Employment-Based

We would like to share recent comments by Mr. Oppenheim on the expectations for movement of visa numbers over the next few months.   Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.

EB-1.   This category is expected to remain current throughout the fiscal year.

EB-2 Rest of World (ROW).  This category is expected to remain current throughout the fiscal year; however, Mr. Oppenheim suggested that depending on demand he may introduce a cutoff date towards the end of the fiscal year, not unlike what happened during the summer of 2012.

EB-2 India. No forward movement expected; possible retrogression.

EB-2 China.   Three-to-six weeks per month.

EB-3 Rest of World (ROW).    Four-to-six weeks per month.

EB-3 China.  Two-to-three months per month.

EB-3 India.  Up to two weeks per month.

EB-3 Mexico.  Four-to-six weeks per month.

EB-3 Philippines.   Up to one week per month.

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 2013 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, 2013)

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 ofMarch  1, 2013.  Read the full AAO Processing Times report.

Among the most notable AAO processing times:

  • H-1B appeal is “current” (6  months or less) (no change from our last report as of February 1, 2013);
  • L-1 is current (no change);
  • I-140 EB-1 Extraordinary Ability is current (no change), Multinational Manager or Executive is also current (improvement with 3+ months since last month) and EB-1 Outstanding Professor or Researcher category is current (no change);
  • I-140 EB-2 (Advanced Degree) is current (no change) and EB-2 (NIW) is current (no change); and
  • I-140 EB-3 Skilled Worker takes 12 months (improvement of two months) while EB-3 Other Worker is current on appeal (no change).
Conclusion

The AAO processing times for many of the (H-1B, EB-2, for example) have been improving notably over the past few months and our office has witnesses these greatly improved processing times.   We are very pleased to see that the AAO is now processing I-140 EB-2 cases in as little as six months and EB-3 cases in as little as 12 months (in comparison to close to three years recently).   We notice that AAO processing times improve  across many of the other types of cases.     Now that most AAO cases are “current”, we hope that AAO will be able to keep these processing times consistently going forward.

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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