Labor Immigration Law

Throughout the H-1B cap filing season (which opened back in April), we have been providing updates on the available H-1B cap numbers.   Over the past few weeks, we have been also issuing alerts (on our website, via our newsletter and through our twitter and facebook pages) on the upcoming H-1B cap limit.

Partially as a result of our outreach on the upcoming H-1B cap limit, we have been getting many questions on what happens when the H-1B cap is reached?  How does USCIS handle applications which are received on or after the date the H-1B cap is reached?

H-1B Applications Filed on the Day the H-1B Cap is Reached Are Subject to Random Lottery

H-1B filings which are received on the day the H-1B cap is reached are counted and, assuming the number of filed applications exceeds the remaining number of H-1B visas, USCIS conducts a random lottery to determine which of these H-1B applications would be counted and included under the cap.   Those H-1B applications which are filed on the last day but are not selected on the lottery for that last H-1B day are returned to the petitioners.

For example, if on the last day of the H-1B quota there are 700 available H-1B visas, but USCIS, on that day, receives 1,000 H-1B filings, there will be a random lottery among these 1,000 H-1B filings to determine 700 cases which will be accepted for processing under the cap.   The 300 H-1B filings not selected in this last-day lottery will be returned.

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

H-1B cases filed on the last day of the H-1B cap but not picked by the last-day lottery (if there is one), or, H-1B cases filed after the last day 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.

Conclusion

Considering the increasing volume of H-1B filings and given our recent reports on the status of the FY2012 H-1B cap, we believe that the H-1B cap will be reached by the end of November 2011.    We will continue providing updates on the H-1B cap and, once it is reached, on possible alternatives.   If you need our help and services, please contact us at your earliest convenience

USCIS just released the information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As of October 28, 2011, USCIS has received approximately 49,200 H-1B petitions counting toward the 65,000 cap (an increase of 3,000 over the previous week).  Similarly, as of October 28, there were 20,000 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit.

H-1B Quota Trends – Rate of Regular Cap H-1B Filings Increases; H-1B Masters Cap Reached

The numbers, as just reported for the past week, confirm that the rate of filing of new cap-subject H-1B filings is increasing slightly.  Now that the H-1B U.S. Master’s cap has been reached, all H-1B filings (regardless of level of education) will be counted under the regular H-1B cap.   As a result, we expect the average weekly rate of filings to be around 3,000-3,500, compared to 1,000-1,500 previously.     Additionally, we often see a rush of filings towards the end of the cap season as employers realize that the cap is about to close, so we anticipate the rate of filings to increase over the next few weeks.

H-1B Cap Likely to Close in Mid- to Late December 2011 — Last Call for Cap-Subject H-1B Filings

Given an estimated rate of H-1B filings of 3,500 for the next few weeks, and given that there are approximately 15,000 H-1B visa numbers left towards meeting the annual cap, it is likely that the H-1B cap for FY2012 will be reached towards the end of the year — likely in mid- to late December 2011.

Considering the fact that an H-1B petition takes at a minimum 7 to 10 business days to file, we urge all employers and future H-1B workers to start the H-1B filing process as soon as possible.    If you are considering filing a cap-subject H-1B petition as part of the FY2012 quota, please contact us.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

Our office handles a substantial number of H-1B work visa petitions for a variety of U.S. employers and we often share our direct experiences with the H-1B work visa program.   This article is intended to share our experience with H-1B work visa petitions where there is a change of the job location once the H-1B work visa petition has been approved and during its validity.

The Problem – H-1B Workers Changing Job Locations

Many consulting companies who hire H-1B holders place their workers at third-party client sites.   It is very common for these H-1B workers to change projects, end clients or simply to relocate to a different client site during their H-1B validity period.   In such cases, the question arises, What should be done to ensure that the H-1B employer and employee remain in compliance with the relevant H-1B regulations?

There is fair amount of confusion among H-1B employers and workers with respect to their obligations when there is a change in the work location.   Below we discuss what has been currently the recommended approach and also what USCIS has recently announced.

Currently:  Change in H-1B Job Location Requires a New LCA

Pursuant to previous USCIS guidance, our office often advises that when there is a change in the job location, but all of the other terms of an H-1B petition remain valid — title, duties, salary — then all the petitioning employer must do is file a new LCA for the new job location(s) and ensure that the proper posting and compliance for each new LCA has been done.

This approach is supported by the Adjudicator’s Field Manual 31.2(e) which states that “[t]he mere transfer of the beneficiary to another work site, in the same occupation, does not require the filing of an amended petition provided the initial petitioner remains the alien’s employer and, provided further, the supporting labor condition application remains valid.”

The relevant regulations, in 8 CFR 214.2 specify that  “[t]he petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition.”   (emphasis added).   As a result, the question becomes what is “material change.”   In light of previous guidance, a change in location only was not considered a material change.

Possible Changes in Interpretation in “Material Change” – California Service Center and Upcoming USCIS Guidance

In recent discussions with the California Service Center, some of which is prompted by a number of “Notice of Intent to Revoke” notices, it becomes apparent that the California Service Center is starting to consider a change in the job location a “material change” and, as a result, requiring an H-1B amendment to be filed.   According to the California Service Center, as of August 10, 2011, “it is the position of [California Service Center] Counsel that an amended H-1B petition should be filed if an LCA is filed after approval of an H-1B petition.”

It is worth noting that no such guidance has been issued by the other service center processing H-1B petitions – the Vermont Service Center.   As a result, an apparent conflict arises between both Service Centers — because the Vermont Service Center has not provided any guidance on the issue, it may be inferred that H-1B petitions filed with the Vermont Service Center do not require amendment when there is change in the job location.

Conclusion

We are aware that USCIS is working on official guidance on this topic which would, hopefully, provide clear guidance applicable to both service centers.  Unfortunately, there is no known or anticipated release date.   In the meantime, in abundance of caution, we are starting to recommend that H-1B amendment petitions be filed when there is a change of job location, at a minimum, for petitions with the California Service Center, but also for petitions filed with the Vermont Service Center.   If you are not sure whether a petition has been filed with the Vermont or California Service Centers, please see this guide to service centers and receipt numbers.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.

In a September 2011 audit report on the use of Social Security Numbers (SSNs) by H-1B temporary workers, the Office of Inspector General (OIC) claims that a substantial percentage of H-1B cases may involve some amount of irregularity or fraud.   OIG based its review on a random sample of 200 H-1B cases from the 38,546 H-1B workers to whom the Social Security Administration (SSA) had issued SSNs in 2007.   The review period includes SSA reports for the period between 2007 and 2009.

Report Results and Recommendations

According to the audit report, an estimated 18% of H-1B workers analyzed in the relevant sample may have used their SSN for a purpose other than to work for the H-1B sponsor employer.   This includes 11% of H-1B workers who had posted wages from another an employer other than their H-1B sponsor employer.   This also includes 7% H-1B workers who had no posted wages from 2007 through 2009.

While we think that the audit is based on a very small sample (of 200) and while we believe (and the report acknowledges) that there may be some absolutely legitimate explanation for what the reports counts as unlawful employment, the numbers of possible irregularities is very high.   For example, the report acknowledges that some H-1B employees may be paid their H-1B wages abroad, or that some employees may have transferred their H-1B petition to a new employer (for example, by porting H-1B under AC21 and working upon filing of the H-1B paperwork, and not upon approval) which may not have been reflected in the data used in the audit report.

Conclusion

Notwithstanding these possible explanations for the high number of irregularities, the OIG makes the recommendation that DHS and SSA establish a data-matching protocol for identifying H-1B workers who are working for employers other than the H-1B sponsor employer or who are not working at all.    It is possible that, after such protocol is established, DHS would take a more proactive role in identifying and revoking H-1B petitions for workers who are not employed by the respective H-1B employer or to seek to identify H-1B workers who are in violation of their H-1B status by working for another (and non-H-1B sponsor) employer.

The OIG report highlights the need of proper H-1B compliance for both H-1B employers and employees.   Our office routinely advises H-1B employers on proper H-1B and I-9 compliance and H-1B employees on proper steps to maintain valid status — please do not hesitate to contact us if we can be of any assistance or if you have any questions or comments.

One of the most popular U.S. work visas, the H-1B, will start accepting filings for new H-1B employment on April 1, in exactly one week.     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 (FY2012) starting on October 1, 2011.

As discussed above, the H-1B cap “opens” on April 1, 2011 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 FY2012 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 and for last year, FY2011, the H-1B cap was open between April 1, 2010 and January 25, 2011.

Conclusion

As a result, and due to the slow economic recovery, while we expect a robust H-1B filing season this spring, we anticipate that H-1B visa demand would be similar to last year when the H-1B cap was open for eight months.   Throughout the H-1B season, and as early as mid-April, we will 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.

In early January we wrote about a USCIS proposal to create a pre-registration system for new H-1B cap cases in order to make the H-1B cap application process more efficient and to eliminate waste associated with H-1B cap petitions which are filed on or shortly after April 1st (when the H-1B cap filing window opens) but are not ultimately selected because the demand of H-1B cap petitions exceeds the available 65,000 (plus 20,000 for U.S. Masters degree holders) H-1B visas.

Proposed Rule Published Today, March 3, With a 60-day Comment Period

Today USCIS published a proposed rule which describes the pre-registration process in more details and establishes the procedures for pre-registration, selection and actual H-1B petition filing.   The rule has a 60-day comment period during which the public can provide comments to USCIS with respect to the new regulations.  Our office plans to do so as there are some provisions which substantially alter the process to our clients’ disadvantage.

The Proposed H-1B Pre-Registration System

The proposed rule would require employers who wish to file for a cap-subject H-1B petition to submit a simple electronic registration for each H-1B case the employer wants to file.  The electronic submission would open in early March and for each H-1B petition would require (1) the employer’s name, employer identification number (FEIN), and employer’s mailing address; (2) the authorized representative’s name, job title, and contact information (telephone number and email address); and (3) the beneficiary’s full name, date of birth, country of birth, country of citizenship, gender and passport number.

Once USCIS receives a number of pre-registrations over a certain period of time, they would evaluate the H-1B visa demand and if the demand exceeds the available 65,000 plus 20,000 visa numbers, they would run a random lottery to determine which of the pre-registrations would be allowed to submit a full H-1B petition.  Those selected would be notified electronically and would be allowed to print a selection confirmation page which would then be included with the H-1B petition.

Upon selection in the H-1B cap, an employer would have 60 days from the date of notification to submit the actual full H-1B petition for the beneficiary named, including the applicable Labor Condition Application (LCA).  H-1B petitions which are selected but are filed after the 60-day filing deadline would be rejected.

If the demand is lower than the available H-1B visas, the pre-registration system would continue to accept new pre-registration submissions until the H-1B cap is reached.   USCIS contemplates creating a waitlist system to handle pre-registrations which are not selected initially, but may be selected at a later time should the number of allocated H-1B pre-registrations exceeds the actual H-1B petitions filed and accepted for processing.

USCIS’s Rationale of H-1B Cap Filing Pre-Registration

The new proposed 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 proposed rule is estimated to reduce costs for H-1B employers, or at least eliminate waste associated with filing of H-1B petitions which may be subsequently rejected due to reaching of the H-1B cap.    USCIS is also estimated to realize cost-savings from this process.

Important Note: Published Rule is Not Final; This Year’s H-1B Cap Filing Season Is Not Affected

It is very important to stress that this is only a proposed rule which is subject to a 60-day comment period and further USCIS revisions.   This year’s H-1B cap season is not affected by this rule and it would continue under the current system where all H-1B cap filings are filed in their entirety on or after April 1st, without any pre-registration requirements.

This is an important development in the H-1B cap filing season and we will continue monitoring the proposed rule throughout and after the 60-day comment period.   Please feel free to subscribe to our weekly newsletter to obtain timely updates on this and related issues.  Also,  feel free to contact us with any questions, comments or if our office can be of help.

In late January 2011, U.S. Citizenship and Immigration Services (USCIS) announced that they would begin testing their new Validation Instrument for Business Enterprises (VIBE) tool.

About VIBE

VIBE is a tool designed to enhance USCIS’s adjudications of certain employment-based immigrant and non-immigrant petitions such as I-140 and I-129.  VIBE uses commercially available data to validate basic information about companies or organizations petitioning to employ alien workers.

The need for VIBE (or a similar tool) is apparent.  Currently, when adjudicating employment-based petitions, USCIS primarily relies on paper documentation supplied by the petitioning company or organization to establish the petitioner’s eligibility for the requested classification. Petitioners often (rightly) submit large amounts of paperwork as evidence of their current level of business operations.  When petitioners’ paperwork does not sufficiently document the evidence required under the law, USCIS issues a Request for Evidence (RFE) for additional documentation, delaying final adjudication of the petition.

With VIBE, USCIS would be able to obtain electronically commercially-available information from an independent provider (Dun & Bradstreet) about a petitioning company or organization.  Among the pieces of information which would be available through VIBE are:

• Business activities, such as type of business (North American Industry Classification System
  code), trade payment information and status (active or inactive).
• Financial standing, including sales volume and credit standing.
• Number of employees, including onsite and globally.
• Relationships with other entities, including foreign affiliates.
• Status, for example whether it is a single entity, branch, subsidiary or headquarters.
• Ownership and legal status, such as LLC, partnership or corporation.
• Company executives.
• Date of establishment as a business entity.
• Current physical address.

USCIS Would Use VIBE To Verify and Test Petitioner’s Information

As part of the adjudication process, VIBE would not only be used to verify the information submitted by the petitioning employer but also to obtain key pieces of information which may not be provided.  For example, if a petitioner is seeking L-1 status for a beneficiary, VIBE will help the adjudicating officer confirm that the petitioner has a foreign affiliate, which is a requirement for granting L-1 status.  In cases where petitioners must establish ability to pay (e.g. certain I-140 petitions), information from VIBE will assist in confirming the petitioners’ financial viability.

USCIS has indicated that they would not deny a petition based on information obtained from VIBE without first giving the petitioning employer the opportunity to explain or clarify the information via RFE or a Notice of Intent to Deny (NOID).

Petitions Included in VIBE

As of this time, the following petition types are subject to VIBE confirmation:

• Immigrant: E12 (EB-1 OR), E13 (EB-1 MM), E21 (EB-2), E31 and E32 (EB-3), EW-3 (Other Workers) — all filed on I-140 and SD1 and SR1  — filed on I-360.
• Non-immigrant: E-1, E-2, E-3, H-1B, H-2A, H-2B, H-3, L-1A/B, Blanket L, Q-1, R-1 and TN.

Petitions explicitly excluded from VIBE at this time are E11 (EB-1 EA), E21 (EB-2 NIW), EB-5, O and P.

Conclusion

While USCIS has always maintained the position that they are free to and do indeed check public records (which may include simple web searches or maps) to verify the information on a petition, the formal use of the VIBE tool would add another avenue for USCIS to test the information and, possibly, find more reasons to issue RFE or NOID notices.   Small companies, for which the Dun & Bradstreet data may not be of such high quality or accuracy are likely to suffer the most because the chance of discrepancy between information, as submitted at the time a petition is filed, and the information contained in the Dun & Bradstreet database is higher.

Employers may wish to register with Dun & Bradstreet which allows an opportunity to update key company information.  This is especially true for employers who suffer a disproportionate number of RFE or NOID notices.   Please feel free to contact us for further help or information.