Labor Immigration Law

United States Labor Immigration Law News and Analysis

Employers Articles

H.R. 3012 Update: Sen. Grassley Removes Hold on H.R. 3012; Bill Continues in Senate

We have been monitoring developments around the H.R. 3012 legislation aimed at removing the per-country annual limits for the immigrant visa categories.    We have written extensively in the past and many of our clients and readers are very interested in any developments with H.R. 3012 because of its wide (and significant) impact on employment-based immigrant visa applicants.

Senator Grassley Removes Hold on H.R. 3012  – July 11, 2012

Many of our readers would remember that Senator Grassley placed a hold on H.R. 3012 because of his concerns with the H-1B program and possible abuses.   We wrote on June 28, 2012 of Senator Grassley’s proposal that in exchange of his lifting his hold on the bill, the bill would be amended to include significant H-1B audit and enforcement mechanisms.

Subsequently, Senators Grassley and Schummer have reached an agreement and on July 11, 2012, Senator Grassley removed his hold from H.R. 3012.   Here is his statement, as added into the Congressional Record on July 11th:

Mr. GRASSLEY. Mr. President, today I lift my hold on H.R. 3012, the Fairness for High-Skilled Immigrants Act. This bill would eliminate the per-country numerical limitations for employment based immigrants and change the per-country numerical limitations for family-based immigrants. When I placed a hold on the bill, I was concerned that the bill did nothing to better protect Americans at home who seek high-skilled jobs during this time of record unemployment. Today , I lift my hold because I have reached an agreement with the senior Senator from New York, the chairman of the Senate Judiciary Subcommittee on Immigration, Refugees and Border Security.

I have spent a lot of time and effort into rooting out fraud and abuse in our visa programs, specifically the H-1B visa program. I have always said this program can and should serve as a benefit to our country, our economy and our U.S. employers. However, it is clear that it is not working as intended, and the program is having a detrimental effect on American workers.

For many years, Senator Durbin and I have worked on legislation to close the loopholes in the H-1B visa program. Our legislation would ensure that American workers are afforded the first chance to obtain the available high paying and high skilled jobs in the United States. It would make sure visa holders know their rights. It would strengthen the wage requirements, ridding the incentives for companies to hire cheap, foreign labor.

While I could not get everything that was included in the Durbin-Grassley visa reform bill, there is agreement to include in H.R. 3012 provisions that give greater authority to program overseers to investigate visa fraud and abuse. Specifically, there will be language authorizing the Department of Labor to better review labor condition applications and investigate fraud and misrepresentation by employers. There is also agreement to include a provision allowing the Federal Government to do annual compliance audits of employers who bring in foreign workers through the H-1B visa program.

I appreciate the willingness of other members to work with me to include measures that will help us combat visa fraud, and ultimately protect more American workers. I look forward to working with others as H.R. 3012 progresses in the Senate.

See the PDF version provided by the Government Printing Office.

Plenty of Work Still Ahead for H.R. 3012

Sen. Grassley’s hold removal is a significant step towards H.R. 3012 becoming a law.   However, many steps (and time) remain before the bill would actually become a law.   First, the bill must continue to make its way through the U.S. Senate where it must pass.   Afterwards, the bill must be taken by the U.S. House of Representatives and must be reconciled with the version of H.R. 3012 which was earlier passed by the House in a different form.

A quick reminder on how Congress passes laws:  a bill must pass both the Senate and the House in identical form and must be then signed by the President to become a law.

Only after the House votes on the bill, in identical form to the text which was approved by the Senate, would then President Obama have a chance to sign it into law.

Conclusion

In an election year, as the politics heat up, we simply do not know what other roadblocks the bill may face in the Senate or later, after it gets to the House.    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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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 Numbers Update – 36,700 Regular and 14,800 Masters Cap Visas Used (May 11, 2012)

The H-1B season is well underway and we have received the sixth update on the FY2013  cap-subject H-1Bs filed since April 2 for both the Vermont and California Service Centers.   As of May 11, 2012, USCIS has received approximately 36,700 H-1B petitions counting toward the 65,000 cap.   This suggests a rate of filings of approximately 4,000 regular cap cases per week.   Similarly, as of May 11, there were approximately 14,800 H-1B visas filed subject to the U.S. Masters cap (which has 20,000 limit).   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 relatively steady rate of filings of about 3,000-4,000 per week in the regular cap and 1,200-1,500 per week in the U.S. master’s cap.   We expect that a similar rate of weekly filings will continue for a few more weeks.

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 more weeks.  Please note that historically, the rate of H-1B filings increases towards the end of the H-1B cap.

H-1B Cap Comparison

Last year, during the FY2012 H-1B filing season, by May 11th, there were 11,200 regular cap H-1B petitions filed.   Last year’s May 11th count of Master’s H-1B cap filing was 7,900.   This year’s 36,700 and 14,800 filings for the regular and master’s caps, respectively, for the first six weeks of the H-1B filing season suggests that there is a very significant increase in the number of H-1Bs filed early in the H-1B season.   Based on this information, and assuming there is no significant  increase in the rate of filings, we anticipate that this year’s H-1B season would extend for another few weeks.

H-1B Quota Trends and Predictions

Throughout every H-1B cap filing season, we provide timely updates on the H-1B numbers and we draw predictions and conclusions based on the numbers and our experience.  More than halfway through the H-1B cap season, we believe that the H-1B cap will remain open for only a few more weeks.

H-1B Cap to be Reached Within Few Weeks – Prepare and File H-1B Cases As Soon As Possible

It should be noted that the current weekly rate of filings (about 4,000 for the regular and up to 1,500 per week for the master’s cap) is likely to increase dramatically once the H-1B cap is about to be 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, we strongly recommend employers and employees who are considering filing under the H-1B cap this year to start the process as soon as possible to avoid being left out of this year’s H-1B cap.

Contact Us to Start Your H-1B Case

If you are considering filing a cap-subject H-1B petition as part of the FY2013 quota, please contact us as soon as possible — it is never too early to file a cap-subject H-1B petition.  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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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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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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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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FY2012 H-1B Cap Limit Approaching — What Happens When the Cap is Reached?

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

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FY2012 H-1B Numbers Update – 56,300 Regular Cap Visas Used; Master’s Cap Reached; Last Call for H-1B Cap Cases (November 14, 2011)

USCIS just released the information on the numbers of cap-subject FY2012 H-1Bs filed since April 1.   As November 14, 2011, USCIS has received approximately 56,300 H-1B petitions counting toward the 65,000 cap (an increase of 7,100 over the previous two weeks).  Similarly, as of November 14, 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 Significantly; 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 significantly.  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 3,500, 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 by Late November or Early December 2011 — Last Call for Cap-Subject H-1B Filings

Given an estimated rate of H-1B filings of 3,500 per week for the next few weeks, and given that there are approximately 9,000 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 by the end of November or early 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.

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FY2012 H-1B Numbers Update – 49,200 Regular Cap Visas Used; Master’s Cap Reached; Last Call for H-1B Cap Cases (October 28, 2011)

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.

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Does Change in H-1B Work Location Require an H-1B Amendment, in Addition to a New LCA?

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.

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