Labor Immigration Law

Many of our readers are aware that as of April 5, 2013, 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 April 5th have been rejected.  Additionally, due to the high number of H-1B petitions (124,000), the government has run a lottery to allocate the available 85,000 H-1B visas.   Well before the H-1B cap season, our office was anticipating that the demand this year would be very high and we have repeatedly warned our readers and clients that the H-1B cap filing window this year would be extremely narrow.   As a result,  some employer and prospective employees who wanted to take advantage of the H-1B program this year are unable to do so — either because they were unable to file between April 1st and 5th or because their application was not picked by the H-1B lottery.     We seek to provide some alternatives which may be available.

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, 2014, when the new fiscal year’s H-1B quota would begin (as a reminder, April 1, 2014 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 Transferee

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.

TN for Canadian and Mexican Professional Workers

An option available to certain Canadian and Mexican nationals in certain occupations is the TN visa classification.   It is available to citizens of Canada and Mexico who would be employed in the U.S. in one of the designated occupations.  The TN visa is not subject to a cap and can be obtained fairly easily either by applying at the border (for Canadians) or by filing a petition with USCIS.    Please see more information on the TN visa classification.

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 Possible, Although Timing is Uncertain

Not entirely by coincidence, the comprehensive immigration reform proposal which was introduced in the U.S. Senate over the past couple of days increases substantially the H-1B cap, among other changes to the H-1B program and the immigration system, generally.     Please read our overview and analysis of this proposal.

Unfortunately, this proposal is likely to be subject to extensive discussion, amendments and negotiation here on Capitol Hill and we do not know if or when the proposed immigration reform would become a law.   As a result, we urge caution with respect to reading too much into the initial proposal.   However, if the proposal becomes a law, then the H-1B cap would expand significantly and hopefully,  in upcoming  H-1B cap years, we would not face this kind of extremely narrow filing H-1B cap window.

Wait and File on April 1, 2014 for the FY2015 Cap

For some of our clients, waiting until April 1, 2014 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, and assuming the proposed immigration reform is not enacted by then, the FY2015 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).

Conclusion

Our office will continue to monitor developments relating to the H-1B program, this and next year’s caps and the immigration proposals.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

Many of our clients and readers are aware that the U.S. Congress here in Washington, DC has been working on a comprehensive immigration proposal over the past few months.     Until today, there have been many proposals, a lot of discussion and even more rumors as to what may or may not be included in a comprehensive immigration proposal.  Today, the so-called “Gang of Eight” U.S. Senators have released their proposal for an immigration reform — The Border Security, Economic Opportunity and Immigration Modernization Act of 2013 — and we finally have some actual and detailed proposal to share with our clients and readers.

Update (April 17, 2013):  the full text of the proposed legislation has been made available.

Please note that at this point, this is only a proposed legislation and is not the law.

Summary of the Proposed Immigration Reform

The Border Security, Economic Opportunity and Immigration Modernization Act of 2013 deals with a number of immigration issues:

• Family Visa (Green Card) Program.   Allows unlimited number of immigrant visas per year for spouses, children and parents of U.S. citizens and permanent legal residents.   Eighteen months after enactment of the law, eliminates immigrant visas for foreign brothers and sisters of US citizens, and married children over 30 years of age.  Backlog to be eliminated.
• Employment Visa (Green Card) Program.  Backlog targeted for elimination.  Derivative beneficiaries (spouses/children) will be exempt from the annual visa numerical limits.  Also, exempt will be extraordinary ability, outstanding professors/researchers, multinational executives/managers, Ph.D. holders and certain physicians.  Increased allocation for EB-2 and recent U.S. STEM Master’s degree holders.
• Startup Visa (Green Card) Created.  The proposal would create a startup visa for entrepreneurs who seek to emigrate to the U.S. to start their own company.
• Merit Based Visa (Green Card) Created.  After five years, a new merit-based visa will be created and would allocate green cards based on points awarded on the basis of education, employment, length of residence in the US and other factors.   120,000 visas available per year, with annual adjustments.
• H-1B Cap, Salaries and Fees Increases; H-1B Dependent Employers.   The H-1B cap will double to 110,000 with the possibility of adjustments of the cap of up to 180,000 per year.  The minimum H-1B salary will increase and the fees paid by H-1B employers will be increased.   Employers will see limits on how many H-1B workers they can have.
• Guest Worker Program.  Establishes a new visa program for 20,000 foreigners in low-skilled jobs starting in 2015.   The number of visas increases to 75,000 in 2019.   A new federal agency will analyze employment date to make adjustments on the cap – with a maximum of 200,000 annually.   Construction companies will be limited to no more than 15,000 per year.   There is also a “safety-valve” to allow additional visas in excess of the annual cap provided employers pay workers higher wages.
• Farm Worker Program.   Visas for agriculture workers (including those who are without authorization) would be made available and wages will have to be based on survey of labor-market data.  The H-2A program will be eliminated once the new W-2 or W-3 program is operational.
• Diversity Visa (Green Card) Lottery.   To be eliminated in 2015.
• Path to Citizenship.   Most of the 11 million people who are in the country without authorization would be able to apply for a green card after 10 years and for citizenship three after that.   Applicants must pay a fine, pay back taxes, learn English and pass background check.   The cutoff date for eligibility is December 31, 2011.   Dream Act youth can obtain green cards in five years and citizenship immediately thereafter.
• Border Control and E-Verify Required.   The Department of Homeland Security will receive funding to improve border security with drones, agents and fencing.   US companies must implement the E-Verify employment authorization system which ensures that workers are legal residents within five years.   All non-citizens will be required to show “biometric work authorization card” or “biometric green card.”   A new entry/exit tracking system will be implemented at ports to better track foreign visitors who overstay their visas.

Family and Employment-Based Immigrant Visas

The proposed immigration law will substantially revise the current family- and employment-based immigrant visa (green card) system.  It will aim to eliminate the current (significant) backlog in most of the immigrant visa categories and then, in five years, introduce a merit-based immigrant visa.

Family-based.

Out of the four family-based preference categories (which have annual limit of 480,000), two will be eliminated and the eligibility for the rest will be revised.   Under the new bill, there will be two family-based categories and they will cover unmarried adult children; married adult children who file before age 31, and unmarried adult children of lawful permanent residents.   The V visa will be expanded to allow individuals with approved family petition to reside in the US and other family members to visit the US for up to 60 days per year.

The bill removes immigrant visas for siblings of U.S. citizens (in 18 months after the bill is enacted) and amends the definition of “immediate relative” to include a child or spouse of an alien admitted for lawful permanent residence.  Also, the existing category for married sons and daughters of U.S. citizens is amended to include only sons and daughters who are under 31 years of age.

Employment-based.

The new bill will exempt the annual numerical limitations the following categories:  derivative beneficiaries (spouses/children) of employment-based immigrants; aliens of extraordinary ability, outstanding professors/researchers; multinational executives and managers; Ph.D. degree holders in any field; and certain physicians.  Currently, all of these categories are counted under the annual numerical limits and, as a result, are slowing down the approval of the immigrant visas for everyone else.

Forty percent of the employment-based immigrant visas will be allocated to what are now considered to be EB-2 workers with the addition of recent (the five years before petition is filed) U.S. master’s degree holders in a STEM field.

Additionally, an increased allocation (forty percent) of the annual employment-based limit will be allocated to skilled workers, professionals and other professionals.  The limit to immigrant visas for special immigrants will be ten percent and visas for those who foster employment creation (entrepreneurs/job creators) will also be limited to ten percent.

The bill would also create a startup visa for foreign entrepreneurs who seek to emigrate to the U.S. to start their own companies (and presumably create jobs).

Merit-based.

The merit-based immigrant visa will be created in the fifth year after enactment of the proposal and would award points to applicants on the basis of education, employment, length of residence in the US and other factors.   The applicants with the most points would be granted the merit-based immigrant visa.   The annual limit would be set at 120,000 and the number would increase by 5% per year if demand exceeds supply in any year, assuming the U.S. unemployment rate is under 8.5%.  The cap cannot exceed 250,000 per year.

Until the merit-based program starts (five years after enactment), the government will allocate the visa numbers to employment-based applicants who have been pending for more than three years, family-based petitions filed prior to enactment and pending for more than five years, long-term immigrants (those who have been in the US for 10 years).  In other words, the government will use these numbers to decrease the current backlog in the employment and family immigrant visa categories.

H-1B Visa Reformed – Cap and Fees Will Increase; H-4 Spouses May Work; Additional Requirements on H-1B Employers

Cap Increase.

The H-1 work visa program is set to be revised substantially.  The H-1B cap will be doubled from 65,000 to 110,000 per year, with the U.S. master’s cap amended to include only U.S. master’s degree holders in STEM fields and with the cap for such holders increased to 25,000 per year.   The H-1B cap will be adjusted annually, depending on demand and can go as high as 180,000 per year (but with maximum annual adjustment of 10,000).

H-1B Fees.

The H-1B fees will increase substantially, for some (mostly H-1B dependent) employers.  If an employer has 50 or more employees and more than 30% but less than 50% are H-1B or L-1 employees (who do not have a green card petition pending), the employer must pay a $5,000 fee per additional worker in either H-1B or L-1 status.  If the employer has 50 or more employees and 50% are on H-1B or L-1 status (and do not have a green card petition pending), then the additional fee is $10,000 per worker.

H-1B Employee Number Limits and Recruitment Requirements.

The bill also introduces certain restrictions on the number of H-1B employees a company can have.   Starting fiscal year 2014, companies will be banned from brining any additional workers if more than 75% of their workers are H-1B or L-1 employees.   Starting fiscal year 2015, the ban applies to companies if more than 65% of their workforce are H-1B and L-1 workers and in fiscal year 2016, the ban moves down to 50%.  It is unclear if pending green card applicants would be included in this count.

Before an employer can file an H-1B petition, the employer will have to recruit American workers first.  The Department of Labor will have a searchable website for posting H-1B positions and employers will have to post a detailed job opening on this website for 30 days before hiring an H-1B applicant to fill that position.

H-4 Employment Authorization

The bill would allow spouses of H-1B workers (who are on H-4 status) to obtain work authorization if the country of origin provides reciprocal treatment to spouses of U.S. workers.

H-1B Portability.

The bill would create a 60-day transitional period during which H-1B workers will be eligible to change jobs – in contrast to the current system where there is no grace period between switching jobs.

Dual Intent for F-1 Student Status.

The bill would create dual intent for F-1 students who apply to come to the U.S. to study in a bachelor’s (or higher) level program.  This should make it easier for many F-1 students to obtain a visa stamp at the U.S. Consulate as a substantial number of F-1 visas are being denied due to some immigrant intent.

New Guest Worker Program

The bill proposed a new guest worker program which would be a “W” visa.   The W visa holder will be able to come to the US o perform services or labor for a “registered” employer in a “registered” position.  Spouses and children would be able to accompany the worker and would be given work authorization.   There will be an annual cap of 20,000 initially, with annual increase to a maximum of 75,000 in 2019.  Afterwards, the annual cap would vary depending on a calculation of employment and demand with an increase in the cap being linked to lower unemployment and increase in the required salary – the so-called “safety valve”

The maximum period of stay for W nonimmigrants would be 3 years and may be renewed for an additional 3-year period.  There is a limit on unemployment (60 consecutive days).

Employers who wish to employ W visa workers will have to submit an application and describe the type and number of employees needed.  Before an application can be submitted, however, the employer would have to advertise for at least 30 days and carry a number of recruitment steps.  Annual reports will have to be submitted to the government.  The wages should be either the actual wage paid by the employer to other employees with similar experience or the prevailing wage, whichever is higher.

The W visa would not be available to positions which normally require a bachelor’s degree or higher, including some computer-related occupations.

Diversity Visa Lottery to be Eliminated in 2015

The diversity visa (green card) lottery will be eliminated in 2015.  Applicants/winners under the 2013 and 2014 lotteries will be processed.

Path to Citizenship to People without Authorization

The bill creates a path to citizenship to the 11 million or so people who are currently in the U.S. without authorization.  The bill creates a Registered Provisional Immigrant (RPI) status.  To obtain an RPI status, a foreign national must have been in the US as of December 31, 2011 with continuous physical presence in the US, must pay a $500 penalty (except Dream Act youth), pay taxes and application fees (to be determined).  Ineligibility grounds include:  conviction for aggravated felony; conviction of felony; conviction of three or more misdemeanors; conviction of an offense under foreign law; unlawfully voting; and otherwise inadmissible due to health, security or moral grounds.

Immigrants who are granted RPI status and their spouses/children will obtain work and travel authorization.  The RPI status will be for a 6-year term, with the possibility of extension.  After an immigrant has been in RPI status for 10 years they can adjust to a permanent status under the merit-based system (described above) and assuming all existing immigrant visa backlogs have been cleared and after paying a $1,000 fine (and only after the borders have been secured, see below).

Border Control Strengthened and E-Verify Required for All Employers

The bill sets certain goals for securing the US borders and directs the Department of Homeland Security to implement certain measures to secure the border.  Beginning to implement such programs is a condition to the approval of RPI status to people who are in the US without authorization and there are certain benchmarks as conditions to allowing RPI holders to adjust and obtain lawful permanent status.

Additionally, the bill requires all employers to use the E-Verify system over a 5-year phase-in period.  Large employers with 5,000 or more employees will be required to start using E-Verify in two years.  Employers with more than 500 employees will have three years and all employers will have to start using E-Verify in four years.  E-Verify will have a photo-matching component requiring employers to match E-Verify system photo with the new hire and to ensure that this is the same person.

Finally, the new bill would create a better entry/exit tracking system at ports of entry to allow better tracking of foreign visitors who overstay their status in the U.S.

Important Note:  This is Just a Legislative Proposal and Not a Law Yet

It is important to underscore that this is a legislative proposal introduced by a number of U.S. Senators and not a law.  Only after an identical bill is passed by both the Senate and the House and signed by President Obama would the bill be enacted into law.   We expect that there would be a number of hearings, comments, amendment to this proposal over the next days and weeks and it is entirely possible that many of the provisions would change, some substantially.

Conclusion

We are very happy to be finally able to share some actual proposal for a comprehensive immigration reform.  We expect a lot of activity over the next days and week and we will monitor closely and report on any substantial developments on immigration reform.   Also, we will be conducting a series of live chats and webinars to discuss and analyze this proposal, in its current form and as it may be amended before it becomes law.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

The U.S. Citizenship and Immigration Service (USCIS) has just provided some updated numbers in connection with the 2014 fiscal year (FY2014) H-1B cap.      Many of our readers are aware that on Friday, April 5th, USCIS announced that they have received sufficient number of H-1B petitions to close the FY2014 H-1B cap as of Friday.    Today USCIS has announced that they have received a total of 124,000 H-1B petitions for both the regular and U.S. master’s degree caps.

Lottery Conducted on April 7th

On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of H-1B petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit.   This suggests that for many H-1B beneficiaries, the chances of being selected under the H-1B lottery are a little bit over 50% (U.S. master’s degree holders have slightly higher chance because they are part of two iterations of the lottery, if they are not successful in the initial U.S. master’s degree iteration of the lottery).

For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

Post-Lottery Processing

Petitions which are selected under the lottery will be issued receipt notices and will be put in a processing queue.   Due to the heavy demand this year, we expect the H-1B processing times to be somewhat long.  Petitions filed under the premium processing service will start to be processed on April 15 and this is when the 15-day premium processing clock will begin.

Conclusion
We will continue providing updates on the FY2014 H-1B cap season, including filing statistics, as they become available.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

The U.S. Citizenship and Immigration Service (USCIS) announced earlier this afternoon that they have received a sufficient number of H-1B petitions to meet the annual H-1B cap for the 2014 fiscal year (FY2014).    According to USCIS, they have received more than 20,000 H-1B petitions filed for beneficiaries with U.S. master’s degree and more than the 65,000 general H-1B cap petitions.   As a result, any cap-subject H-1B petitions received by USCIS after April 5, 2013 will be rejected.

The Lottery Process

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received between April 1 and April 5, 2013.  The agency will conduct the selection process for advanced degree exemption petitions first.  All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.   Also, the total number of petitions received is not yet known due to the large volume of applications.

Petitions Not Selected under the Lottery Will Be Returned With Filing Fees

Petitions accepted for filing but not selected under the lottery will be returned to the petitioners together with the filing fees.

Post-Lottery Processing

Petitions which are selected under the lottery will be issued receipt notices and will be put in a processing queue.   Due to the heavy demand this year, we expect the H-1B processing times to be somewhat long.  Petitions filed under the premium processing service will start to be processed on April 15 and this is when the 15-day premium processing clock will begin.

H-1B Cap-Exempt Petitions Still Accepted

It should be noted that USCIS continues to accept cap-exempt H-1B petitions.   These are petitions generally filed by universities and non-profit research organizations (read more about cap-exempt employers).  Also, H-1B extensions and H-1B transfers are cap-exempt.

Conclusion

The FY2014 H-1B cap was reached, as anticipated during the first week it was open.   The reasons for the high H-1B demand this year may be caused by the improving economy.   Another reason may have been the self-fulfilling prediction by USCIS in March that they expect that the cap would be reached during the first week.

We will continue providing updates on the FY2014 H-1B cap season, including filing statistics, as they become available.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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.

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.

The Department of Labor has provided some updates for the first quarter of the Fiscal Year 2013 (October 1, 2012 to December 31, 2012) on their processing of PERM cases and we are happy to share them with our clients and readers.

DOL Processing Statistics (First Quarter, 2013 Fiscal Year)

PERM

According to the report, during the quarter, there were 16,724 cases received (slight decrease from previous quarters), 12,123 certified (notable increase from prior quarters), 1,532 denied (another notable decrease) and 680 withdrawn.  Since the net amount of applications filed exceeded the number of applications adjudicated, DOL’s PERM load has grown during the quarter by about 2,000-3,000 cases.

As of December 31, 2012, there are 29,344 (increase from prior quarters) PERM cases pending at DOL.   Of these, 48% are pending analyst review (slight decrease), 37% are in audit (no change), 14% are on appeal (substantial increase) and 1% are in sponsorship verification (at filing).  It is interesting to note that there were no cases reported in supervised recruitment — we believe that this may be incorrect reporting, because there are supervised recruitment cases right now at DOL.

Prevailing Wage Determinations

The prevailing wage report provides some detailed breakdown of the rate of filings in addition to details about top employers, top occupations and top areas.   During the first quarter, there were approximately 31,000 prevailing wage determination requests filed — of those, 25,747 were for PERM cases, 1,804 were for H-1B cases (notable decrease) and 3,130 were for H-2B cases (notable increase).

In terms of activity, more prevailing wage determinations were issued in Q1 compared to prior quarters – 33,246.   The number of pending applications has decreased over each of the months in the quarter and is at 11,519 at the end of the quarter.

H-1B/LCA

The H-1B/LCA report also provides a breakdown in the rate of filings, in addition to some details about the top LCA filers, in addition to the top positions and geographic areas.    Since this quarter fell entirely outside of the H-1B cap filing season, the number of LCA filings is low compared to other quarters during the year.    There were 58,812 H-1B LCA filings in the first quarter, a decrease over prior quarters which is, again, mainly attributed to the lack of H-1B cap filings.  During the quarter, there were 56,637 LCAs certified for 175,806 positions (one LCA can include more than 1 position).

According to DOL, 99% of the LCAs are processed within seven days of receipt.    The rate of LCA denial is very small (1,461, out of 66,303) and the main reasons are (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issues.

The U.S. Citizenship and Immigration Service (“USCIS”) is set to begin accepting H-1B visa applications pursuant to its Fiscal Year 2014 (FY2014) quota.   The first day on which USCIS will accept new, cap-subject H-1B petitions, is Monday, April 1, 2013.

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 FY2014 starting on October 1, 2013.

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 FY2014 H-1B cap is April 1, 2013.  By law, the earliest starting employment date for petitions approved under the FY2014 H-1B cap is October 1, 2013.  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, 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 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. 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 in just over two months.

Below is a comparison chart of the H-1B cap demand for the past two H-1B cap seasons.

As the U.S. economy is gaining strength, we believe that the H-1B cap will be finished faster than last year when it took a little over two months for all H-1B visas to be used.    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 of the increasing demand and the recovering U.S. economy, it is our expectation that the H-1B cap this year will be in high demand and we recommend that clients consider their H-1B needs as soon as possible and be prepared to file on the first available date – April 1, 2013.    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.

It is only Tuesday and this week has already been full of immigration proposals.   After yesterday’s announcement for a blueprint for a comprehensive immigration reform, today a group of Senators has released an actual draft bill which picks up where yesterday’s proposal left off with respect to employment-based immigration.      Senators Orrin Hatch of Utah, Amy Klobuchar of Minnesota, Marco Rubio of Florida and Chris Coons of Delaware have introduced the Immigration Innovation (I2, or I Squared) Act of 2013 which seeks to increase the H-1B quota, enhance the portability of existing H-1Bs, increase the number of employment-based green cards and allow U.S. students (especially STEM) to obtain green cards faster.   See the full text of the proposed bill.

Employment-based Nonimmigrant H-1B Visas

The Immigration Innovation Act of 2013 seeks to increase the H-1B cap from 65,000 to 115,000 and establish a dynamic “H-1B escalator” which would increase the cap based on demand during each H-1B filing season, with a maximum of 300,000.   The bill also removes the cap (to unlimited number) from US advanced degree holders (currently at 20,000 per year).   Dependent spouses to H-1B visa holders will be permitted to work and increased portability rules will make it easier for H-1B workers to switch employers (creating grace periods after termination, etc.).

Employment-based Green Cards

The bill would enable the recapture of green card numbers that were approved by Congress but were not used in the past.   Certain categories of applicants would be exempt from the green card numbers:  dependents of employment-based green cards; U.S. STEM advanced degree holders; persons with extraordinary ability and outstanding professors and researchers (under the EB-1 category).   The bill would also provide for the roll-over of unused employment-based immigrant visa numbers to following fiscal year so that green cards numbers are not lost.   Also, the proposal would eliminate the annual per-country limits for employment-based visa petitioners and also adjusts the per-country caps for family-based visas.

Additional Fees to be Used for U.S. Training Programs

The bill would raise the fees for H-1B and I-140 petitions and the increased fees would be used to support grant programs to the states to promote STEM education and worker retraining.

Conclusion

It should be noted specifically that this is simply a proposed bill, and not a law.   This bill, in its current shape, is likely to undergo changes, some of which dramatic, even if it ultimately becomes a law.   Since there are a number of immigration proposals circulating at this time in Congress, it is possible that this bill may be folded into a more comprehensive immigration package.

We will certainly follow developments very closely and provide updates.   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 this article.

Our office frequently consults with companies and with individuals who are faced with the question on whether receiving a certain government benefit (most often unemployment benefits) would cause problems for an individual’s immigration process.     This article seeks to explain the concept of “public charge” and to provide some useful information in the initial analysis of whether taking a certain benefit is permissible for non-immigrants and immigrants.

The concept of a “public charge” has been part of U.S. immigration law for more than 100 years as a ground of inadmissibility and deportation.  The idea is that the U.S. taxpayer should not support new immigrants, at least for an initial period of their admission into the U.S.   An individual who is likely at any time to become a public charge is inadmissible to the United States and ineligible to become a legal permanent resident. However, receiving public benefits does not automatically make an individual a public charge.

Background

Under Section 212(a)(4) of the Immigration and Nationality Act (INA), an individual seeking admission to the United States or seeking to adjust status to permanent resident (obtaining a green card) is inadmissible if the individual “at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” If an individual is inadmissible, admission to the United States or adjustment of status will not be granted.

Immigration and welfare laws have generated some concern about whether a noncitizen may face adverse immigration consequences for having received federal, state, or local public benefits. Some noncitizens and their families are eligible for public benefits – including disaster relief, treatment of communicable diseases, immunizations, and children’s nutrition and health care programs – without being found to be a public charge.   As a result, there is some confusion as to what kind of benefits do constitute a public charge and what kind of benefits do not.   We seek to provide some general guidance.

Public Charge – Definition

USCIS defines “public charge” as

an individual who is likely to become “primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance, or institutionalization for long-term care at government expense.”

See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

In determining whether an alien meets this definition for public charge inadmissibility, a number of factors are considered, including age, health, family status, assets, resources, financial status, education, and skills. No single factor, other than the lack of an affidavit of support, if required, will determine whether an individual is a public charge.

Benefits Subject to Public Charge Consideration

USCIS guidance specifies that cash assistance for income maintenance includes Supplemental Security Income (SSI), cash assistance from the Temporary Assistance for Needy Families (TANF) program and state or local cash assistance programs for income maintenance, often called “general assistance” programs.   Acceptance of these forms of public cash assistance could make a noncitizen inadmissible as a public charge if all other criteria are met.  However, the mere receipt of these benefits does not automatically make an individual inadmissible, ineligible to adjust status to lawful permanent resident, or deportable on public charge grounds.   Each determination is made on a case-by-case basis in the context of the totality of the circumstances.  See “Field Guidance on Deportability and Inadmissibility on Public Charge Grounds,” 64 FR 28689 (May 26, 1999).

In addition, public assistance, including Medicaid, that is used to support aliens who reside in an institution for long-term care – such as a nursing home or mental health institution – may also be considered as an adverse factor in the totality of the circumstances for purposes of public charge determinations. Short-term institutionalization for rehabilitation is not subject to public charge consideration.

Benefits Not Subject to Public Charge Consideration

Under the USCIS guidance, non-cash benefits and special-purpose cash benefits that are not intended for income maintenance are not subject to public charge consideration. Such benefits include:

• Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases, use of health clinics, short-term rehabilitation services, prenatal care and emergency medical services) other than support for long-term institutional care
• Children’s Health Insurance Program (CHIP)
• Nutrition programs, including the Supplemental Nutrition Assistance Program (SNAP)- commonly referred to as Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs
• Housing benefits
• Child care services
• Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP)
• Emergency disaster relief
• Foster care and adoption assistance
• Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary or higher education
• Job training programs
• In-kind, community-based programs, services or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter)
• Non-cash benefits under TANF such as subsidized child care or transit subsidies
• Cash payments that have been earned, such as Title II Social Security benefits, government pensions, and veterans’ benefits, and other forms of earned benefits
• Unemployment compensation

Some of the above programs may provide cash benefits, such as energy assistance, transportation or child care benefits provided under TANF or the Child Care Development Block Grant (CCDBG), and one-time emergency payments under TANF.   Since the purpose of such benefits is not for income maintenance, but rather to avoid the need for ongoing cash assistance for income maintenance, they are not subject to public charge consideration.

Unemployment Insurance Benefits Are Normally Not Subject to Public Charge

USCIS has specifically indicated that unemployment insurance benefits paid to a noncitizen worker are not subject to public charge consideration.   The unemployment benefit insurance program is administered by the states who pick up the cost of providing the unemployment insurance initially (normally 26 weeks).  After this period, the federal government pays for the cost of the unemployment insurance up to a certain maximum number of weeks.

Eligibility for unemployment insurance varies slightly by state and also as to whether the benefits are paid by the state (during the first 26 weeks) or by the federal government (afterwards).   The group of eligible recipients during the state-paid initial 26 week period is larger than the eligible recipients under the extended federal benefits period.  For example, H-1B holders may be eligible to obtain benefits under the state-paid initial 26 week period, but they are normally not included in the list of eligible recipients of the extended federal benefits.  Lawful permanent residents (green card holders) are normally eligible for both the state-paid and federal-paid periods.

Conclusion

As described above, a public charge can have very serious consequences on one’s immigration process.  As a result, we caution that the information provided above is based on general USCIS guidance which can vary based on individual case facts.   We urge our clients and readers to conduct extensive research (contact us or schedule a phone consultation to analyze your case) before accepting benefits which may be deemed to be public charge.