Labor Immigration Law

United States Labor Immigration Law News and Analysis

H-1B Articles

Alert: FY2015 H-1B Cap Reached on April 7th

The U.S. Citizenship and Immigration Service (USCIS) announced earlier this afternoon that, as of today, April 7th, they have received a sufficient number of H-1B petitions to meet the annual H-1B cap for the 2015 fiscal year (FY2015).    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 7, 2014 will be rejected.

The Lottery Process

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2015 cap-subject petitions received between April 1 and April 7, 2014.  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 (unless there were duplicate filings by the same employer for the same beneficiary, in which case no fees will be returned).

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 28 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 FY2015 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 FY2015 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.

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Very Short and Busy H-1B Cap Filing Season Expected: April 1st to April 7th (Five Business Days); H-1B Lottery Likely; Last Call for H-1B Cap Filings

As we are going into 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.     According to our sources (which includes clients, peer law firms and government agencies), we expect that the H-1B cap be reached in the first five business days of April with the number of filings over the first five business days far exceeding the available number of H-1B visas.  This means that there is almost a guarantee that there will be a random lottery to allocate the  available H-1B visas (65,000 regular cap in addition to 20,000 U.S. master’s degree or higher cap)  among all filings received in the first five business 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 7th.

What is the Ultimate Last Day to Start H-1B and Make It Under the Cap?

We are often asked when is the absolute last day when an H-1B case can be started and filed under the H-1B cap.    The answer is that it varies, depending on many circumstances.    If the employer can plan ahead and file an LCA early (or now), then a new (or confirmed) candidate’s H-1B petition can be started as late as April 1st and still be filed before April 7th.    The LCA is the step of the process which takes the longest to prepare and certify – often 7 business days.  New employers may also need to do a Federal Tax ID (FEIN) verification process (2-3 days) before an LCA is filed.   As a result, while it may be possible to start a new H-1B case as late as March 24, 2014,  there are many possible risk factors which would cause a late H-1B case to be delayed and miss the H-1B cap.

Our strong recommendation to employers is to consider filing all LCAs (even for planned but unconfirmed positions) over the next few days to keep the best possible options for a timely H-1B cap case filing.    Our office is happy to guide you on the timing process to give you the highest possible chance of making the cap.

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

Assuming the H-1B cap is reached by April 7th, as expected, all H-1B filings which are received over the first five business 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 business five days in April to be subject to the random lottery.  Last year, in April 2013, there was also a random lottery to allocate the approximately 130,000 H-1B filings among the total of 85,000 H-1B visas.

H-1B Filings Not Picked by the Lottery or Filed After the Cap is Reached Will be Rejected and Returned

H-1B cases filed over the first five business days in April but not picked by the random lottery or H-1B cases filed after April 7th (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 At a Later Date

In connection with the high level of H-1B filings, USCIS is likely to change the way they would process premium processing H-1B cases filed 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 is likely to indicate that that 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, the premium processing “clock” will begin later in April, most likely around April 15th.     This means that even for cases filed on April 1, 2014, the premium processing 15-day response window would not start until later in April.   Premium processing H-1B petitions filed outside of the H-1B cap (such as extensions or transfers) should not be affected.

Conclusion

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

W will be providing updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us immediately.

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PERM Statistics from the Department of Labor (FY2014 Q1)

The Department of Labor has provided some updates for the first quarter of the Fiscal Year 2014 (October 1, 2013 to December 31, 2013) on their processing of PERM cases and we are happy to share them with our clients and readers.    Please note that this period reflects the period of the partial government shutdown where DOL’s operations were suspended for 16 days.

DOL Processing Statistics (First Quarter, 2014 Fiscal Year)

PERM

According to the report, during the quarter, there were 17,623 cases received (slight 3% increase from the same period in the prior year), 9,076  certified (notable decrease by about 25% from the prior year), 1,039 denied (another notable decrease) and 949 withdrawn (about 50% increase).  Since the net amount of applications filed exceeded the number of applications adjudicated, DOL’s PERM load has grown during the quarter by about 7,000 cases.  This is also evidenced by the increasing PERM processing times (see the most recent report from February 2014).

Of the pending applications at DOL, 64% are pending analyst review (major increase from a year ago when the percentage was 47), 25% are in audit (decrease from 37%), 9% are on appeal (decrease from 14%) 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.    It is also notable that the percentage of cases pending analyst review have increased very substantially, while the audits have decreased somewhat.

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 29,612 prevailing wage determination requests filed — of those, 23,585 were for PERM cases (decrease of 3,000 or 8%), 1,404 were for H-1B cases (decrease of 400 or 21%) and 4,625 were for H-2B cases (notable increase of 48%).

In terms of activity, less prevailing wage determinations were issued in Q1 compared to prior quarters – 23,850 (most likely due to the government shutdown).   The number of pending applications has increased compared to a year ago significantly – there are 19,972 prevailing wage cases pending on December 31, 2013 compared to 11,519 on December 31, 2012.

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.    But this report was affected by the government shutdown in October 2013.    Even then, there were 67,645 H-1B LCA filings in the first quarter, an increase over the prior year’s period which may be attributed to the rush of LCA filings post-government shutdown.    During the quarter, there were 69,334 LCAs certified for 144,657 positions (one LCA can include more than 1 position).

According to DOL, 79% of the LCAs are processed timely within seven days of receipt (last year’s period metric was 99%).     The rate of LCA denial is very small (1,858 out of 79,304 determinations) and the main reasons remain (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issues.

Conclusion

The first quarter of the FY2014 was a turbulent time at DOL due to the government shutdown and the reports provided for this period reflect this.      We are hopeful that DOL would work on decreasing its load and processing times, especially for the PERM cases where the processing times have increased significantly.    We will continue monitoring DOL processing metrics and report any notable developments and trends.      Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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OFLC Annual Report Details DOL Employment Visa Processing

The Department of Labor (DOL) has released the most recent annual report for the Office of Foreign Labor Certification (OFLC).    Even though the report was recently released, it is for the 2012 fiscal year (FY2012) which covered the period between October 1, 2011 and September 30, 2012.    While we understand that the relevant period is not very recent, the annual report provides a very detailed picture and analysis of the various visa application processes handled by DOL and also provides very detailed statistics and graphs.

Highlights of the OFLC Report

The report is a 136-page document full of interesting statistics and patterns.  We will not provide a very detailed analysis of most of the areas in the report; however, we would share some interesting points we saw in the report.

  • In FY2012 OFLC processed almost half a million applications for 1.2 million positions.
  • The H-1B and H-2A programs saw increased in the number of applications (16% increase for H-1Bs); while PERM and H-2B decreased (10% decrease in PERM and 4.5% decrease for H-2B).
  • The PERM approval rate was approximately 81%.
  • The most active occupations were, not surprisingly, IT positions (Software Developers, Analysts, Electronics Engineers), followed by Admin Services Managers and Accountants/Auditors.
  • India is the leader in PERM cases (55%), followed by China (6%), Canada (5%), South Korea (5%) and Philippines (3%).
  • California is the state with most PERM cases, followed by New Jersey (decreasing trend), New York (decreasing trend), Texas (stable) and Washington (increasing trend – mainly due to Microsoft).
  • The majority (70%) of the certified PERM applications were for STEM degree holders (of which, about 95% were for IT/Engineering).    The same proportion was noted in the H-1B/LCA filings.

Conclusion

We invite our clients and readers who have an interest in the extensive details provided in the report to review it.   Our summary is simply intended to draw some interesting (to us, at least) highlights.   Although the report reflects a time period ending more than two years ago, especially in certain fast-pace industries, it still provides a valuable description of the process and some interesting trends and patterns among the various DOL immigration processes.

We 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.      Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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USCIS Redesigns and Proposes Revisions on Form I-129 – Public Comment Period Open

USCIS has circulated a proposed draft of a redesigned and revised Form I-129 and has opened a public comment period on the proposed changes.   The new form features a new design layout where most of the questions are the same but laid out slightly differently.   There are some changes to the wording of some questions, but there are also some notable substantive changes on the form which may impact a number of I-129 filers.   Specifically, one of the substantive changes on the form may impact notably beneficiaries who have certain ownership interest in the sponsoring employer.

Overview of Proposed Substantive Form I-129 Changes

DUNS Number.   The I-129 form now asks for a company’s DUNS number (more info)– we believe this field was added to allow USCIS to do better VIBE system checks on a petitioner’s existence.

Ownership Interest.   The form now asks whether the beneficiary has any ownership interest in the petitioning employer and if the answer is “Yes,” the form asks for details of the beneficiary’s ownership interest.    This is a new field and we believe it was added to allow USCIS to test the “employer-employee relationship” for many employers where the beneficiary has some ownership interest.   This can be a significant issue for startups and entrepreneurs who have secured H-1B visa (for example) to allow them to work for their own company.     Our office has dealt with this issue on numerous occasions and we see continued headwinds for entrepreneurs to obtain H-1B petition approval when the entrepreneur is a significant owner of the employer.       Our office also has an upcoming webinar on entrepreneurs and H-1B.

Attorney Attestation.   The form expands the attorney attestation section with respect to the accuracy and the quality of the information submitted on the form.

Conclusion

The public comment period ends on November 25, 2013 so we encourage anyone who wants to comment on the proposed Form I-129 revision to do so.     We would continue monitoring this subject and provide updates to our clients and readers.   Please do not hesitate to contact us if we can help you.   Also, please visit us again or subscribe to our free weekly newsletter to ensure that you obtain related immigration-related news and announcements.

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Infosys In $34 Million Settlement for U.S. Immigration Violations

The large Indian technology company Infosys has agreed to pay $34 million in a civil settlement after federal prosecutors in Texas alleged it had committed “systemic visa fraud and abuse” when bringing temporary workers to the U.S. on H-1B and B-1 visas. This kind of settlement is the largest ever in a visa case and while the details are scarce at this point, it shows that the U.S. government is starting to crack down on large scale abuse of some of the most common visa programs.

The Allegations and the Settlement

After an investigation of more than two years, prosecutors are expected to unveil today the settlement after accusations that Infosys knowingly and unlawfully brought Indian workers into the U.S.  on business visitor visa (B-1) dating back to 2008.    Additionally, Infosys is accused of having conducted improper I-9 compliance.   The company has agreed to pay $5,000,000  for civil or administrative forfeiture. It will pay $5,000,000 to the Department of State for Civil or Administrative forfeiture, and $24,000,000 to the U.S. Attorney’s Office for the Eastern District of Texas.

One of the reasons Infosys used the B-1 visa so extensively is that unlike the H-1B work visa (a common alternative), the B-1 has no annual quota and the costs are many times lower than for H-1B.   According to the allegations, Infosys systematically submitted misleading information to U.S. immigration authorities (at the Consulates and at the port of entry)  in order to secure admission to its B-1 business travelers.

For example, the settlement alleges that an invitation letter submitted by Infosys in 2008 stated that the purpose of the B-1 visa trip was for “customer discussions and related business development activities”, when, in fact, as known by Infosys, the purpose of the trip was to engage in activities not authorized under a B-1 visa such as coding, programming, testing, implementing, etc.

The settlement also alleges irregularities with the H-1B/LCA program compliance.   Prosecutors cite instances where Infosys H-1B workers who applied for an H-1B visa stamp were directed by Infosys to inform the U.S. immigration authorities that their actual workplace destination in the U.S. was the same as the workplace described in the Labor Condition Application (LCA) supporting the H-1B petition; however, Infosys and the foreign workers both knew that the foreign nationals have been assigned to work at a different U.S. worksite (not mentioned in the LCA or H-1B documents).

The settlement also alleges I-9 compliance irregularities.   After an investigation, federal authorities are alleged to have discovered significant I-9 compliance irregularities which could have allowed thousands of foreign nationals to continue working in the U.S. even after their visas or authorized status had expired.

Three Lessons from the Infosys Case

Our office is not familiar with the details of this case other than what is being reported in the media.   Over the next few days, more details are certain to come out.   But we would like to focus on the allegations and draw some important lessons for the benefit of our readers and clients.

B-1 Visa and Status Do Not Authorize Work.   The B-1 business visa program is designed to allow foreign nationals to come to the U.S. for a short period of time (less than six months) for the purpose of conducting business — conduct meetings with vendors or partners, visit a production facility, negotiate a contract or financing, training customers or partners, giving a speech or a presentation or similar business-related activity.    The B-1 visa does not allow work in the traditional sense of the word — engaging in a productive work, paid or unpaid.

H-1B and LCA Documents Should be Correct and in Compliance.    When submitting an H-1B visa stamp application or then traveling to the U.S. on H-1B status, both companies and H-1B workers should ensure that their H-1B and LCA documents reflect accurately the terms of the H-1B employment, including the actual H-1B worksite (for third-party placements).     When necessary, a new LCA and, possibly, an H-1B amendment should be processed as quickly as needed and as possible, even if this is after the fact (in other words, late compliance is better than no compliance).

I-9 Compliance Matters.   For employers of all sizes, it is easy to dismiss I-9 compliance activities, especially once an initial I-9 is completed.   But the Infosys settlement proves that the government will do I-9 investigation often in conjunction with another immigration violation, take seriously a number of irregularities and assess significant fines.    For all companies, but especially those who employ at least one foreign national, I-9 compliance and re-verification are becoming very important.

Conclusion

We will continue to monitor and report on additional important details and developments stemming from the Infosys settlement.    At the same time, we hope that the Infosys case will serve as a reminder that it is important to have adequate internal policies to ensure B-1, H-1B/LCA and I-9 compliance.

In addition to handling a number of visa matters, such as B-1 and H-1B, our office has developed a leading practice of I-9 compliance and we are able and happy to provide compliance advice on these issues.  Please feel free to contact us if our office can be of any assistance.   Please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics.

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FY2014 H-1B Work Visa Cap Reached as of April 5th — Alternatives to H-1B

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.

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Senate Immigration Reform Proposal Released: Summary and Analysis

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.

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FY2014 H-1B Cap Update – 124,000 H-1B Cap Petitions Filed; Lottery Completed

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.

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Alert: FY2014 H-1B Cap Reached on April 5th

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.

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