Labor Immigration Law

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.

In a recent conversation with the American Immigration Lawyers Association (AILA) of which our office is a member, Mr. Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State, has provided some updates and thoughts on the visa numbers and the Visa Bulletin.    For many, he is simply known as the person responsible for the monthly and annual visa number allocations for family- and employment-based green cards.  He is also the person who prepares and publishes the monthly visa bulletin which is highly anticipated every month.    Mr. Oppenheim provided some recent updates and thoughts on the visa number movement over the next few months and we are happy to share with our clients and readers.

Summary of Mr. Oppenheim’s Key Points

Immigration Reform.  Immigration reform proposals that are currently circulating in Washington, DC are under review at Mr. Oppenheim’s office so that his office is ready to adjust if/when an immigration reform (whatever it ends up looking like) becomes a law, his office is ready to respond.

EB-5.  Over the past few months, Mr. Oppenheim’s office had expressed a concern that EB-5 China numbers were moving too fast; however, it appears that the numbers have leveled off which means that a cutoff date for EB-5 China, while possible, is not as likely anymore.   At the same time, worldwide EB-5 usage is up 75% when compared to the same period of last year.

EB-1 India and China.  According to Mr. Oppenheim, EB-1 India and China have used numbers for the year, but the rest of the EB-1 categories’ numbers can “fall across” and satisfy any additional EB-1 India and China demand and prevent a cutoff date.

EB-2 India.   Very little, if any, movement expected in the short term due to upgrades (porting of priority date) from EB-3 India to EB-2 India.   According to Mr. Oppenheim, in December 2012 alone, India EB-2 had 125 cases approved that were from 2003 or earlier.   Considering the current 2004 cutoff dates, EB-2 India could easily reach the annual limit — an indication that any forward movement is extremely unlikely.   Possible good news is the possibility of certain “fall down”  from EB-1 (numbers are not known at this point) to allow for more numbers to be used for EB-2 India.   “Fall down” refers to taking numbers from one category which may remain unused (EB-1) and allocating t another category which has a high demand (EB-2 India, for example).     Current numbers indicate that there are approximately 42,000 EB-2 India cases in line with priority dates prior to May 2010.

EB-3 India.   There are 44,000 cases with priority dates before August 2007, which have been pre-adjudicated, though final approval and visa issuance has not taken place due to priority date retrogressions over the past several years.   Also, some of these cases are upgrading to EB-2 so the numbers are in constant flux.

Visa Bulletin Predictions – Employment-Based

Mr. Oppenheim was able to provide some predictions and expectations for movement of visa numbers over the next few months.   Please note that these are short-term predictions and depending on the number of applications as a result of the next few months’ visa numbers, the rate of cutoff date movement may change.

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

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

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

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

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

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

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

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

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

On Predicting the Visa Bulletin Cutoff Dates

We wish to reiterate previous comments and thoughts of Mr. Oppenheim with respect to the ability of others outside of his office to predict reliably the cutoff date movements.   He suggested that while some of the datapoints that go into determining the cutoff dates are available — demand data, number filings — there is so much more (variables and data, some of which is impossible to get) that goes into a cutoff date determination in each visa bulletin that a reliable prediction is impossible for anyone including, sometimes, the Visa Office of Mr. Oppenheim.   There are many variables that affect the demand.  For example, the slow rate of EB-2 India forward movement in the future is due to the number of I-485 filings but also due to the fact that there are “extraordinary number” of EB-3 to EB-2 India porting cases.   Mr. Oppenheim cannot predict how many of the EB-3 India candidates will end up porting into EB-2 — as a result, by the time he “sees” an EB-2 India case, he has not anticipated for it and has to slow down the EB-2 India forward movement even further to be able to accommodate EB-2 India applicant with a very early (2003, 2004, etc.) priority date.

Conclusion

Mr. Oppenheim’s comments are extremely helpful to get a sense of the visa cutoff dates over the next few months.  Our EB-2 India and our EB-3 India clients would find Mr. Oppenheim’s predictions disappointing, especially since many EB-2 India applicants were able to get very close to being current earlier this year.   Fortunately, those EB-2 India and China applicants who became current earlier this year and were able to file I-485 applications would  be able to take advantage of AC21 portability rules and take new employment and more freely advance their careers.

Also, many EB-3 India candidates who now qualify for EB-2 would be able to improve their waiting times dramatically by upgrading to EB-2.   We are happy to help analyze and assist in such EB-3 to EB-2 India or China porting cases.

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  Finally, if you already haven’t, please consider our Visa Bulletin Predictions tool which provides personalized predictions and charts helping you understand when a particular priority date may become current and what are the movement patterns.

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.