Visa Lawyer Blog

A few days ago USCIS updated the count of H-2B petitions received and counted towards the H-2B cap. As of July 1, 2008, 17,305 petitions have been counted towards the 33,000 cap for the first half of fy 2009. For the lawyers filing H2B visas and employers needing them badly, these are bad news.

I expect all H2B visas for the first half of the year (starting October 1) to be gone by mid August, if not earlier. Those that have filed their Labor Certifications already, make sure to work with the local SWA's and Department of Labor to make sure smooth processing of your files. Also, make sure to have your I-129 packages ready, so that with the LC's are approved you will be first to file.

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The American Immigration Lawyers Association reports that USCIS Service Center Operations has provided the following information to AILA liaison regarding processing cases under the FY2009 H-1B cap:

1. Except for cases that were being reviewed as potential duplicate filings, all receipts have been issued for those cases selected in the random lottery. The CSC and VSC completed data entry on all selected cases on May 23, 2008, and mailing of all receipts was completed on may 24, 2008. So if you have not been issued a receipt by May 24th, your case must have not been selected.

2. Cases that were thought to be duplicate filings are being hand reviewed to determine if they are true duplicates. USCIS has received approximately 500 petitions that are believed to be duplicates. However, some of these were submitted as "protective filings" due to courier delivery confirmation problems or where the petition was sent to an incorrect Service Center. Each will be reviewed and determined on a case-by-case basis. If the second submission was accompanied by an explanation of the reason for the second submission, there is a good chance of acceptance.

3. USCIS has determined that the number of petitions selected during the random selection process will be sufficient to meet the cap limit. Therefore, the use of the reserve/cushion will not be necessary this year. USCIS has begun to mail out rejections this week.

Those not selected must be planning for H1B visa alternatives.

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More bad news for H1B visa holders. DOJ's Office of Legal Counsel released a memo on the payment of back wages to doctors hired on H-1B visas by the Department of Veterans Affairs ("VA"), stating "the statute authorizing the H-1B visa program does not waive the federal Government's sovereign immunity. Therefore, an administrative award of back wages to alien physicians hired by the VA under the program is barred by sovereign immunity." This is a February 11th, 2008, Memorandum Opinion for the General Counsel, VA and Solicitor, Department of Labor, Payment of Back Wages to Alien Physicians Hired Under H-1B Visa Program.

Read more below.

Continue reading "H1B Visas - Federal Employers Do Not Have To Pay Back Wages To H-1B workers" »

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ComputerWorld's Patrick Thibodeau is doing an excellent job covering H1B and the Green Crisis in the past two years. I was happy to be interviewed for his H1B article coverage in early April. His most recent article regarding the need for Green Card Fix is right on the money.

He states: Fixing the permanent residency, or green card employment-based, visa program has been a top legislative goal of high-tech industry proponents, on par with their efforts to raise the H-1B cap.

And Lofgren, who heads the U.S. House Subcommittee on Immigration, is in the position to move legislation to the head of the class. But it remains to be seen whether she can jump over the legislative stalemate created by lawmakers who want comprehensive immigration reform or nothing at all. Rep. Zoe Lofgren (D-Calif.) has introduced three bills in the past few weeks to help foreign nationals already working in the U.S. obtain permanent residency.

Read more here...

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We continue our updates on the new TN visa extension rules. USCIS announced today that it is publishing a Notice of Proposed Rulemaking to increase the maximum amount of time a Trade- NAFTA (TN) professional worker from Canada or Mexico can remain in the United States before seeking readmission or obtaining an extension of stay. The proposal will extend the maximum period of admission for TN workers from one year to three years, the same term that USCIS currently may grant to H-1B specialty occupation workers.

The proposed rule will further allow eligible TN nonimmigrants to be granted an extension of stay in increments of up to three years, as opposed to the current maximum of one year. TN nonimmigrants are not subject to a maximum period of stay and thus may seek multiple readmissions or extensions, provided their intended professional activity continues and they remain otherwise eligible. Current regulations require that TN workers seek readmission or apply for an extension of stay each year.

More about TN visas read here

Read our TN visa Book here

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DHS issued an updated OPT filing guide for schools and students.In April, DHS published an Interim Final Rule (IFR) titled Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap-Gap Relief for All F-1 Students With Pending H-1B Petitions. The revised guide follows this rule.

Click here to download Download file

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The H1B madness is almost behind us, yet potential workers and employers alike are still curious and interested in this visa. They often want to know when will they be able to apply again and what is this visa all about.

The H1B status is for foreign workers who will hold specialty occupations. A specialty occupation is one which "requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation AND which requires the attainment of a bachelor's degree or higher in a specific specialty as a minimum for entry into the occupation in the United States."

The employer must describe the elements of the case to the USCIS on a petition format letter. This first posting in the series about the H1B process contains a sample of such letter. Click below

Continue reading "Sample H1B visa Letter of Support" »

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Some good news for Canadians and Mexican nationals seeking to live and work in the US. The Office of Management and Budget (OMB) has cleared a proposed DHS rule to allow TN visa holders to stay in the US for three (3)years instead of the current one (1) year limit.

Currently TN visa applicants must apply every year for renewals, either from inside the US or appear at the Border, for Canadian applicants. Mexican Nationals must still apply at the US Embassy in Mexico. We welcome the new proposed rule and hope that this will pass.

More on the proposed rule click here

Read our TN Visa Guide here

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Recently the Immigration, Citizenship, Refugees, Border Security, and International Law Subcommittee of the House Judiciary Committee held an oversight hearing on the H-2B seasonal worker visa program.

As I have previously reported, the Save Our Small and Seasonal Businesses Act of 2005 (SOS Act) created a cap exemption for "returning workers," defined as those workers who were counted against the 66,000 annual H-2B cap during any one of the three fiscal years preceding the fiscal year of the requested employment start date. The returning worker provisions of the SOS Act, which originally expired on September 30, 2006, were reauthorized by Congress for one additional year, through Fiscal Year (FY) 2007, which ended on September 30, 2007. This provision was never extended resulting is major hardship to employers in the Hospitality and Constructions industries as well as other employers.

We link to a testimony of R. D. Musser, III President of the famous Grand Hotel explaining the impact of the H2B crisis on his Hotel and the industry. He calls for immediate reform.

Read his testimony here Download file

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Good news for the aspiring self employed H1B workers. An AAO non-precedent decision finds that a corporation has a separate legal identity from its owner, even if it is owned and operated by a single person. Also finds that the proffered position is a specialty occupation, despite the fact that the beneficiary may undertake administrative tasks as the sole proprietor.

Although we never recommend for H1B workers to form companies that sponsor them , in certain cases it is very possible.

Read the decision here Download file

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U.S. Citizenship and Immigration Services (USCIS) today conducted
the computer-generated random selection processes on H-1B petitions, to select which H- 1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication. If
approved these H-1B petitions will be eligible to receive an H-1B visa number.

USCIS conducted two random selections, first on petitions qualifying for the 20,000
"master's or higher degree" (advanced degree) exemption, and second on the remaining
advance degree petitions together with the general H-1B pool of petitions, for the 65,000
cap.

The approximately 163,000 petitions received in the first five days of the eligible filing
period for FY 2009 (April 1 through April 7, 2008) were labeled with unique numerical
identifiers. USCIS has notified the appropriate service centers which numerical
identifiers have been randomly selected, so each center may continue with final
processing of the petitions associated with those numerical identifiers.

Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives. As previously announced, duplicate filings will be returned without the fee. The total adjudication process is expected to take approximately eight to ten weeks.

For cases selected through the random selection process and initially filed for premium
processing, the 15-day premium processing period begins today (April 14), the day of the random selection process.

USCIS has "wait-listed" some H-1B petitions, meaning they may possibly replace
petitions chosen to receive an FY-2009 cap number, but that subsequently are denied,
withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a
decision is made whether they will replace a previously selected petition. USCIS will
send a letter to the wait list petitioners to inform them of their status.

USCIS expects that for each of these wait-listed petitions, it will either issue a receipt
notice or return the petition with fees within six to eight weeks.

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Well the numbers are out, I lost my bet. I predicted 200,000 visa applications to be received. The actual numbers are lower. This reflects the low confidence employers put in this system.

U.S. Citizenship and Immigration Services (USCIS) today announced a preliminary
number of nearly 163,000 H-1B petitions received during the filing period ending on April 7, 2008. More than 31,200 of those petitions were for the advanced degree category.

USCIS expects next week it will conduct the computer-generated random selection process, beginning with the selection of the 20,000 petitions under the advanced degree exemption. Those petitions not selected under the advanced degree category will join the random selection process for the cap-subject 65,000 limit. USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless found to be a duplicate.

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Talk about H1B filing nightmare. American Immigration Lawyers Association has received reports that Federal Express forwarded a number of H-1B packages to the service centers without entering the individual package into the tracking system. AILA and USCIS are discussing how to handle the situation, and USCIS is talking to Federal Express.USCIS urges filers NOT to submit duplicates of packages that are missing tracking numbers, as that could result in both applications being denied as multiple filings under the new rules.

We sent ALL our cases via FEDEX but we were able to track all of them. Let's hope this problem will be resolved very soon. We will keep you posted.

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Our Blog is being read by thousands of Media outlets across the Globe. I was happy to be quoted by ComputerWorld about the recent H1B filing madness. For 40 years, Computerworld has been the leading source of technology news and information for IT influencers worldwide. Computerworld's award-winning Web site (Computerworld.com), weekly publication, focused conference series and custom research form the hub of the world's largest global IT media network.

The article covers the issues as to why is the demand for foreign workers, including skilled software developers and other IT professionals, still rising as economic conditions grow steadily worse? I have commented on the most recent changes to the H1B program and filing strategies to consider.

Click here to read the article

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Yes, the big day has arrived, March 31, 2008!!! We are very excited (and exhausted), but all our cases are ready to go via FEDEX to the Vermont or Califronia Service Centers dpending on the locations of the employers. We carefully marked all the envelopes with bright markers to indicate Premium and Regular processing cases. We also rubbed each envelope with a special H1B magic potion to make sure they will be selected in the lottery-...(just kidding, April fools is tomorrow!!!)

We just learned, that USCIS indicated that only H1B petitions selected in the lottery will be issued receipt notices. Last year it was madness, some H1B petitions were issued receipts before the lottery and without consideration for whether or not they were accepted for processing. This created significant confusion and anxiety. Some petitioners who were issued the receipt notice assumed that their filings were accepted for processing when, in fact, they were refused later through the lottery. To avoid this confusion this year, the USCIS will conduct the H1B lottery before issuing receipts for H1B petitions accepted for processing for FY2009. In anticipation of the rush of cap-subject H1B filings that will begin April 1, 2008, the USCIS has alerted the U.S. Postal Service and the courier services to the increased volume of mail expected.

We wish best of luck to all the H1B visa filers this year, and we will keep you posted....

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Yes the pressure is on and we are less than 7 days before the H1B filing date. Our office is open longer hours and dedicated staff members are trying to put together the cases in the most perfect order, according to the tips issued by USCIS The goal is to file on March 31, 2008 by close of business.

Here are some useful Q and A on the new rules:

What is the H-1B visa program?
The H-1B visa program is used by U.S. businesses to employ foreign workers in occupations that
require theoretical and practical application of highly specialized knowledge and a bachelor’s degree
or higher (or its equivalent), such as scientists, engineers, or computer programmers.

What is the purpose of the new rule?
The overall goal of the new rule is to promote equal opportunity for prospective petitioners seeking
visas for H-1B workers.

Continue reading "H1B Visas - Q and A on the new H1B rules" »

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As we are struggling to finish processing our H1B cases and get them ready for the March 31 filing date (look I am working on Saturday night!!!), new bills were introduced that may provide relief from the Cap. Here are the bills:

Strengthening United States Technology And Innovation Now Act (H.R.5642) - (March 14, 2008)

- Would Raise H-1B Cap in Fiscal Years 2008 and 2009 to 195,000 Annually
Innovation Employment Act (H.R.5630) - (March 13, 2008)

- Would Raise H-1B Cap in Fiscal Year 2008 to 130,000

With Possible Increases Up to 180,000 in Future Years
New American Innovators Act (H.R.5634) - (March 13, 2008)

Continue reading "H1B Visa Attorney - New Bills introduced will increase the H1B cap" »

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According to the American Immigration Lawyers Association, DHS/USCIS announced on a conference call on 3/19/08 that it has transmitted to the Federal Register an interim final rule regarding H-1B filing that would:

Change from 2 days to 5 days the period of time during which cap-subject H-1Bs can be received to be included in any "lottery" that would occur if, as expected, the number of petitions exceeds the quota.
Prohibit multiple filings from the same employer for the same employee, even if the filings are for different jobs. The one exception would be that related employers could file separate petitions for the same employee.
Result in the denial or revocation (without refund of fees) of any petition found to have been a multiple filing.
Change the lottery system so that the 20,000 U.S. advanced degree cap cases are selected first. If any advanced degree cases are left after that process, they would go into the overall 65,000 pool.
State that no refunds will be made on cases where someone incorrectly claims a cap exemption.

USCIS also indicated that it will continue to accept letters from authorized officials of schools indicating that a student has completed the requirements for a degree (i.e., all papers, exams, etc.) and is merely awaiting official conferral of the degree.

Read the Rule here

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With only a few weeks left for filing H1B visas, we are so busy at the office with last minute filings. In the next few weeks, we will be finalizing all the cases currently open and will be accepting new cases that have a chance to be filed before the April 1 deadline. Our biggest problem is cases with foreign degrees, such degrees must be evaluated before filing, and the later we receive the degrees, the harder it will be for us to file.

Still the biggest question that clients are asking, will the Government increase visa numbers before April 1 or in the near future.

Major corporations praised a bill introduced in the U.S. Congress that would double the number of immigrant worker visas available each year under the H-1B program.

The Innovation Employment Act, introduced by Representative Gabrielle Giffords, an Arizona Democrat, would increase the cap in H-1B visas from 65,000 a year to 130,000 a year. In addition, there would be no cap on H-1B applications for foreign graduate students attending U.S. colleges and studying science, technology and related fields. Currently, there's a 20,000-a-year cap on visas for graduate students in all fields.

The legislation would increase the H-1B cap to 180,000 in 2010 to 2015 if the 130,000 cap is reached the year before. Read more here

I will keep you posted on the situation with this Bill and with the madness at our office s we battle the H1B deadline.

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Are you feeling the H1B rush already? Our offices is extending our working hours in order to make sure that all our H1 files will be submitted in a timely fashion. So as April 1, H-1b visa application deadline approaching, IT companies are urging the government to authorize an increased number of visas to meet demand.

In just a few short weeks, the U.S. government will begin to accept applications for H-1B visas for Fiscal Year 2009. As was the case last year, not only is the annual supply of H-1B visas virtually assured to be exhausted on the very first day applications are accepted, half of those applying will lose out in the visa lottery, denying U.S. employers access to tens of thousands of highly skilled and badly needed professionals who could contribute to economic growth and job creation in this country,” Robert Hoffman, chairman of Compete America

But who is actually getting most of the H1B visas, did you take a moment to think about it. BW provided an excellent article and stats on this question and it seems that Indian outsourcers top the list of companies bringing foreign workers to the U.S. on the H-1B program. Indian outsourcers accounted for nearly 80% of the visa petitions approved last year for the top 10 participants in the program.

Infosys Technologies (INFY) and Wipro (WIT), both based in Bangalore, top the list of visa beneficiaries in 2007, with 4,559 and 2,567 approved visa petitions, respectively, according to data from the U.S. Citizenship & Immigration Services. Each visa allows the companies to bring one worker to the U.S., where they have substantial operations providing tech support and other services to corporations, complementing services provided from India. Overall, six of the top 10 visa recipients in 2007 are based in India; two others among the top 10, Cognizant Technology Solutions (CTSH) and UST Global, are headquartered in the U