Articles Posted in H1B Visas

Most attorneys that had H1B Visas to prepare worked most of last weekend to get the files ready. The goal was to file by April 1, 2013, Monday. According to a recent update by the American Immigration Lawyers Association, the 2 Service Centers were not prepared at all for the volumes.

The California Service Center has advised AILA Liaison that it “processed and accepted mail all day” on Monday, April 1, 2013. For deliveries to the VSC, members are reporting that they are receiving confirmation of Tuesday delivery for petitions sent to the VSC (Vermont Service Center) for Monday delivery.

According to information provided by FedEx, both the CSC and the VSC experienced delivery and processing delays during the day on Monday, April 1, 2013 (are we surprised?). AILA Liaison is attempting to get further information from USCIS HQ and the service centers involved.

There is less than one week left before the first day of H1B filing madness. Our office is super busy with cases to complete before the deadline. One question that comes up often is the H1B exemption for affiliation with or relation to an institution of higher education. Here is an update to an article from the previosu season. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.

During this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education.

Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.

I just saw this notice from USCIS and wanted to share with our readers:

U.S. Citizenship and Immigration Services (USCIS) announced today that it will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2014 cap on Monday, April 1, 2013. Cases will be considered accepted on the date that USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked.

The cap (the numerical limitation on H-1B petitions) for FY 2014 is 65,000. In addition, the first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degree or higher are exempt from the fiscal year cap of 65,000.

We have received an amazing response to our last H1B Self Employment Article and we wanted to follow up with a few more tips as the H1B filing date is just around the corner.

So the bottom line, USCIS regulations require that H-1B classification be accorded a foreign national who will perform services in a specialty occupation. USCIS will not approve an H-1B petition for “speculative employment.” So, to avoid RFEs (Request for Evidence) on these issues for new and smaller company typically formed by a sole investor, it is important to prepare H-1Bs with sufficient financial and other information to show the legitimacy of the company and the need for the H-1B worker. I often include,a copy of the office bank accounts, wire transfers of money deposited in corporate bank accounts, business plans, contracts with U.S. clients, etc.

H1B as the Owner

Most lawyers that are versed in the H1B visa process, are getting busier and busier these days. As we are nearing the April 1, 2013 filing deadline for the H1B visa. Many speculations out there as to when will the Cap be reached this year. The economy is doing OK, but employers are still careful before hiring. Yet, many Immigration experts feel the Cap will be met very early this year, but when is the big question.

With LCA’s now taking more than 7 days to process, as well as unreasonable denials, planning early is the key to a successful H1B case this year. But in this post, I want to go back to the basics, the Cap and the legislative background.

Background

Did you know that forty percent of Fortune 500 companies in the United States were started by immigrants or the children of immigrants. From 1995 to 2005, half of Silicon Valley startups had an immigrant founder and in 2005 alone those businesses did $52 billion in sales creating more than 400,000 jobs. Iconic American companies that built whole new industries like US Steel, Dupont, Google, eBay, Honeywell, and Intel were started by immigrant founders. Chobani Yogurt, founded in 2005 by the immigrant entrepreneur Hamdi Ulukaya in upstate New York, has created 1,500 American jobs.

Just as we find common ground that unites families and protects communities, so too should we ensure that the world’s most talented innovators and entrepreneurs who are educated in our great universities are able to stay and contribute, rather than be forced to set up competitor businesses abroad. Many end up leaving because our visa options for self employed founders are limited.

Foreign Start Up founders often struggle with visa options to stay and launch a company in the US. The options are limited, if your country is part of a US Investment treaty, one can apply for the E2 visa and start a small company by investing some money. If you have a million dollars, you could also invest in your business, and could apply for the EB5 Immigrant Visa. But what if you don’t have money, and your country is not a member of the E2 treaty? Well until recently you were out of luck.

New data has been released on cap-subject H-1b petitions. USCIS only allows 65,000 cap-subject petitions each year to be filed with USCIS. From the 65,000 petitions, there are currently 29,000 pending petitions that need a decision.There are 21,968 approved petitions, with 7,078 denied petitions. Taking the approval/denial ratio into consideration, it appears that 3 out of 4 petitions are being approved by USCIS. Notwithstanding any decisions overturned through the appeals process, that 75% rate is still low compared to years back where the approval rate for H-1b cap-subject petitions was closer to 90% approval rate.

Whether these numbers still reflect a concern for petitions based on fraud or whether it is based on any focus on bigger companies versus smaller companies filing the petitions, the fact is that USCIS has increased denials and even more cases were likely delayed approval because of requests for evidence on those cases. Hopefully the rest of the cases that are still pending will be met with more approvals.

The numbers through the third quarter of 2012 for H-1B petitions is in. Through a FOIA request made by the American Immigration Lawyers Association, the number of H-1B petitions that have been submitted, approved, denied, and withdrawn have been released. So far this year, 128,893 petitions have been submitted to USCIS. Of those petitions, 75,706 petitions have been approved, 20,717 have been denied, and 1,820 have been withdrawn.

This means there are still 30,650 petitions that are being decided by USCIS. Looking at the approval and denial rates, it appears that the approval rating is around 80% for H-1B petitions for 2012. While this may seem like a low number for employers to accept, it is a higher approval rate than in prior years. In addition, the denial number is the second lowest for denials since 2008, and taking the amount of petitions filed and still pending into consideration, the ratio for approvals to denials appear better than they were 5 years ago.

It is good to see that petition numbers and approvals have increased when comparing them to 2008-2011, but even despite these numbers, one would think the approval rate should be much higher. With all the political rhetoric going on around finding a way to keep those individuals educated in the U.S. in the STEM fields, the H-1B has always been the visa many of those individuals to utilize for working and staying in the U.S. Whether the denials come from a policy within USCIS or not, if we want to keep those educated in the U.S. from leaving, the H-1B visa needs to be utilized more in order to keep them here longer.

A recent study conducted has shown that there is a high demand for skilled H-1B workers in metropolitan areas. An analysis of the geography of H-1B visa requests — particularly in the metropolitan areas with the highest demand between 2001 and 2011 — reveals that demand for H-1B workers has fluctuated with economic and political cycles over the last decade and reflects a wide range of employers’ needs for high-skilled temporary workers. Employer requests have exceeded the number of visas issued every year except from 2001 to 2003 when the annual cap was temporarily raised from 65,000 to 195,000. Employers requesting the most H-1B visas are large companies subject to the cap specializing in information technology, consulting, and electronics manufacturing. Science, technology, engineering, and mathematics (STEM) occupations account for almost two-thirds of requests for H-1B workers; healthcare, finance, business, and life sciences occupations are also in high demand. Over the last decade the federal government has distributed about $1 billion from H-1B visa fees to fund programs to address skills shortages in the U.S. workforce.

One hundred and six metropolitan areas had at least 250 requests for H-1B workers in the 2010–2011 period, accounting for 91 percent of all requests but only 67 percent of the national workforce. Considerable variation exists among these metro areas in the number of workers requested and the ratio of requests to the size of the total metro workforce. On average, there were 3.3 requests for H-1Bs per 1,000 workers in these 106 metro areas, compared to 2.4 for the nation as a whole.

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More changes coming. The U.S. Department of Labor (DOL) recently published a proposed revision of ETA Form 9035 and its instructions. Form 9035 is more commonly known as the Labor Condition Application (LCA), and is required for all H-1B, H-1B1, and E-3 visa petitions. The proposed revisions would, among other things, limit the maximum number of workers who could be covered on a single LCA to no more than 10, and require that the intended worker(s) be identified by name on the LCA form prior to filing.

These are significant changes. The current rules allow a single LCA to cover hundreds of workers, and there is no requirement that there be any worker-identifying information on the LCA. In addition to the proposed revisions to the ETA 9035, the DOL also released a proposed version of Form WH-4, which is used by the DOL’s Wage and Hour unit to collect complaints of possible violations of the H-1B, H-1B1 and E-3 visa programs.

The DOL indicates that the proposed changes in data collection are intended to improve enforcement and investigation of LCA violations. The DOL will accept comments on the proposed form and its changes until September 7, 2012. Expect even more delays in the preparation and filings of LCA, guess it will also affect the timing for getting H1B’s filed by the deadline. We will keep you posted.