USCIS updated its count of FY2011 cap-subject H-1B petitions and advanced degree cap-exempt petitions receipted. As of 8/20/10, approximately 33,900 H-1B cap-subject petitions were receipted. USCIS has receipted 12,600 H-1B petitions for aliens with advanced degrees. This is a major jump from the last update of August 13, 2010 where only 29,700 filings were reported.
Is this trend likely to continue? We think so, expect visas to run out by the early weeks of December.
In the recent concluded 2010 AILA Annual Meeting, many attorneys shared their experiences which are similar to those experienced by our firm -a surge of H-1B RFEs. The California Service Center (CSC) has been especially tough or “ridiculously tough” in adjudicating H-1B applications, according to some attorneys. However, according to USCIS statistic information, only 17% of H-1B petitions filed at CSC have been issued RFEs, while 20% of H-1B petitions filed at Vermont Service Center (VSC) have been issued RFEs. This number reflects the total opposite situation of what we have experienced.
The new H-1B guidance issued by USCIS on January 8, 2010 has undoubted contributed to the surge of H-1B RFEs. This guideline tries to clarify what kind of standards and documents are used to determine whether an employee-employer relationship exists. However the guideline limits the opportunities of obtaining an H-1B visa for 3rd party off-site work, consulting firm practices, self-employed business owners, and agent-staffing company petitions. In evaluating petitions, USCIS uses key definitions provided by common law principles and Supreme Court decisions. Essentially, in order to qualify as an employer, the right to control when, where, and how a beneficiary does his/her job is key. This is different than actual control. However, in practice, USCIS relies heavily on evidence of actual control to determine the right of control. It is also the reason we have seen an increase of H-1B RFEs in petitions filed for 3rd party off-site work, consulting firm practices, self-employed business owners, and agent-staffing companies.
How do we deal with the surge of H1-B RFEs? Are those 3rd party off-site work, consulting firm work, self-employed, and agent-staffing company jobs totally out of the picture of H-1B visa holders? These are some tips that are helpful:
According to Public Law 111-230, which contains provisions to increase certain H-1B and L-1 petition fees. Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions. The law became effective upon signing and will expire on September 30, 2014.
The additional fees apply to a petitioner that employs 50 or more employees in the United States and has more than 50 percent of its employees in the United States in H-1B or L (including L-1A, L-1B and L-2) nonimmigrant status.
The single additional fee, if applicable, is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any applicable American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee needed to file a petition for a Nonimmigrant Worker (Form I-129), as well as any premium processing fees, if applicable.
According to KPBS, A bill to strengthen the U.S.-Mexico border could be a mixed blessing for San Diego. That’s because paying for more for border security will require a hike in H1B visas.
The H-1B is a non-immigrant visa in the United States under the Immigration and Nationality Act, section 101(a)(15)(H). It allows U.S. employers to temporarily employ foreign workers in specialty occupations. If a foreign worker in H-1B status quits or is dismissed from the sponsoring employer, the worker can apply for a change of status to another non-immigrant status, find another employer (subject to application for adjustment of status and/or change of visa), or must leave the US.
The regulations define a “specialty occupation” as requiring theoretical and practical application of a body of highly specialized knowledge in a field of human endeavor including, but not limited to, architecture, engineering, mathematics, physical sciences, social sciences, biotechnology, medicine and health, education, law, accounting, business specialties, theology, and the arts, and requiring the attainment of a bachelor’s degree or its equivalent as a minimum (with the exception of fashion models, who must be “of distinguished merit and ability”.) Likewise, the foreign worker must possess at least a bachelor’s degree or its equivalent and state licensure, if required to practice in that field.
The U.S. House of Representatives has passed a bill to steeply hike U.S. visa fees for skilled workers to raise $600 million in emergency funding to help secure the U.S.-Mexico border.
Senators passed a similar plan last week. But since the House version passed in a voice vote on Tuesday is slightly different it will go back to the Senate for final congressional approval before being signed into law by President Barack Obama. The measure proposes to raise the fees on H-1B visas for companies who have more than 50 per cent of their employees on such visas for highly skilled professionals from $320 to $2,320. Similarly the fee on L visas given to multi-national transferees from $320 to $2,570.
The additional fees from the popular H-1B and L visas programmes would be used to build operating bases and deploy unmanned surveillance drones to better secure the U.S.-Mexico border, one of the rare issues both Democrats and Republicans have agreed on. The legislation targets companies that lawmakers say “exploit” U.S. visa programmes. A summary of the Senate version listed Wipro, Tata, Infosys and Satyam as such firms, saying that they fly thousands of employees to the U.S. to work at as technicians and engineers for their clients.
H-1B Cap Count as on August 6, 2010:
Cap Type – H-1B Regular Cap
Cap Amount – 65,000
According to the San Diego Union Tribune, San Diego’s small businesses are heading to bankruptcy court at a higher rate than last year, and the city is among the Top 10 metropolitan areas in the country based on the number of filings.
The number of small businesses filing for bankruptcy in the San Diego-Carlsbad-San Marcos region was 387 in the first quarter of 2010, giving it the sixth-highest number of bankruptcies.
In the San Diego metropolitan area, the number of small businesses that filed for bankruptcy was up 12 percent, compared with the same period last year.
Here is the current H-1B Cap count of FY 2011:
Cap Type – H-1B Regular Cap
Cap Amount – 65,000
U.S. Department of State has released the new visa bulletin for August 2010 on July 12, 2010.
Here is the crux:
EB-1 category is current for both Chinese and Indian nationals.
The U.S. Department of Labor launched an online registry allowing the public to retrieve information about temporary agricultural jobs that fall under the H-2A program. The new tool was developed in compliance with regulations implemented by the department on March 15.
The H-2A job registry provides a single, easily searched point of entry for the public to retrieve information about agricultural jobs filed under the H-2A program. It offers a range of customizable searches and gives users the ability to view, print or download information about agricultural jobs easily and without the need to file a request under the Freedom of Information Act. The tool will display all active agricultural jobs until 50 percent of the period of employment has elapsed, and it will offer an archive of certified agricultural jobs for up to five years.
The Labor Department estimates that more than 700 H-2A applications — for more than 13,000 workers — have been received since March 15. As this system goes live today, nearly 450 active H-2A job orders become available to the public.
Visa Lawyer Blog