Visa Lawyer Blog

Articles Posted in Work Visas

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Employers and potential employees (and some immigration lawyers) are very confused when it comes to H1B visa numbers this year. The major reduction in the number of filings for H1B petitions has risen questions from employers regarding whether there is a set closing date for filing H1B cap petitions for fiscal year 2010, starting October 1, 2009. The answer to this is NO. Cap-subject H1B petitions can be filed for the full FY 2010 season, or until the numbers are all used up. As of 8-27-2009, cap numbers remain available and overall usage remains insignificant. Approximately 45,000 H1B visa numbers had been used toward the regular FY2010 H1B cap.

Also playing into the availability of H1B numbers is the increased scrutiny of H1B petitions, particularly those filed by software consulting companies. This has resulted in higher rates of denials and a general crippling effect on those companies that might otherwise file additional H1B petitions. If the U.S. Citizenship and Immigration Services (USCIS) does not receive enough approvable H1B petitions to exhaust the regular H1B cap for 2010, it will continue to accept H1B petitions against this cap until the end of 2010 which will be September 30, 2010.

If the numbers of visas out until October 1st, then employers will be able to request immediate start dates for employees. This may result in some additional filings, as it is more in keeping with the actual needs of employers. I predict an increase in H1B filings as of October 1, hoping the economy will rebound at that time as well.

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The immigration system mirrors the economy, now we know it. H1B visas are still available with more than 15,000 are up for grabs. The numbers are pretty much unchanged since late May.

As of August 14, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn. We will keep you posted with any changes in this area.

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The H1B visa program is unlikely to reach its cap of 65,000 before the start of the 2010 fiscal with nearly 20,000 vacancies amid the economic downturn. This has happened for the first time in several years that the demand for the visas, which is mostly availed by Indian professionals, has slowed down.

Also due to a large number of rejections of H-1B petitions, this figure of 20,000 vacancies has remained almost the same for the past two months. Past figures indicate that Indian IT professionals have been a major beneficiary of H1B visas. An additional 20,000 H1B can also be issued to those foreign professionals, who have masters or higher degree from the U.S. Though the U.S. Citizenship and Immigration Services (USCIS) received 20,000 petitions, it continues to accept applications in this category.

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The U.S. Department of State (DOS) is transitioning to a fully web-based nonimmigrant visa form. This form, DS-160, eventually will replace the forms currently used to apply for nonimmigrant visas at the U.S. consulates. The new form is currently being used at twelve consular posts around the world. The new form is being implemented gradually. It is used at the following consulates: Australia (Melbourne, Perth, Sydney); Bermuda (Hamilton); Canada (Montreal, Vancouver); Hong Kong; Ireland (Dublin); Libya (Tripoli); Mexico (Ciudad Juarez, Hermosillo, Matamoros, Monterrey, Nogales, and Nuevo Laredo), and Montenegro (Podgorica). The new form will be available worldwide by the end of the 2009 calendar year. The expansion is currently limited, in part, due to server capacity.

The applicant will know on how to save the application and how to file as a family group. The DOS intends to add access to information in advance of the interview. This includes checking existing data bases, including the Petition Information Management Service, Student and Exchange Visitor Information System, and fraud-detection systems.

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For the first time in several years the H1B visa system, is unlikely to reach its cap of 65,000 before the start of the 2010 fiscal with nearly 18,000 slots lying vacant thanks to the US economy. As of August 8, 2009, approximately 44,900 H-1B cap-subject petitions had been received by USCIS and counted towards the H-1B cap. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits.

This is in contrast to the previous years when the USCIS had to resort to computerised draw of lots as it received petitions outnumbering several times more than the Congressional mandated cap of 65,000 within the first few days after it started receiving H-1B applications. Here is some quick H1B visa history for you:

In 2007 and 2008 the caps were reached in the first few days itself – April 2 and April 1-5 respectively.

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Recently AILA shared some information about a “new” benefit fraud assessment program in which USCIS is beginning to use the millions of dollars it has received over the last decade from the “fraud fee” in the H-1B program. This new program involves the hiring of a private contractor to send “investigators” out to conduct 25,0000 site visits to H-1B employers to verify if the H-1B employee is working at the employer and performing the work as outlined in the H-1B petition.

The representative will indicate that he/she is a contractor hired to conduct these investigations (this is similar to the investigators that conduct the background investigations for government clearances) wearing badge with a picture. Questions can be asked in the following way:
1. Basic questions about the company, what you do, how many employees you had, work hours, office locations, etc.

2. How many employees one has on H1Bs, how many of them been sponsored for permanent residency and how many of them are legal permanent residents. Approximate numbers will be fine.

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There is not a dull moment this summer for us immigration lawyers, all thanks to good old USCIS. On 8/6/09 USCIS announced that it has reopened the fiscal year 2009 H-2B petition filing period and will immediately accept petitions. This is after closing the cap in January this year.

How could this happen? The Department of State received far fewer than expected requests for H-2B visas and as a result, has issued only 40,640 H-2B visas for fiscal year 2009 to date. This means that there are approximately 25,000 visas that may go unused, as they have not been granted. Because of the low visa issuance rate, USCIS is reopening the filing period to allow employers to file additional petitions for qualified H-2B temporary foreign nonagricultural workers.

But the catch is that filing and processing must be done by September 30, 2009. So those eligible must use the premium processing to do so. Also, employers must submit the Form I-129 Petition for a Nonimmigrant Worker to USCIS with all required documents, including an approved Alien Employment Certification from the U.S. Department of Labor that is valid for the entire employment period stated on the petition. The petitioner must also indicate an employment start date before Oct. 1, 2009. Otherwise the case will be considered for fiscal year 2010.

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These are fun and hot summer days for us Immigration lawyers filing H1B cases. As employers are starting to hire again, we are faced with the challenges of the new Labor Condition Application System, iCert.

The Labor Condition Application is a document which must be certified by the US Department of Labour and it an integral part in the H-1B applications. This document details the terms and conditions of employment, details of the employer, the work profile, rate of salary, prevailing salary (it means the lowest salary that can be paid to a h-1b visa holder) and the location where the h-1b holder will work. As of July 1, 2009 all LCA applications must be done via the icert system

In the past week or so many LCA cases came back with denial notices. The notices had the following language:

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After several years of investigations and further scrutiny, the R1 visa is back in the Premium Processing category under certain strict conditions. Only those petitioners who have successfully passed an on-site inspection are eligible to use Premium Processing Service.

Premium Processing Service is only available for R-1 nonimmigrant religious worker petitions at

this time. Such requests are made by religious organizations by filing the Form I-129, Petition for

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U.S. Department of Labor has implemented a new integrated online system – known as the iCert Portal – through which employers can submit applications for permanent labor certification, labor condition applications (LCAs) and other applications for immigration-related DOL programs. In addition, the agency will introduce new editions of Form ETA-9089, the PERM labor certification application, and have already introduced Form ETA-9035, the labor condition application. iCert has already replaced the method of LCA filing for H-1B. The new iCert system begins to accept LCAs as of July 1, 2009. Employer and attorneys as the case may be, can still use the old LCA account but cannot submit new LCA. New LCA has to be filed from iCert.

Following are the new changes which has taken place:
– The new LCA requires writing the SOC (ONET/OES) code and the occupation title for the job.

– The new LCA has a section for basis for the visa classification supported by the application. There are the following categories:
a. New employment;
b. Continuation of previously approved employment without change with the same employer;
c. Change in previously approved employment;
d. New concurrent employment;
e. Change of employer;
f. Amended petition.

– One has to indicate the total number of H-1B/H-1B1 non-immigrant workers.

– The new LCA also requires, in the employer information section, to indicate the Trade name/doing business as (DBA), if applicable, the old LCA does not have this requirement.

– In the new LCA, one is required to write NAICS code.

– There is a new section in the new LCA – Employer point of contact information, which requires to indicate the following: full contact’s name; contact’s job; contact’s address; contact’s telephone number; contact’s e-mail address.

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