Articles Posted in Work Visas

We are not even one week after H1B filing day and problems are here. AILA Liaison has been advised by USCIS that a small number of petitions submitted for the FY2010 H-1B quota were receipted in error . This means the Immigration already issued receipts, even before any lottery. If this happened to your case, this is a mistake as final count of cases is still going.

Please check your petition to make sure you indicate that it was new employment, a cap submission, and why it is a cap case. See our H1B posting on how to mark a case. This is important to help identify petitions that should be included in the H-1B lottery.

We will keep you posted of any new developments.

It looks like there will be a delay in the launch of the new iCert PERM portal for processing labor certifications (LCs). As planned, the new LCA system will launch on April 15, 2009, when employers and attorneys can set up their iCert accounts and begin submitting the new LCA forms through the iCert portal. A month after its launch of the LCA portal, as of May 15, 2009, LCAs will only be accepted through the iCert system. The existing LCA online system will continue to accept LCA filings through May 14, 2009, at which time it will only be online for case status checks and LCA withdrawals.

Employers and applicants should be aware of the upcoming changes to both the LCA and PERM/LC processes. We will continue to track changes to the DOL’s iCert portal system and will update our readers.

The H1B Frenzy is almost over, see below a sample of what some cases looked like before leaving our office.

It is likely that companies will file fewer H-1B visa applications for Fiscal Year 2010 as a result of the economic recession. However, there will still be demand for the talent and innovation that drives our Nation’s economy. It is unknown how may H-1B professional and specialty occupation visa petitions will be filed tomorrow (when the USCIS begins accepting petitions for FY 2010 tomorrow). It seems almost certain that all 85,000 visas will be utilized before the fiscal year begins on October 1st, 2009.

The U.S. District Court for the Western District of Washington recently ruled in Ruiz-Diaz v. United States that a U.S. Citizenship and Immigration Services (USCIS) regulation is “unreasonable and impermissible.” A federal judge has struck down a long-standing government policy that made it tougher for religious workers from other countries to remain in the United States. Chief U.S. District Judge Robert Lasnik wrote in an order issued last week that the policy was at odds with the intent of Congress.

Ruiz-Diaz potentially provides religious workers who have filed I-360 petitions with the ability to concurrently file adjustment of status applications. This would allow religious workers whose underlying R visa status is expiring (the R is valid for five years) to remain in the U.S. as adjustment of status applicants. At present, the I-360 approval process is lengthy, after which point the religious worker can file an adjustment application, due to the need to conduct a site investigation on each filing.

Under the Department of Homeland Security’s policy, religious workers who came to the United States on a typical five-year temporary visa were not allowed to file for permanent residency — their green card — until a separate visa petition by their employer had been approved.

Starting April 3, employers must use a revised Employment Eligibility Verification form I-9 which is dated February 2, 2009.

Until such time, employers must continue to use the I-9 form dated June 5, 2007.

The most significant changes in the new form are:

As I am writing this post, my fingers are hurting from the amount of H1B forms I had to sign today. We are almost ready with our cases. Yet, last minute clients are calling in need of our services. Tomorrow will be the last day we accept cases (I promised my wife:))

The H-1B filing season is upon us once again, fiercer than ever. The first day to file cap-subject petitions for FY 2010 is April 1, 2009. In the event that more petitions are received than the annual cap, USCIS will conduct a lottery to pick petitions to be adjudicated. Additionally, employers that are recipients of TARP funding have new requirements when filling out the newly revised Form I-129 and additional attestation requirements for the Labor Condition application.

USCIS has confirmed that if USCIS determines that they have received a sufficient number of cases in the first five business days of April to reach the cap, then the “lottery” will be based on petitions received all five days. USCIS will not begin to issue receipts, however, until a determination is made that sufficient H-1B petitions have been received within the first five business days of April, ending April 7, 2009.

Most H1B applicants assume that as long as they mail the cases on April 1, USCIS will consider it filed. Well today we have some new clarifications from USCIS. U.S. Citizenship and Immigration Services (USCIS) today announced that it will begin accepting H-1B petitions subject to the fiscal year 2010 (FY 2010) cap on April 1, 2009. Cases will be considered accepted on the date that USCIS takes possession of the petition; not the date that the petition is postmarked. Make sure to have it sent by March 31, 2009 the latest to avoid any delays.

Read more here…

We post a practice tip from AILA member Jill Bussey at Baker and McKenzie, very useful

A close review of Paragraph E of the April 2009 Visa Bulletin, issued March 9, 2009, reveals the Employment Third Preference Worldwide and Philippine cut off of March 1, 2003 was effective immediately upon issuance of the Visa Bulletin. This has been confirmed by communications with Charles Oppenheim of the State Department. Mr. Oppenheim indicated he attempted to stave the cut-off through March, however the demand for EB3 numbers was too high. Mr. Oppenheim reiterated the information found in the Bulletin, “since over 60 percent of the Worldwide and Philippines Employment Third preference CIS demand received this year has been for applicants with priority dates prior to January 1, 2004, the cut-off date has been retrogressed to 01MAR03 to help ensure that the amount of future demand is significantly reduced. As indicated in the last sentence of Item A, paragraph 1, of this bulletin, this cut-off date will be applied immediately. It should also be noted that further retrogression or “unavailability” at any time cannot be ruled out.” Mr. Oppenheim advised 85-95% of Employment Based adjudications occur through USCIS, which has been expediting the processing of Third Preference cases. He also shared that he has seen increased demand in First Preference cases from 2007. It is highly unlikely the Third Preference category will remain available in the near future. Further retrogression or “unavailability” may occur at any time.

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In previosu Blog posts I reported the growing concerns from employers and workers with respect to the new H2A regs. The Department of Labor (DOL or the Department) now proposes to suspend for 9 months the H-2A regulations published on December 18, 2008, which became effective on January 17, 2009, that amended the rules governing the certification for temporary employment of nonimmigrant workers in agricultural occupations on a temporary or seasonal basis, and the enforcement of contractual obligations applicable to employers of such nonimmigrant workers. A suspension would provide the Department with an opportunity to review and reconsider the new requirements in light of issues that have arisen since the publication of the H-2A Final Rule, while minimizing the disruption to the Department, State Workforce Agencies (SWAs), employers, and workers.

To avoid the regulatory vacuum that would result from a suspension, the Department proposes to reinstate on an interim basis the rules that were in place on January 16, 2009, the day before the revised rules became effective.

As the H1B season coming to an end, many lawyers, like us, are busy with preparing the H1B petitions. It feels like getting ready for a race, a big race. So who is going to win the lottery this year? Last year Indian tech firms such as TCS, Infosys and Wipro apart from scandal-hit Satyam Computer Services received maximum number of H1B work permits, as these companies sent more professionals to the US.

India’s second biggest software exporter led the list of H1B visas issued last year with around 4,559 work permits, Wipro received 2,678 approvals, Satyam managed some 1,919 and TCS received around 1,539 H1B permits. According to the data released by the United States Citizenship and Immigration Services (USCIS), Microsoft, the world’s biggest software maker, stood fourth in the list of top H1B users with around 1,037 work permits for foreign workers.

Because of the grim economy, the prediction is that this year’s numbers will be lower, at the same time, companies are still in line to secure precious H1B spots.