Visa Lawyer Blog

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Just announced by USCIS, no more H1B visas for this year. U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. After today, USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received through April 5, 2013. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.

Also, USCIS is currently not providing the total number of petitions received, as they continue to accept filings today. USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

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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.

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Recently, the House and Senate are coming closer to reaching a deal on the sticking issues that have held up comprehensive immigration reform. In particular, the Senate has finally reached an agreement on how to handle the issue regarding visas for low skill laborers. Senator Schumer, Democrat of New York, convened a conference call on Friday night with Thomas J. Donohue, the president of the U.S. Chamber of Commerce, and Richard L. Trumka, the president of the A.F.L.-C.I.O., the nation’s main federation of labor unions, in which they agreed in principle on a guest worker program for low-skilled, year-round temporary workers.

Pay for guest workers was the last major sticking point on a broad immigration package, and one that had stalled the eight senators just before the break. The eight senators still need to sign off on the agreement between the business and labor groups, the person with knowledge of the talks said.

The accord between the influential business and labor groups all but assured that the bipartisan group of senators would introduce their broad immigration legislation in the next few weeks. Their bill, which they have been meeting about several times a week since the November election, would provide a path to citizenship for the 11 million illegal immigrants already in the country. It would also take steps to secure the nation’s borders

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We are all waiting for Immigration Reform. The proposals are very promising, and most of us can not wait. But Changing our country’s Immigration system, may come with a price. Obviously, we can not help everybody. It seems that while the focus is on Skilled Workers, the concern is that certain family categories may be affected as part of the Reform.

“Green cards are economic engines for the country,” Lindsay Graham, R-S.C., a member of the so-called Senate Gang of Eight working on immigration reform, recently told the Associated Press. “This is not a family court we’re dealing with here. We’re dealing about an economic need.”

Under Sen. Graham’s proposal, he would do away with petitions for brothers and sisters of US citizens (F4) and adult children (F1 and 3). Only family petitions for spouses and minor children would remain (IR and F2A). He said that he wants to focus on getting more skilled workers into the US and reserve family petitions only for spouses and minor children — not for siblings or adult children.

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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.

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Great update provided by AILA regarding TN Visa Admissions for Canadian Applicants. The fundamental and most valuable benefit to Canadians under NAFTA is the speed with which applications can be processed at the Port of Entry. You can arrive to the Border, present the application, pay the filing fee, and walk away with a record of admission (I-94) to evidence your newly acquired status. Unlike remote service center processing, this procedure also provides a rare opportunity to explain your application by having the chance to try to address the adjudicator’s concerns right on the spot. NAFTA frequently gives us this rare opportunity.

The North American Free Trade Agreement (NAFTA) allows certain Canadian and Mexican professionals to qualify for TN nonimmigrant classification in order to provide professional services in the United States.

A citizen of Canada may apply for TN classification concurrently with an application for admission at a U.S. Class A port-of-entry, at a U.S. airport handling international traffic, or at a U.S. pre-clearance/pre-flight station. It is not necessary for a citizen of Canada to first apply for a TN visa at a U.S. consulate outside the United States.

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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.

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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

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On March 8, 2013, USCIS released a new Employment Eligibility Verification Form I-9. Employers are required to use the Form I–9 to verify the identity and employment authorization eligibility of their employees. We are providing this update for U.S. employers to notify them of the changes and updates in connection with the release of the new form.

Structure of Form I-9

Form I–9 contains three sections.

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Recently, Congress has been dealing with numerous issues in reforming our immigration laws to meet some of the pressing societal matters, whether it be family members living here illegally, businesses wanting more qualified individuals to come work in the U.S. or trying to retain and keep those in hard sciences here with easier access to other work visas. One of the current debates within the immigration overhaul concern the needs of some businesses versus the major labor organizations in the U.S. There is some disagreement between these two groups on how to create availability of lesser skilled work visas for those who may not come in under other work visas that require substantially more education.

Right now, both sides agree to a common set of principles, including the creation of a new visa for lesser-skilled workers who come to the U.S. for year-round work. At present, no visa category provides for that type of immigrant worker. The only lesser-skilled worker visa category that exists is the H-2b visa, a seasonal worker visa that allows individuals to come to work during seasonal periods and usually within very specific fields.

With the Senate group approaching a self-imposed late-March deadline for a bill, there have been signs that negotiations between labor and business are strained. Both AFL-CIO President Richard Trumka and Republican John McCain (Ariz.), one of the senators working on the reform bill, have acknowledged that the two sides might not reach a deal on how to handle flows of lesser-skilled workers. However, despite the public doubts, negotiations are still very much alive, according to Randy Johnson, the senior vice president of labor, immigration, and employee benefits at the U.S. Chamber of Commerce.

“I think it’s a sign that it’s not all a bed of roses, but one could make the same argument about the various disagreements that I’m sure you’re seeing in the press over legalization versus citizenship,” Johnson said in an interview. “But all of these are just bumps in the road, and we hope to get through them and still come up with a deal.”
Ana Avendaño, a top immigration policy aide at AFL-CIO, said that unions believe they have an advantage in negotiations because of the reelection of President Barack Obama, whose immigration plan — which is being withheld while members of Congress craft their own bill — aligns closely with labor goals.

“This is the mandate that the president was elected with,” said Avendaño. “To actually fix the immigration system in a way that respects the democratic rights of the immigrant community. And so anything short of a path to citizenship just isn’t going to satisfy the people who elected the president.”
Labor isn’t just backing a pathway to citizenship for the undocumented currently living in the country. The new visa program for lesser-skilled workers should also contain an eventual path to citizenship, Avendaño said. The framework released last month by labor and business said that the new visa would “not keep all workers in a permanent temporary status,” but doesn’t spell out a specific roadmap to citizenship for those workers. Avendaño believes the balance of power is tipping in favor of worker rights.

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