Visa Lawyer Blog

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According to computerWorld, President Barack Obama has signaled interest in taking up comprehensive immigration reform. And any push for immigration reform is almost certain to include an increase in the H-1B cap. Patrick the reporter outlined 5 reasons why the cap will be increased; Read the excellent article here

The main lesson to be learned from the H1B saga this year, is that the market worked and won. Given the large number of jobs lost in the U.S. economy, employers submitted far less petitions than they did last year. Contrary to what critics of the program maintain, the cost of employing an H-1B worker exceeds that of hiring a U.S. worker given attorneys’ fees and government filing fees.

Congress should stop trying to control the program, and return to a simple market-based system. The plain truth is that the overwhelming majority of U.S. employers comply with the law. Those that abuse the law should be stripped of their ability to petition for H-1B workers. So bottom line is that, if you are in need of good quality workers, you can still hire them on the H1B visa. But you need to hurry.

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In the past week or so we have been receiving many requests for evidence on all H1b cases filed on April 1, 2009. The RFEs received by us and practitioners across the country so far appear to only request that the single page of the I-129 Data Collection sheet be sent with the TARP question answered.

Due to the passage of EAWA, USCIS is required to collect TARP (and Section 13 funding) information on each H-1B petitioner. However, by the time the new form became available, we had already completed our packages for the H-1B cap filing period for April 1, 2009. Therefore, USCIS confirmed that the new I-129 form was not mandatory and that only the one page (of the I-129 Data collection sheet requesting the TARP information) was urged to be included.

At the AILA Spring Conference in Washington, D.C., Barbara Velarde, Chief, USCIS Service Center Operations, mentioned that if the TARP information was not included in the filing, the petitions would not be rejected. However, USCIS would need to send an RFE for the TARP information. Unfortunately, this was not clearly explained in the USCIS fact sheet on TARP issued on March 20, 2009. Nevertheless, USCIS is required under the EAWA statute to obtain this information and the easiest way for USCIS to comply is to send an RFE. This is a very annoying and time consuming process for all us dealing with H1B filings, and even more confusing for the clients. We hope that USCIS explain better such crucial changes in future matters.

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I can not remember a time in my practice when I got so many inquiries and emails about investing and relocating to the United States. You would think that in these tough economic times, people will stir away from this country. The opposite is true. In these challenging times, many foreign investors are looking at the US as a potential gold mine. Trying to position themselves for the moment the economy takes a different course.

According to Jack Welch, in these recessionary times, a new business doesn’t stand much of a chance unless it provides a demonstrably superior value proposition than the market’s current offerings. Sure, not that long ago, you could still take a competitor’s service or product, tweak it or slap on a new feature or two, and persuade customers to buy it at a premium. But with everyone in hunker-down mode, the days of marginal up-selling are gone, and could be for some time to come.

That said, if you’re an entrepreneur or a foreign investor who has actually come up with a product or service that will significantly improve people’s lives—for significantly less than the going rate—here’s why right now might be the right time to forge ahead.

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The new LCA Form (ETA-9035) will be available for use starting TODAY, April 15. However, the current version of the form will still be accepted through May 14. Starting on May 15, LCAs may be filed only through the iCERT system. DOL will disable the existing online system, but employers/attorneys will continue to have online access for case status checks and LCA withdrawals.

The most notable thing about the new LCA system is that DOL advises users to expect processing times for LCAs to increase up to 7 business days as there will be an official review and DOL certification of each LCA submitted. Employers and attorneys will need to plan accordingly.

The DOL will start accepting the new PERM Form ETA-9089 for processing on July 1. Again, the current version of the ETA-9089 will be accepted through July 31. Starting on August 1, PERM applications may be filed only through the iCERT system. DOL will disable filing functionality in the existing online system, but will continue to provide online access for case status checks and PERM application withdrawals.

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The U.S. Department of State (DOS) has issued the Visa Bulletin for May 2009, which announced EB3 unavailability for all countries of chargeability. The EB2 cutoff dates for China and India had been February 15, 2005 and February 15, 2004, respectively, and have not changed for May 2009. The EB3 visa unavailability is due to high demand for immigrant visa numbers and, particularly, a large number of cases with older priority dates.

The EB2 category continues to be current for all countries, except India and China. The cutoff dates for India and China did not change from the prior month. The cutoff date for India remains as February 15, 2004. China’s cutoff date is still February 15, 2005.

Lets see what the summer will hold for all visa categories.

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Living in a border city like San Diego we hear stories like this one from time to time. The AP report about Pedro Guzman has been an American citizen all his life. Yet in 2007, the 31-year-old Los Angeles native — in jail for a misdemeanor, mentally ill and never able to read or write — signed a waiver agreeing to leave the country without a hearing and was deported to Mexico as an illegal immigrant.

For almost three months, Guzman slept in the streets, bathed in filthy rivers and ate out of trash cans while his mother scoured the city of Tijuana, its hospitals and morgues, clutching his photo in her hand. He was finally found trying to cross the border at Calexico, 100 miles away.

In a drive to crack down on illegal immigrants, the United States has locked up or thrown out dozens, probably many more, of its own citizens over the past eight years. A monthslong AP investigation has documented 55 such cases, on the basis of interviews, lawsuits and documents obtained under the Freedom of Information Act. These citizens are detained for anything from a day to five years. Immigration lawyers across the nation say there are actually hundreds of such cases.

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President Obama says he wants to tackle immigration reform; and do it this year. In fact, he says he plans to begin as soon as next month.

According to CNN, the president says he will rely on a bipartisan and diverse group of experts to frame the legislation. But officials say that immigration won’t be “on the same track” as other key initiatives like health care and energy, and “nobody’s promising legislation or a vote this year.”

Nonetheless, it looks like the president will try to make good on yet another campaign promise by working to fix the nation’s broken immigration system during his first year in office. There are an estimated 12 million illegal aliens in this country.

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I made a bet with a few fellow Immigration experts about the timing of the cap being reached. I now admit that I lost. I predicted the cap to be met by the 7th with 85,000 regular H1B’s filed.

Today we got the H1B news, and in line with the current economy.

USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap. Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees;however, they continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

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The H1B visa filing status seems to be the main issue for clients and site visitors in the past week. USCIS announced today that the H-1B cap has not been reached and it continues to accept H-1B petitions for both the 65,000 regular cap and the 20,000 higher-degree cap. Should USCIS receive the necessary number of petitions to meet the respective caps, it will issue another update to advise the public that, as of a certain date (the “final receipt date”), the respective FY 2010 H-1B caps have been met. So for now, we can keep filing.

Here is the original notice from USCIS Download file

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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.