Visa Lawyer Blog

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“This is unbelievable, this is not happening”

says Jacob Sapochnick, an immigration attorney based in San Diego, California. Thousands of employers, visa applicants and their family members couldn’t agree more. Attorney Sapochnick was describing the federal government’s Scary-tight restrictions on visas released each year to highly skilled foreign workers needed by technology firms.

This year, as in the past, 65,000 of these H-1B visas are available. On April 2, the first day on which applications were accepted for 2007, U.S. Citizenship and Immigration Services received more than 180,000 petitions from companies needing them to hire scientists, engineers, architects, computer programmers, researchers and other highly trained employees. It’s clear that a lot of skilled workers wishing to live and work here are out of luck and employers are in big trouble.

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U.S. Citizenship and Immigration Services (“CIS”) announced on April 3, 2007 that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2008 (“FY2008”). CIS will use a random selection process (described below) for all cap-subject filings received by April 3, 2007. CIS will reject and return along with filing fee(s) all petitions received on those days that are not randomly selected.

CIS has determined that as of April 2, 2007, it had received enough H-1B petitions to reach the FY2008 H-1B cap and has set the original final receipt date as April 2, 2007. In keeping with regulations and guidance, CIS will subject H-1B petitions received on the final receipt date and the following day to a computer-generated random selection process.

CIS will reject all cap-subject H-1B petitions for FY2008 received on or after Wednesday, April 4, 2007. CIS will reject and return along with the filing fee(s) all cap-subject H-1B petitions that are not randomly selected.

Employer Petitioners may re-submit petitions on April 1, 2008 when H-1B visas become available for FY2009. This is the earliest date for which an employer may file a petition requesting FY2009 H-1B employment with a start date of October 1, 2008.

As of April 2nd, CIS has received approximately 150,000 cap-subject H-1B petitions. CIS must perform initial data entry for all filings received on April 2 and April 3 prior to conducting a random selection process (lottery). In light of the high volume of filings, CIS announced that it will not be able to conduct the random selection for several weeks.

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I have been filing PERM Labor Certification cases from the early days the system was introduced a couple of years ago. As you may know, the PERM filing is free.

As part of the roll-out of its proposed fiscal 2008 budget, the Department of Labor announced that it will be seeking authority from Congress to charge fees to cover the program costs of PERM.

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How Can It Do This?

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Visa Bulletin Department of State released the Visa Bulletin for March 2007, which reflects retrogression in the family-based third preference category for Mexico and the Philippines. Also, little forward movement is expected in the employment-based third preference category in the near future.

Definitions

Visa numbers: The U.S. government makes only a certain number of immigrant visas (green cards) available each year and these are allocated among the various immigrant visa categories and countries from which applicants seek to emigrate.

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USCIS proposed fee increases averaging 66% and in return is promising 20% processing time improvements by the end of 2009. It seems very unreasonable to me as many of our clients will find it more difficult to apply for benefits. I understand that fees go up, but 66%, this is not a good sign!
According to USCIS, fee increases will hit the following application types: (1) Application to Replace a Permanent Resident Card (I-90) – current fee is $190; proposed fee is $290; (2) Petition for Alien Fiancé (I-129F) – current fee is $170; proposed fee is $455; (3) Application to Register Permanent Status or Adjust Status (I-485) – current fee is $325; proposed fee is $9051; and (4) Application for Naturalization (N-400) – current fee is $330; proposed fee is $595.

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The J-1 visa is an exchange-visitor visa for persons coming to the U.S. as a student, scholar, trainee, teacher, professor, research assistant, or medical graduate to participate in a training, research or study program approved by the Department of State.

Given that there are no limits on the number of J visas issued annually AND the fact that, unlike an H1-B visa, applicant is not subject to any visa limits, the J visa is generally a great option for both applicants and sponsors. However, before applying for a J visa there are important considerations of which potential applicants and sponsors should be aware.

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As most of our readers of you are aware, there is an annual cap on the number of new H-1Bs that USCIS can approve. The cap opens up each year on October 1, the start of the government’s fiscal year. However, because H-1B petitions can be filed 6 months in advance of the employment start date, H-1B petitions for those subject to the cap can be filed as early as April 1, 2007.

Every year, since the cap was reduced to 65,000 H-1Bs per year, the cap has been filling up sooner and sooner. Last year, the cap was reached on May 26, creating a window of less than 2 months during which any new H-1B petitions could be filed for that year. There are 20,000 extra visas for applicants with Masters degrees from US Universities.

For those of you looking for work and a US sponsor, now is the time to update your resume and start networking.

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