Effect of Government Shutdown on Immigration
The shutdown of the federal government does affect applying for certain immigration visas. Fortunately, many services provided by USCIS, including processing of various petitions or applications for immigration benefits, will continue as they are fee-based. Therefore, applying to USCIS for non-immigrant petitions or permanent residence will continue at this time. USCIS offices are also open for interviews and appointments as scheduled.
Unfortunately, certain types of applications for immigration benefits are affected because they involve the U.S. Department of Labor, which is shutdown. Petitions to seek H-1B or E-3 status for employees cannot be completed at this time because a necessary component of these petitions is obtaining a labor condition application from the Department of Labor. Similarly, labor certification applications for employment-based permanent residence cannot be completed because the DOL is closed and therefore not accepting applications. While employers can complete preliminary work such as gathering information and documents, H-1B, E-3 and labor certification applications cannot move forward to completion until the DOL reopens.
The E-verify system is also shutdown. Therefore, employers will not be able to verify employment eligibility of any new hires or take any action in E-verify. The Department of Homeland Security has suspended the 3 day rule for E-verify cases that are affected by the shutdown and indicated that it will provide additional guidance once the federal government is reopened. We remind employers to be sure to continue to complete their form I-9’s for new hires within 3 days of hiring.
Immigration courts around the country are also affected. The court has announced that it will continue to hear cases of individuals in immigration detention, but is suspending all other functions due to the shutdown. Cases docketed during this time will be reset for future hearing dates.
The Department of State has announced that visa operations at U.S. consulates abroad will continue as they are fee-based.
We will provide further information as we receive it.
H-1B Cap Reached Within the First Week
U.S. Citizenship and Immigration Services (USCIS) announced that as of Friday, April 5, it had received a sufficient number of H-1B petitions to reach the cap for this year and will not accept any additional cap-subject petitions.
Since the cap was reached within the first week, all cap-subject petitions will be placed in a lottery. Petitions eligible for the “master’s cap” will first be placed in a pool for random selection for one of the 20,000 available “master’s cap” H-1Bs. Those not selected in that lottery will be placed with all others in the pool for the “regular cap” of 65,000 H-1Bs. Those who do not receive an H-1B in this year’s allotment will have their petitions and filing fees returned. USCIS has not yet announced a timeline for the selection process, but historically the process has taken several weeks. It has also not disclosed the total number of petitions received.
‘Tis the Season
Here in Colorado, the ski season so far is a bit of a bust as we are in desperate need of snow. However, the H-1B season is in full swing. Under the law, only 85,000 new H-1B’s may be allotted for foreign professional workers each year, and 20,000 of those are reserved for individuals who have completed a master’s degree or higher in the United States. The annual allotment of H-1B’s becomes available October 1, which is the start of the fiscal year. However, employers may apply April 1stfor an H-1B with an October 1st start date. In 2012, the H-1B cap was reached, meaning that all of 85,000 H-1B’s had been allotted, in ten weeks. Due to the improvement in the economy, it is expected that this year the H-1B cap will be reached even sooner, quite possibly the first week in April.
Foreign workers who have never previously been in H-1B status for a private employer are subject to the cap, meaning they must receive one of the coveted 85,000 H-1B’s in order to work in the U.S. in H-1B status. In contrast, except in extremely unusual circumstances, foreign workers who have previously held an H-1B for a private employer are not subject to the cap and often can extend their H-1B status, even if changing employers. An individual who does not receive an H-1B in the allotment would then have to apply next year. While certain individuals may have other options to continue employment in the U.S., depending on circumstances, we encourage all employers who need an H-1B for cap-subject individuals to start the process as soon as possible so that the petitions are ready to be filed April 1st.
If you intend to hire foreign workers, please join Ste
rn & Curray on February 6th from 12:00-1:00 pm (MST) for a complimentary teleconference that will help employers understand and plan for the H-1B cap. For more information, including how to RSVP, follow this link: http://conta.cc/Uvr9cl.
H-1B Season is Coming
The most important season for immigration law not winter, spring, summer, or fall. Rather, it is “H-1B Season.”
As of April 1, 2013, USCIS will start accepting H-1B applications for the next fiscal year with an effective date of October 1, 2013. USCIS will continue accepting applications until the H-1B cap numbers have been exhausted (65,000 regular H-1B numbers and 20,000 numbers for applicants with a master’s degree or higher).
In 2007, during the first week of April, USCIS received approximately twice as many applications as there are H-1B cap numbers. In subsequent years, due to the recession, H-1B numbers lasted as long as January of the following year. The numbers ran out quite quickly in 2012 and we expect that they will run out even faster in 2013. Therefore, employers should start the process of preparing H-1B applications for appropriate candidates in the near future . We want to make sure that our clients have sufficient time to prepare the applications to have them ready to file by April 1, 2013.
USCIS Issues New Rule about Change in H-1B’s Location
The California Service Center has issued a new policy about filing amended H-1B petitions for H-1B beneficiaries who change locations. In the past, USCIS has indicated that if a company files a new LCA before the H-1B beneficiary changes locations, an amended H-1B petition is not required. According to the new California Service Center policy, and experiences of companies in the field, companies must file an amended H-1B petition if an H-1B beneficiary changes locations even if the company already has an approved LCA in place that covers the new location.
Please contact us for more information if you have an H-1B beneficiary who has changed locations.
H-1B Cap Update
USCIS reports that as of April 13, 2012 it has receipted more than 30,000 H-1B petitions, which is more than one 3rd of the 85,000 allotment.
H-1B Season is Upon Us
Starting April 2, 2012, USCIS will start accepting H-1B applications with a validity date effective October 1, 2012. In the last three years, H-1B visa numbers expired, respectively, in January, December, and November. It is impossible to predict when the numbers will be exhausted this year so we recommend that our clients prepare and file their H-1B applications as soon as possible.
H-1B Cap Update
USCIS has reported that the H-1B master’s Cap has been reached. Therefore, employers petitioning for employees who have an advanced degree from an American university or college will now have their H-1B petitions counted against regular H-1B Cap. There are 65,000 available H-1Bs in the regular Cap. As of October 25, USCIS had receipted 46,200 petitions against the regular Cap.
U.S. Consulate General, Mumbai Resumes Interviews for H and L Visas
In March, 2011 the U.S. Consulate General in Mumbai announced a partial reduction in its visa operations. The Consulate suspended all new H and L visa appointments, directing applicants to other U.S. Consulates in India and the Embassy in New Delhi. This moratorium was attributed to the consulate building’s aging infrastructure; the Consulate was forced to shut down several interview windows, largely limiting its visa processing capacities. The Consulate recently reported that it had resumed interviews for new H and L visas. The first interview appointments were scheduled for September 6, 2011. Given that 65 percent of H-1B visas are issued to Indian applicants, this news will positively affect thousands of Indian nationals.