As of May 22, 2009 there has been approximately 45,700 H-1B cap-subject petitions filed with USCIS. Apparently, USCIS has received approximately 20,000 petitions for the “Master’s Cap.” Therefore, there are still close to 20,000 cap numbers available in the general pool. Individuals who are considering filing for H-1B status this year should, however, file their applications as quickly as possible.
New developments in the area of H-1B visas
Extensions beyond six years
USCIS has made it clear that if an individual is attempting to extend his/her H-1B status beyond six years based on the filing of a labor certification, the labor certification will expire unless an I-140 form is filed. Generally speaking, the filing of a labor certification prior to the expiration of five years of H-1B status will allow an individual to extend his/her H-1B status beyond six years. If the labor certification is approved, an I-140 must be filed within 180 days. If an I-140 is not filed during this time period, the labor certification can no longer be used to extend H-1B status.
If the H-1B beneficiary did not file a labor certification application prior to the end of the fifth year of H-1B status, an extension beyond six years can still be obtained if he or she has an approved I-140 and cannot file for adjustment of status due to a backlog in visa numbers. USCIS has announced that it will expedite I-140 applications under these circumstances.
On a related note, in order for a beneficiary to be eligible for I-485 portability, the underlying I-140 must be approved in addition to demonstrating that the adjustment of status application has been pending for more than six months.
Official termination
There has been a lot of activity in the area of what constitutes an official termination of an H1-B employee. At the annual AILA Conference in Vancouver, at a joint panel with USCIS and DOL, the statement was made that an official termination will not occur until the following four events occur:
– The employee is notified;
– USCIS is notified;
– The employer has made an offer to pay the beneficiary’s transportation to his/her home country; and
– The LCA has been withdrawn.
The requirement of withdrawing the LCA is a new development which is not supported by regulation or case law. In fact, there have been a number of recent cases on this point which do not mention the necessity of withdrawing the LCA. These cases also support our position that return transportation does not need to be paid. Rather, an offer to pay such transportation must be made to the employee. Our practice has always been to inform the employee that if he or she is leaving the United States on a permanent basis and can document his or her transportation costs, the employer will reimburse the H-1B beneficiary for those expenses. Recent case law supports this practice.
Our firm has revamped the way in which we assist employers in terminating H-1B status in order to be in full compliance with these developments.
FY2009 Cap-Subject H-1B Update
AILA InfoNet Doc. No. 08061261 (posted Jun. 12, 2008)
USCIS Service Center Operations has provided the following information regarding processing cases under the FY2009 H-1B cap:
1. Except for cases that were being reviewed as potential duplicate filings, all receipts have been issued for those cases selected in the random lottery. The CSC and VSC completed data entry on all selected cases on May 23, 2008, and mailing of all receipts was completed on May 24, 2008.
2. Cases that were thought to be duplicate filings are being hand reviewed to determine if they are true duplicates. USCIS has received approximately 500 petitions that are believed to be duplicates. However, some of these were submitted as “protective filings” due to courier delivery confirmation problems or where the petition was sent to an incorrect Service Center. Each will be reviewed and determined on a case-by-case basis. If the second submission was accompanied by an explanation of the reason for the second submission, there is a good chance of acceptance.
3. USCIS has determined that the number of petitions selected during the random selection process will be sufficient to meet the cap limit. Therefore, the use of the reserve/cushion will not be necessary this year. USCIS has begun to mail out rejections this week.
H AND L ADJUSTMENT APPLICANTS NO LONGER NEED I-485 RECEIPT NOTICES TO TRAVEL
In a new rule effective November 1, 2007, USCIS has removed the requirement that H and L adjustment applicants must travel with their receipt notice.
An adjustment applicant needs certain documentation in order to travel once the I-485 application has been filed. Advance Parole is the most common travel document used by adjustment applicants. Adjustment applicants who are on H or L status, however, can travel without adjustment of status under certain conditions. Before the new rule, H and L adjustment applicants needed to have their I-485 receipt notice at the time they re-entered the United States. This proved to be challenging in that it has been taking USCIS a number of weeks, if not months, to issue receipt notices thereby limiting travel during this period of time. Under the new rule, if a person is maintaining H or L status he or she can travel without first obtaining the I-485 receipt notice.
The new rule will help thousands of H and L adjustment applicants who seek to travel after they have filed for adjustment of status but before they receive the receipt notice.
Business Community Remains Virtually Silent on Comprehensive Immigration Reform
The Senate “compromise”comprehensive immigration reform proposal would radically change employment-based immigration law in the United States. A point system would replace the current approaches to permanent residence, including labor certification, national interest waiver, extraordinary ability applications, etc. In addition, the bill would strip the “dual intent”” provision regarding H-1B visa applications, which would make it much more difficult to obtain H-1B status. Also a new fee of $5,000 will be added to the H-1B application process. Furthermore, the bill does nothing to increase the availability of H-1B visas or eliminate excessive backlogs in employment-based permanent resident processing.
In the face of these changes, the business community has remained relatively silent. Our office encourages our clients, and other members of the business community, to make their voice heard by contacting their elected representatives in Washington and urging them to amend the bill to be more favorable to American employers.
The American Immigration Lawyers Association website (http://www.aila.com)/) provides an easy vehicle for contacting senators and congresspeople. Now is a critical time for employers to act in favor of employment-friendly immigration reform.
H-1B Master’s Count is Close to 20,000
USCIS reported that as of April 30, 2007, it had received 19,887 applications towards the 20,000 H-1B Master’s cap. By the time you read this posting the cap has, in all probability, been reached.
H-1B Master’s Cap Not Yet Reached
USCIS announced on April 10, 2007 that the cap of 20,000 H-1B visas for aliens holding a master’s degree or higher from a U.S. institution has not yet been reached. On April 2 and 3, approximately 12,989 total master’s cap cases were filed. USCIS will provide updates as the processing continues for the FY 2008 H-1B cap cases.
USCIS Releases Preliminary Count of H-1B Filings
Immigration (USCIS) issued a preliminary tally of H-1Bs received on April 2nd and 3rd. Immigration has indicated that the counting continues. Immigration initially reported that they had received 150,000 pieces of mail on April 2nd and April 3rd. They have downgraded this number to 133,000. As of Wednesday April 4th, 28,052 of the cases sorted were H-1B petitions subject to the general H-1B cap, and 4,703 cases were to be applied to the master’s degree cap. Immigration will continue to update these figures as it sorts through the mail. It is widely believed that immigration received more than the maximum number of H-1B visas allowed under both caps and that there will be a lottery to determine which applications receive a cap number.
USCIS Announces Direct Filing of I-129 and I-539 Applications
USCIS has announced that, effective April 2, 2007, all Forms I-129 and I-539 are to be filed directly with either the Vermont Service Center or the California Service Center, depending on where the employment will take place. This is a change from the past practice of filing all I-129 applications with Vermont.
In light of the fast-approaching H-1B season, and the possibility that the H-1B quota will be quicklly exhausted, applications must be filed in the correct location.
H-1B Season Starts April 1, 2007
On April 1, 2007, USCIS will start accepting H-1B visa applications for fiscal year 2008. By regulation, USCIS can start accepting H-1B applications against the 2008 H-1B cap six months in advance which translates to Monday, April 2, 2007. People have been speculating as to when the cap will be exhausted. Estimates range from April 16 to the end of May.
H-1B applications approved under the 2008 cap will become effective on the first day of the next fiscal year which is October 1, 2007. Any company interested in pursuing a new H-1B visa on behalf of a current or potential employee should act immediately.
In addition, USCIS has indicated that it intends to increase the filing fee for H-1B visas to $320. This does not include the fraud fee or training fee.
Finally, H-1B transfers and H-1B applications filed by exempt employers are not subject to the H-1B cap.