Green Card & Visa News » Uscis

H-1B Visa Cap Update

Tushar Mathur — Mon, 14 May 2012 22:27:00 +0000

FY 2013 H-1B Cap Count - as released by USCIS

Cap Type	Cap Amount	Cap Eligible Petitions	Date of Last Count
H-1B Regular Cap	65,000	36,700	05/11/2012
H-1B Master’s Degree Exemption	20,000	14,800	05/11/2012

Recent Decision on National Interest Waiver

Tushar Mathur — Thu, 10 May 2012 15:09:00 +0000

Foreign professionals and researchers applying for employment-based permanent residence status may consider obtaining an
national interest waiver (NIW).
Normally, a foreign worker who wishes to apply for a green card by
filling a U.S.
job opening must obtain a Certified Permanent Labor Application (“Labor Certification”).
The Labor Certification is to show that the employer cannot find a U.S. worker who
is qualified, willing and ready to do the job.
Applicants who apply for a national interest waiver are requesting that
the Labor Certification be waived because it is in the interest of the United States.

Unfortunately, the jobs that qualify for a national
interest waiver are not defined by statute. National interest waivers are
usually granted to those who have exceptional ability and whose employment in
the United States
would greatly benefit the national interest. Applicants seeking a national interest waiver may self-petition (they do not
need an employer to sponsor them) and may file their green card application directly
with USCIS.

The legal standard for adjudicating an NIW petition was clarified by an Administrative
Appeals Office (AAO) decision, Matter of New York Dept. of
Transportation in 1998. In NYDOT, the
Beneficiary possessed a master’s degree in civil engineering and was being
petitioned to provide professional engineering services for the rehabilitation,
replacement, maintenance and inspection of bridges. The AAO cited three factors
that must be considered when evaluating a request for a national interest
waiver.

First, it must be shown that the foreigner seeks employment in an area of
substantial intrinsic merit. Eligibility is not established solely by showing
that the beneficiary’s field of endeavor has intrinsic merit. In the NYDOT
case, substantial intrinsic merit was found. The importance of proper
maintenance of the state’s bridges was sufficient to meet this first criteria.

Secondly, the petition must prove that the proposed benefit will be national in scope. In the NYDOT
case, while the alien’s employment in NYDOT was limited to the local area, New York‘s bridges and
roads connected the state to the national transport system. Because the proper
maintenance and operations of bridges and roads served the interests of other
regions as well, the benefit was national in scope.

Finally, the petitioner
must demonstrate that the national interest would be adversely
affected if a labor certification were required for the alien. The engineer
in NYDOT failed to meet this criteria because his contributions did not stand out among his peers, and therefore, his petition did not warrant
a waiver of the Labor Certification.

A recent Administrative Appeal Office (AAO) decision from
November 2011 provided some additional guidelines on the requirements of the
NIW application. An NIW petition filed
by a post doc research scientist in the field of nanoscience and nanotechnology
was denied by the USCIS
Texas Service
Center. The AAO reversed the denial on appeal mostly
because the TSC failed to give proper evidentiary weight to the scientist’s
influential published work in his field.
Although he only had four publications, they were published in the well-known Journal of the American Chemical Society and were
cited more than 400 times by his peers.

The AAO also noted that the legislature
history suggested that the standard of adjudication for NIW applications should
be applied as flexible as possible.
According to the AAO, it does not matter that the petitioner’s articles
were published when he was still a graduate student, which is an issue for
EB-1B outstanding researcher petitions.
Finally, the AAO also noted that Congress’s intention is to grant national interest waiver on the basis
of
the merits of the individual applicant rather than the importance of a particular field of work; the nonscientist met his legal burden
of proof for a national interest waiver.

In sum, the requirements for a national interest waiver are stringent. But for those who meet the basic requirements, a waiver can substantially speed up the green card application process.

H1B Visa Cap Update

Tushar Mathur — Tue, 01 May 2012 15:31:00 +0000

FY 2013 H-1B Cap Count - as released by USCIS

Cap Type	Cap Amount	Cap Eligible Petitions	Date of Last Count
H-1B Regular Cap	65,000	29,200	04/27/2012
H-1B Master’s Degree Exemption	20,000	12,300	04/27/2012

US H-1B visas may not last

Tushar Mathur — Tue, 01 May 2012 05:38:00 +0000

US Citizenship & Immigration Services (USCIS) has announced that, as of 13 April 2012, it has already received 20,600 H-1B cap-subject petitions. Additionally, they have received 9,700 H-1B visa petitions for foreigners with US advanced degrees.

This is a significant increase from the last count of 25,600 only four days earlier. The rate of filings for April has increased markedly for FY 2013 when compared to FY 2012. However, the rate of filings is still quite low compared to say 2008 when the H-1B visa cap was reached in the first week of the application season. Before the economic crisis later in the same year the H-1B visa quota was always reached very quickly.

USCIS officially began accepting the applications for the popular H-1B visa program from 2 April 2012 for positions with a start date of 1 October 2012 or later. Each year 65,000 visas are available for regular H-1B visa cap petitions for graduate level foreign workers in professional or specialty occupation positions. Also, an additional 20,000 visas are made available for US Master or higher H-1B cap petitions for those with advanced degrees awarded at US universities.

Therefore, employers considering filing H-1B applications are encouraged to expedite cases so that they may be filed as soon as possible. Once the visa cap has been reached, USCIS will stop accepting H-1B petitions for FY 2013 and will not accept new applications until 1 April 2013.

The IT industry is still “the greatest mover” for the H-1B visa according to USCIS press secretary Christopher Bentley. He noted that US employers are “requiring workers from India and China in greater proportions”.

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USCIS reports increase in H-1B visa applications compared to last year

Tushar Mathur — Thu, 26 Apr 2012 09:20:00 +0000

US Citizenship and Immigration Services (USCIS) reported a large increase in skilled foreign worker H-1B visa applications during the first week of this year’s application season. USCIS has received 25,600 petitions for H-1B visas since 2 April 2012, nearly twice as many as it received for the entire first month of last year’s application period.
USCIS officially began accepting H-1B applications last week for positions with a start date of 1 October 2012 or later. The visas are popular for those in IT occupations and engineering.

“Given the improved economy…it would not be surprising to see the quota filled very early this year,” said Stuart Anderson, executive director of the National Foundation for American Policy, a group that studies the H-1B program.

There are a total of 85,000 new H-1B visas made available each government fiscal year. This consists of 65,000 new H-1B visas available for graduate level overseas workers in professional or specialty occupation positions, and an additional 20,000 visas available for those with an advanced degree from a US academic institution.

Last week, USCIS received 17,400 H-1B applications in the general category and 8,200 in the advanced degree category. This is compared to last year’s first week of H-1B applications wherein the government received 5,900 H-1B petitions counting toward the 65,000 cap, and about 4,500 petitions for the 20,000 advanced degrees cap.

Demand for the skilled-worker visas has fluctuated in past years and many say the increase in H-1B visa applications in such a short period of time this year may be a sign of a recovering US economy.
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H1B Visa Cap Update

Tushar Mathur — Tue, 24 Apr 2012 16:24:00 +0000

As of 04/20/2012, the USCIS has received 25,000 regular H-1B cap cases and 10,900 advanced degree cap cases.

Organisations warn US of employers substituting L-1 visa for H-1B

Tushar Mathur — Thu, 19 Apr 2012 05:22:00 +0000

This week the US began accepting applications for the popular H-1B visa program. While the H-1B visa has been a popular visa among IT workers for a long time, critics are saying that the L-1 visa is now being used improperly in place of the H-1B visa.

The L-1 visa is used for intra-company transfers of employees from foreign offices to US offices.

The labor union AFL-CIO and the IEEE-USA professional organisation sent letters to Washington DC this week warning the government against undermining US worker protections in the L-1 visa by accepting changes recommended by more than 60 firms and organizations. The AFL-CIO and IEEE-USA claim that if these changes are passed then the US runs the risks of expanding the visa’s use in offshore outsourcing.

Last month several IT tech firms in India sent a letter to President Obama asking him to relax the L-1 visa rules now used to define “specialized knowledge.” They also claimed that there are “unprecedented delays and uncertainty” when applying for L-1 visas.

Under current immigration rules, “specialized knowledge” is defined as “beyond the ordinary and not commonplace within the industry.” In other words, the employee must be more than simply skilled or familiar with the employer’s interests.

The definition was set up to keep companies from using the L-1 visa as a substitute to the H-1B visa. Critics claim that offshore companies are using the L-1 for the same reason they use the H-1B visa in order to move work overseas. While larger overseas IT firms are claiming that the US is rejecting higher amounts of visa applicants because immigration officials are interpreting “specialized knowledge” in ways that are outside the law.

USCIS has said that they are currently reviewing the guidance it gives applicants regarding “specialized knowledge” and whether any changes are needed.

The IEEE-USA maintains that Congress was “quite clear that the strict enforcement of a strong ‘specialized knowledge’ requirement would exclude from the L-1 visa program outsourcing companies whose business models are based on workers acquiring skills, knowledge and contacts in the United States for the purpose of moving American jobs overseas.”

In the letter IEEE-USA sent to Alejandro Mayorkas USCIS, the organisation points out that some of the companies seeking changes in the L-1 visa “specialized knowledge” definition are outsourcing firms.
Also, while the H-1B visa has a cap of 85,000 visas per fiscal year, the L-1 visa isn’t subject to a cap or the prevailing wage requirement applied to the H-1B.

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H-1B Visa Cap Update

Tushar Mathur — Wed, 18 Apr 2012 02:26:00 +0000

As of 04/13/2012, the USCIS has received 20,600 regular H-1B cap cases and 9,700 advanced degree cap cases. About 1/3 of the 65,000 annual regular visa cap has been used, and almost 1/2 of the 20,000 advanced degree visa cap has been used. At this rate, all available H-1B visa numbers will be used up soon, possibly within a few weeks.

H-1B Cap Update

Tushar Mathur — Thu, 12 Apr 2012 15:03:00 +0000

USCIS has received approximately 17,400 regular cap (bachelor’s degree) H-1B petitions, and approximately 8,200 advanced degree petitions, as reported by USCIS on April 9, 2012.

May 2012 Visa Bulletin – Retrogression in EB-2 – Predictions Added

Tushar Mathur — Mon, 09 Apr 2012 04:22:00 +0000

The State Department has recently released the May 2012 Visa Bulletin. The following are the highlights:

As predicted by the Department of State, the EB-2 India and China cutoff dates have retrogressed to August 15, 2007, as a result of large number of filings in recent months. No forward movement is expected for these two countries until the October 2012 Visa Bulletin. The USCIS will continue to accept and pre-adjudicate I-485 applications for applicants with current priority dates through the end of April.
There are slow movements for EB-3 categories.
FB-1 China, India and “All Other Countries” all move forward by one (1) month to May 1, 2005.
FB-2A China, India, Philippines and “All Other Countries” all move forward by five (5) weeks to November 15, 2009
FB-2B China, India and “All Other Countries” move forward by five (5) weeks to February 22, 2004.

For the first time, DOS also included specific predictions for the coming months as follows:

VISA AVAILABILITY IN THE COMING MONTHS
FAMILY-sponsored categories (monthly movements) Worldwide dates:
* F1: four to six weeks
* F2A: up to two and one half months
* F2B: three to six weeks
* F3: three to six weeks
* F4: three to five weeks

EMPLOYMENT-based categories (monthly)
EB-1: Current
EB-2:
* Worldwide: Potential need for cut-off date to be established
* China and India: Potentially “Unavailable”
EB-3:
* Worldwide: three to five weeks
* China: up to six weeks
* India: up to two weeks
* Mexico: three to five weeks
* Philippines: three to five weeks
EB-4: Current
EB-5: Current