Immigration Lawyers Blog

The Employ American Workers Act (EAWA) was enacted to make sure that employers receiving Federal Troubled Asset Relief Program (TARP) funding are not displacing U.S. workers. Among the employers receiving (or that have received) TARP funding are primarily financial institutions, mortgage brokerage firms, and investment firms. The USCIS has issued guidance for these employers with respect to filing H-1B petitions. Under EAWA, any employer receiving TARP funding is considered H-1B dependent, which is a label that subjects the employer to recruitment requirements and attestations regarding displacement. In its guidance, the USCIS instructs these employers regarding how to answer certain questions on the H-1B forms. Specifically, the USCIS states that Question A.1.d. should be “No” if repayment has occurred and documentation of repayment shall be supplied to the USCIS at the time of filing the petition. Please note that EAWA applies only to new-hire H-1B petitions and not to those for change of status or extension of status. If you have any questions regarding EAWA, TARP funding or H-1B petitions, please don't hesitate to contact our office.

The H-1B cap filing period for fiscal year 2011 opens April 1, 2010, which is nearly 30 days away. If you'd like our assistance in preparing your H-1B petition, we advise that you get started now. There are built-in processes that take up time, so it is better not to wait. For example, the Labor Condition Application (LCA), which is submitted to the Department of Labor (DOL) and included in the H-1B petition, is taking a minimum of 7 days to be certified by the DOL. This must occur in order for the H-1B petition to be filed. With nearly 30 days left, this process alone will take at least 1 week. That leaves 3 weeks for the rest of the process to occur by April 1, 2010. We will be filing all H-1B cap petitions on March 31, 2010 for an April 1, 2010 arrival at the USCIS to ensure our clients have the best shot at getting an H-1B number. As you may know, there are 65,000 slots allocated for H-1B's each year, with an additional 20,000 slots for holders of U.S. Master's or higher degrees. It is a first-come, first-serve system and April 1 is the first day to try for a number. Please contact us as soon as possible if you need our assistance.

USCIS has indicated that unused H-1B1 numbers from FY2010, which pertain to Singaporean and Chileans, will roll over to the FY2011 cap. Each year, 6,800 H-1B slots are reserved for individuals from Singapore and Chile. In FY2010, only 129 of those numbers were used. This means that nearly 6600 additional cases of this nature will be accepted for the FY2011 filing period. Please note that although the FY2010 regular cap has closed, the USCIS has indicated that it will continue to accept H-1B1 petitions for nationals of Singapore and Chile since so few numbers have been used. If you need our assistance with this type of petition, please don't hesitate to contact our office.

On 02/16/2010, the U.S. Immigration and Customs Enforcement (ICE) updated its list of approved schools for student visas (F-1) and exchange visitor visas (J-1). If you are searching for a particular school, note that the list is alphabetical and provides the following information: institution name, campus name, city/state and date approved. The list can be found at: http://www.ice.gov/doclib/sevis/pdf/ApprovedSchools.pdf.

Effective January 19, 2010, all applicants for nonimmigrant visas at U.S. Consulates in India must use the Department of State's new web-based Form DS-160. This form replaces the DS-156, DS-157 and DS-158, which are no longer accepted in India. More information about this change can be found at: http://www.usembassy.gov/.

The FY2011 H-1B cap filing period will open 04/01/2010 (for a 10/01/2010 start date). Employers that sponsor foreign nationals for H-1B temporary worker status must show that the proffered position is a "specialty occupation," which means that it requires a minimum of a Bachelor's degree (or equivalent experience) for entry. The foreign national must also hold the relevant Bachelor's degree or higher to serve in the position.

As you may know, there is a limited number of H-1B slots each year (known as the H-1B quota). Currently, there are 65,000 slots afforded to foreign nationals with a Bachelor's degree or higher and 20,000 afforded to U.S. Master's degree holders. In prior years, as early as 2008, the quota was reached within days of April 1. Last year, the quota remained open until December 21, 2009 due to the poor economy and lack of H-1B filings. There is no telling what will occur this year as the results are often unpredictable. Accordingly, we plan to file all H-1B petitions on March 31, 2010 for an April 1, 2010 arrival at the immigration service. This leaves under 3 months to prepare these petitions. Please contact our office as soon as possible if you'd like to file an H-1B petition under this year's cap. We'd be pleased to assist you with this process.

Today the USCIS issued guidance on the employer/employee relationship for purposes of H-1B specialty occupations. Whether a sufficient employer/employee relationship exists depends on the employer's right to control the means and manner in which the work is performed. The USCIS is supposed to review a variety of factors (i.e. a totality of the evidence presented in the H-1B petition) to determine whether a valid employer/employee relationship exists. Among the factors include: the petitioner's right to control the beneficiary; the supervision provided; the petitioner's control of daily work and work product; and the petitioner's right to hire, pay and fire the H-1B worker.

The USCIS has compiled and published the 2008 statistics for the H-1B category. The highlights include: (1) 5% decrease in the number of H-1B petitions filed in comparison to 2007; (2) 2% decrease in the number of H-1B petitions approved in comparison to 2007; (3) 54% of H-1B petitions approved for 2008 were for workers born in India; (4) 2/3rds of the petitions were for workers between 25 and 34 years old; (5) 43% of workers had Bachelor's degree, 41% had Master's, 11% had a doctorate, and 5% had a professional degree; (6) 50% of H-1B petitions approved were for computer-related occupations; and (7) the median annual salary was $60,000.

On December 21, 2009, the USCIS announced the closing of the H-1B cap for this fiscal year. USCIS will reject cap-subject petitions for fiscal year 2010 received after December 21, 2009 USCIS will apply a computer-generated random selection process to all petitions received on December 21, 2009. The next date to file an H-1B cap petition is April 1, 2010 for an October 1, 2010 start date (fiscal year 2011). Please contact our office if you'd like to begin the process for fiscal year 2011.

The USCIS has announced that it will conduct 25,000 new site visits of H and L employers/petitioners during the fiscal year that started on 10/01/2009. This marks a 5-fold increase in the number of site visits conducted during the last fiscal year. This increase is in response to a 2008 study concluding that 20% of H-1B applications involved fraud or other violations. In order to be prepared for a USCIS site visit, we suggest reviewing all the files of foreign workers to make sure they contain the necessary documentation. We also think it prudent to ensure that each worker is performing the duties as described at the location listed in the petition and that the proper (prevailing) wage is being paid. It is also a good idea to have policies and procedures in place beforehand for responding to these USCIS visits so that all employees know what to do and what to expect when the USCIS comes knocking.

On December 4, 2009, the USCIS announced that 61,100 of 65,000 regular cap petitions have been received. In addition, approximately 20,000 U.S. Master's or higher petitions (i.e. advanced degree petitions) have been received. Any advanced degree petitions received from here on out will count toward the regular cap of 65,000. The USCIS is still accepting petitions at this time, but it is advised that any H-1B petitions be filed as soon as possible as the USCIS could announce that the cap is closed at any time.

At a recent Department of Homeland Security (DHS) function, the DHS explained the three types of site visits currently being conducted:

1. Risk Assessment

This is a joint program between the USCIS and the Immigration and Customs Enforcement (ICE) and applies to any type of benefit program, including family and employment-based immigration. Applications and petitions are chosen randomly, typically following approval, and visits are conducted to identify potential fraud.

2. Targeted

These visits occur when fraud is suspected. During the visit, many questions may be asked. Advance notice, including notice to any immigration attorneys, is supposed to occur before the visit.

3. Administrative

These are specific to H-1Bs and religious worker petitions. They are generally conducted by USCIS contractors who may or may not be well versed in immigration law. For H-1B visits, specific questions are asked involving the employer, wage, and duties. Employers are chosen at random and typically only receive one visit per site. Religious worker visits are performed in accordance with the religious worker regulations.

On November 27, 2009, the USCIS announced that 58,900 of 65,000 regular cap petitions have been received. In addition, approximately 20,000 U.S. Master's or higher petitions (i.e. advanced degree petitions) have been received. Any advanced degree petitions received from here on out will count toward the regular cap of 65,000. The USCIS is still accepting petitions at this time, but it is advised that any H-1B petitions be filed as soon as possible as the USCIS could announce that the cap is closed at any time.

On October 30, 2009, the USCIS announced that 53,800 of 65,000 regular cap petitions have been received. In addition, approximately 20,000 U.S. Master's or higher petitions (i.e. advanced degree petitions) have been received. Any advanced degree petitions received from here on out will count toward the regular cap of 65,000. The USCIS is still accepting petitions at this time, but it is advised that any H-1B petitions be filed as soon as possible as the USCIS could announce that the cap is closed at any time.

The H-1B category is a temporary status available to specialty workers who hold a minimum of a Bachelor’s degree or equivalent experience and who will be working in positions that require the same. The H-1B category is capped at 65,000 petitions per year worldwide plus 20,000 additional petitions for those who earned a Masters degree or higher from a U.S. educational institution. The latest H-1B cap count came out September 25, 2009 and reports that 46,700 regular cap petitions and 20,000 Master’s cap petitions have been filed with the USCIS. The agency will continue to receive both types of cap petitions until all cap numbers have been used.

Employers pay a $500 anti-fraud fee as part of each H-1B petition. This fee has been used recently by the United States Citizenship and Immigration Services (USCIS) to hire contractors to perform site visits to petitioning entities to check the status of workers. One such visit has been recounted to practitioners in the field as a warning of what’s to come.

An investigator phoned the H-1B employer and asked for the company’s attorney who was not available. The lawyer called the investigator back who told him that he is a federally certified private investigator doing background checks on government employees for the Department of Homeland Security’s (DHS) Fraud Detection Program. He stated that these types of visits are usually undergone without warning.

The crux of this investigation revolved around the investigator’s concerns about the attorney signing an H-1B petition for the employer (note: this is actually untrue – the attorney signed as the attorney only). Two items were of interest to the investigator. First, whether the company was a operating business and second, whether the employee/beneficiary was a legitimate worker. He was investigating for two kinds of fraud: a worker who lies on a petition, claiming to work for an employer that he doesn’t work for and/or an employer lying on a petition. He wanted to meet with HR to confirm the employee’s information and also wanted photos of the entity to prove it exists. The investigator mentioned that 28 cities will be targeted with investigations and that this employer was randomly selected. If anything is uncovered in the investigation, the information will be turned over to Immigration and Customs Enforcement (ICE) or DHS.

The H-1B category is a temporary status available to specialty workers who hold a minimum of a Bachelor’s degree or equivalent experience and who will be working in positions that require the same. The H-1B category is capped at 65,000 petitions per year worldwide plus 20,000 additional petitions for those who earned a Masters degree or higher from a U.S. educational institution. The latest H-1B cap count came out August 14, 2009 and reports that 45,000 regular cap petitions and 20,000 Master’s cap petitions have been filed with the USCIS. The agency will continue to receive both types of cap petitions until all cap numbers have been used.

As of June 26, 2009, the US Citizenship and Immigration Services (USCIS) has updated its tally for H1-B petition filings for the fiscal year beginning October 1st, 2009. To date, the agency has collected over 44,800 H-1B cap petitions. The US Congress has capped the number of potential filings at 65,000 per year. Thus far, the USCIS has collected at least 20,000 alien petitions from individuals with advanced degrees towards the 20,000 advanced degree cap. Although this particular cap has been reached, the agency plans to continue taking petitions because, statistically, a significant percentage of those 20,000 applications will be invalidated or otherwise disallowed or can be counted against the general 65,000 pool of petitions.

With 20.200 slots left, we encourage H1-B applicants to contact our office to ensure the H-1B petition is filed while the numbers are still available.