Immigration Lawyers Blog

On November 23, 2011, the USCIS announced that it has received enough H-1B petitions to reach the 65,000 cap for FY2012. November 22, 2011 is the final date for receipt of new H-1B petitions requesting an employment start date in FY2012. Therefore, any petitions received after November 22, 2011 will be rejected. USCIS will continue to accept H-1B cases that are not subject to the FY2012 cap, including the following petitions:

• H-1B extension of status.;
• H-1B change of employer;
• H-1B amendments; and
• H-1B concurrent employment.

On April 1, 2012, USCIS will begin accepting new H-1B petitions for FY2013 as it releases a new set of H-1B numbers, including 65,000 newly available numbers and an additional 20,000 for applicants with U.S. Master’s degrees or higher. Petitions filed under the new FY2013 H-1B cap will have an October 1, 2012 start date. For more information on obtaining a FY2013 H-1B number, please contact our office.

This is another reminder that FY2012 H-1B numbers are moving very quickly and the cap of 65,000 will likely be reached by the end of the month. As of Nov. 14, 2011, USCIS has received approximately 56,300 Bachelor’s degree petitions towards the 65,000 regular H-1B cap. Meanwhile, the cap of 20,000 U.S. Master’s degree petitions has already been met. As such, H-1B Master’s degree petitions will now also be counted against the regular H-1B cap. We therefore anticipate the remaining numbers to go quickly.

As such, employers are strongly urged to file H-1B petitions on behalf of prospective candidates as soon as possible. Such individuals may include those currently on student visas who are employed temporarily under optional practical training, individuals living abroad, or individuals seeking to change their current status (TN, L-1, H-4, etc). If employers fail to file petitions on behalf of such individuals before the FY2012 cap is reached, they risk not being able to employ the individual until new H-1B numbers are released on October 1, 2012. Therefore, please contact our office for assistance in filing a timely H-1B petition before the current H-1B numbers are gone.

As of Nov. 14, 2011, USCIS has received approximately 56,300 Bachelor’s degree petitions towards the 65,000 regular H-1B cap. Meanwhile, the cap of 20,000 U.S. Master’s degree petitions has already been reached, and USCIS will continue to accept H-1B petitions for FY2012 until the cap of 65,000 is met.

This is a reminder that employers should file H-1B petitions on behalf of prospective candidates as soon as possible as the remaining H-1B numbers will likely be filled by the end of the month. Please contact our office for assistance.

As of Nov. 2, 2011, USCIS has received approximately 50,800 Bachelor’s degree petitions towards the 65,000 regular H-1B cap. Meanwhile, the cap of 20,000 U.S. Master’s degree petitions has already been reached, and USCIS will continue to accept H-1B petitions for FY2012 until the cap of 65,000 is met.

The remaining H-1B numbers will likely be filled within the next few months. We therefore strongly advise that employers file H-1B petitions on behalf of prospective candidates as soon as possible. Please contact our office for assistance.

As of October 28, 2011, USCIS has received approximately 49,200 Bachelor’s degree petitions towards the 65,000 regular H-1B cap. Meanwhile, the cap of 20,000 U.S. Master’s degree petitions has already been met. As such, H-1B Master’s degree petitions from here on out will be counted against the regular H-1B cap. USCIS will continue to accept H-1B petitions for FY2012 until the cap of 65,000 is met.

With only 15,800 H-1B slots left, we anticipate the cap being reached within the next few months. As such, employers are strongly urged to file H-1B petitions on behalf of prospective candidates as soon as possible. Such individuals may include those currently on student visas who are employed temporarily under optional practical training, individuals living abroad, or individuals seeking to change their current status (TN, L-1, H-4, etc). If employers fail to file petitions on behalf of such individuals before the FY2012 cap is reached, they risk not being able to employ the individual until new H-1B numbers are released on October 1, 2012. Therefore, please contact our office for assistance in filing a timely H-1B petition before the current H-1B numbers are gone.

As of October 21, 2011, the USCIS has received approximately 46,200 Bachelor's degree petitions and 20,000 U.S. Master's degree petitions. While the quota of 20,000 U.S. Master's degree petitions has been met, USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor's degree petitions is met.

As of October 14, 2011, the USCIS has received approximately 43,300 Bachelor's degree petitions and 19,600 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor's degree petitions and 20,000 U.S. Master's degree petitions is met.

As of October 7, 2011, the USCIS has received approximately 41,000 Bachelor's degree petitions and 19,100 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor's degree petitions and 20,000 U.S. Master's degree petitions is met.

As of September 23, 2011, the USCIS has received approximately 36,300 Bachelor's degree petitions and 17,700 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor's degree petitions and 20,000 U.S. Master's degree petitions is met.

As of August 26, 2011, the USCIS has received approximately 29,000 Bachelor's degree petitions and 15,800 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor's degree petitions and 20,000 U.S. Master's degree petitions is met.

As of July 29, 2011, the USCIS has received approximately 22,700 Bachelor's degree petitions and 13,800 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor's degree petitions and 20,000 U.S. Master's degree petitions is met.

As of July 22, 2011, the USCIS has received approximately 21,600 Bachelor's degree petitions and 13,300 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor's degree petitions and 20,000 U.S. Master's degree petitions is met.

As of July 15, 2011, the USCIS has received approximately 20,500 Bachelor's degree petitions and 12,800 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor's degree petitions and 20,000 U.S. Master's degree petitions is met.

The USCIS has issued an updated cap count for its last count on July 1, 2011.

As of July 1, 2011, the USCIS has received approximately 19,000 Bachelor's degree petitions and 12,200 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor's degree petitions and 20,000 U.S. Master's degree petitions is met.

As of July 1, 2011, the USCIS has received approximately 18,400 Bachelor's degree petitions and 11,900 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor's degree petitions and 20,000 U.S. Master's degree petitions is met.

As of June 1, 2011, the USCIS has received approximately 13,600 Bachelor's degree petitions and 9,300 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

As of May 26, 2011, the USCIS has received approximately 13,100 Bachelor's degree petitions and 9,000 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

As of May 20, 2011, the USCIS has received approximately 12,300 Bachelor's degree petitions and 8,500 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

As of May 13, 2011, the USCIS has received approximately 11,200 Bachelor's degree petitions and 7,900 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

As of April 15, 2011, the USCIS has received approximately 7,100 Bachelor's degree petitions and 5,100 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2012 until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

On April 1, 2011, the USCIS started accepting H-1B applications for FY2012, the next government fiscal year which starts on October 1, 2011. The current law provides an annual H-1B cap of 65,000 per fiscal year, with an additional 20,000 reserved for H-1B applicants with U.S. master’s degrees or higher. The H-1B cap for FY 2011 was met in January 2011.

As of April 7, 2011, USCIS has received approximately 5,900 H-1B petitions toward the 65,000 cap and approximately 4,500 petitions toward the 20,000 advanced degree cap. The USCIS will continue to accept FY2012 H-1B cap cases until the quota is met.

On April 1, 2011, USCIS will begin accepting FY 2012 H-1B cap petitions with employment start dates beginning October 1, 2011. Cases will be considered accepted on the date that it is received by USCIS, not the postmarked date. Meanwhile, USCIS will continue to accept H-1B cases that are not subject to the numerical cap, including the following petitions:

• H-1B extension of status.;
• H-1B change of employer;
• H-1B amendments; and
• H-1B concurrent employment.

For assistance in filing a timely FY 2012 H-1B petition by April 1, 2011, please contact our office

The Department of Homeland Security (DHS) is proposing a rule that will require employers who are filing petitions on behalf of individuals subject to the H-1B cap to first file electronic registrations with USCIS during a designated registration period. H-1B petitions are subject to a numerical cap of 65,000 per fiscal year and an additional 20,000 H-1B petitions are set aside for individuals who have earned a U.S. masters’ degree or higher. Based on the electronic registration information, USCIS will be able to determine whether the H-1B cap will be reached by the first day that H-1B petitions are accepted for filing for a particular fiscal year. If the cap is not reached, USCIS would then notify the registered employers of their eligibility to file an H-1B petition and will continue to accept and select registrations until the H-1B cap is reached. If USCIS determines that the H-1B cap will be reached by the first day that H-1B petitions may be accepted for filing for a particular fiscal year, it will close the registration before the said date and randomly choose registered petitioners to meet the allotted cap. Remaining registrations may be placed on a waitlist should the H-1B applicants that were originally selected be denied. Those who are not waitlisted will be notified of their inability to file an H-1B petition for that particular fiscal year. Under this proposed rule, USCIS hopes this registration and selection process will save the prospective employer from investing the time and resources in filing an H-1B without knowing whether the cap has been reached. Additionally, it hopes this new process will reduce the administrative strain on service centers handling H-1B cases.

DHS seeks comments to the proposed registration rule. Written comments may be submitted on or before May 2, 2011 via e-mail at rfs.regs@dhs.gov and include DHS Docket No. USCIS-2008-0014 in the subject line of the message.

On January 27, 2011, the USCIS announced that it has received enough H-1B petitions to reach the 65,000 cap for FY2011. January 26, 2011 is the final date for receipt of new H-1B petitions requesting an employment start date in FY2011. Therefore, any petitions received after January 26, 2011 will be rejected. Those petitions received on January 26, 2011 will be subject to a computer-generated lottery system that will randomly select the remaining petitions to meet the cap. Petitions not selected will be rejected and returned along with the filing fee.

USCIS will continue to accept H-1B cases that are not subject to the FY2011 cap, including the following petitions:

• H-1B extension of status.;
• H-1B change of employer;
• H-1B amendments; and
• H-1B concurrent employment.

On April 1, 2011, the USCIS will begin accepting new H-1B petitions for FY2012 as it releases a new set of H-1B numbers, including 65,000 newly available numbers and an additional 20,000 for applicants with U.S. Master’s degrees or higher. Petitions filed under the new FY2012 H-1B cap will have an October 1, 2011 start date. For more information on obtaining a FY2012 H-1B number, please contact our office.

As of January 14, 2011, the USCIS has received approximately 60,700 Bachelor's degree petitions and the allotted 20,000 H-1Bs for U.S. Master's degree petitions has been met. The quota of 65,000 Bachelor’s degree petitions will soon be reached so it is imperative that you file your H-1B petition immediately before the H-1B numbers are reached for FY2011.

Please note that on April 1, 2011, the USCIS will start accepting H-1B applications for FY2012, the next government fiscal year which starts on October 1, 2011. As noted above, the current law allows only 65,000 new H-1B “numbers” per fiscal year, with an additional 20,000 reserved for H-1B applicants who have Master’s or PhD degrees from US institutions. If you have employees whose current work authorization will expire prior to October 1, 2011, or candidates who need H-1B sponsorship for an H-1B “number,” please contact our office so we can assist you in getting the process started.

As of December 31, 2010, the USCIS has received approximately 57,300 Bachelor's degree petitions and 20,000 U.S. Master's degree petitions. While the 20,000 H-1Bs allotted for U.S. Master’s degree petitions has been reached, the USCIS will continue to accept H-1B petitions for FY2011 until the quota of 65,000 Bachelor’s degree petitions is met. As such, the quota will soon be reached as there are only 7,700 H-1B petitions still available for approval. Please contact our office for immediate assistance in filing your H-1B petition before the H-1B numbers are reached for FY2011.

A computer consulting company in Newark, New Jersey has been ordered to pay $638,449 in back wages and interest to 67 workers and civil penalties of $126,778 for failure to comply with H-1B provisions. As a computer consulting business, the company sponsored H-1B employees to work as programmer analysts at various client sites in the U.S., but failed to provide notice of the filing of labor condition applications (LCAs) at each worksite where the H-1B worker would be employed and took action against H-1B workers for early cessation of employment. Pursuant to H-1B regulations, a LCA providing notice of the job opening and the prevailing wage offered must be posted at the place of employment. Investigations conducted by the Department of Labor found that the most common violations involved an employer’s failure to post notice of the LCA at every worksite where an H-1B worker may be employed and failure to properly compensate the H-1B worker for nonproductive periods resulting from lack of assigned work, lack of a permit or preparing for a licensing exam. In this instance, as a result of its violation, the computer consulting company is not only subject to paying back wages and civil penalties, it is also excluded from participation in the H-1B program for one year.

As of November 26, 2010, the USCIS has received approximately 50,400 Bachelor's degree petitions and 18,400 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2011 until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met. Please contact our office for assistance in filing your H-1B petition as we anticipate the quota will soon be reached.

As of November 19, 2010, the USCIS has received approximately 48,977 Bachelor's degree petitions and 17,836 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2011 until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

As of November 5, 2010, the USCIS has received approximately 46,800 Bachelor's degree petitions and 17,200 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2011 until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

As of October 15, 2010, the USCIS has received approximately 42,800 Bachelor's degree petitions and 15,700 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2011 until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

As of October 1, 2010, the USCIS has received approximately 40,600 Bachelor's degree petitions and 14,900 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2011 until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

USCIS has indicated that it will prioritize the adjudication of H-1B petitions that are subject to the H-1B cap and attempt to reduce the processing time to 60 days. It also seeks to make efforts in prioritizing the adjudication of H-1B change of status cases for F-1 students who no longer have valid work authorization after September 30. As of September 24, 2010, approximately 39,600 H-1B cap petitions were received and 14,400 for aliens with advanced degrees.

Effective July 9, 2010, the Department of State revised its visa reciprocity schedule for China to allow for a 12 month, multiple entry visa for H visa applicants. This will allow H-1B visa holders from China to have multiple entries into the U.S. for a 12 month period. For more information, see reciprocity schedule for China at http://travel.state.gov/visa/fees/fees_4881.html?cid=3537.

As of August 27, 2010, the USCIS has received approximately 34,900 Bachelor's degree petitions and 13,000 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2011 with an October 1, 2010 start date until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

On Aug. 13, 2010, President Obama signed into law Public Law 111-230, which requires the submission of an additional $2000 for certain H-1B petitions and $2250 for certain L-1 petitions. Those who are subject to the additional fees include petitioners who employ 50 or more U.S. employees and more than 50 percent of its U.S. employees are in H-1B or L status (including L-1A, L-1B and L-2). For example, ABC company has 60 employees and has 35 employees in H-1B and L-1 status. ABC Company would be required to pay the additional fee for all new H-1B and L-1 petition filings. Extension of status petitions are not subject to the additional fee. The new fees are effective immediately, applying to all petitions submitted on or after Aug. 14, 2010 through Sept. 20, 2014.

As of August 13, 2010, the USCIS has received approximately 29,700 Bachelor's degree petitions and 12,300 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2011 with an October 1, 2010 start date until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

As of July 23 2010, the USCIS has received approximately 26,000 Bachelor's degree petitions and 11,300 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2011 with an October 1, 2010 start date until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

As of June 25 2010, the USCIS has received approximately 23,500 Bachelor's degree petitions and 10,000 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2011 with an October 1, 2010 start date until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

On April 15, 2010, the Department of Homeland Security issued the USCIS “Annual Report on Characteristics of Specialty Occupation Workers (H-1B) for Fiscal Year 2009.” The summary reports on information including the countries of origin, occupations, education levels, and compensation paid to those who had approved H-1B petitions in FY 2009. The report includes the following facts: approximately 48 percent of all H-1B approved workers were born in India; 41 percent were for workers in computer-related occupations; and 41 percent were for workers with a bachelor’s degree and 40 percent had a master’s degree. To view the annual report, see http://www.uscis.gov/USCIS/Resources/Reports%20and%20Studies/H-1B/h1b-fy-09-characteristics.pdf.

As of June 11, 2010, the USCIS has received approximately 22,200 Bachelor's degree petitions and 9,400 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2011 with an October 1, 2010 start date until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

As of May 21, 2010, the USCIS has received approximately 19,600 Bachelor's degree petitions and 8,200 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2011 with an October 1, 2010 start date until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

As of May 14, 2010, the USCIS has received approximately 19,000 Bachelor's degree petitions and 8,100 U.S. Master's degree petitions. The USCIS will continue to accept H-1B petitions for FY2011 with an October 1, 2010 start date until the quota of 65,000 Bachelor’s degree petitions and 20,000 U.S. Master’s degree petitions is met.

The FY2011 period to file H-1B petitions began on April 1, 2010 with an annual quota of 65,000 for holders of Bachelor's degrees or the equivalent and 20,000 for holders of U.S. Master's or higher degrees. As of May 11, 2010, the USCIS has received approximately 18,000 Bachelor's degree petitions and 7,600 Master's degree petitions. The USCIS will therefore continue to accept H-1B petitions until the quota is met so please contact our office if you'd like our assistance with your H-1B petition.

The USCIS announced today that it will continue to accept FY2011 H-1B petitions. The H-1B category has annual quotas of 65,000 for holders of Bachelor's degrees or the equivalent and 20,000 for holders of U.S. Master's or higher degrees. The FY2011 period to file these petitions opened April 1, 2010. As of today, the USCIS has received 13,500 Bachelor's degree petitions and 5,600 Master's degree petitions. This means there are many slots left! Please contact our office if you'd like our assistance with your H-1B petition.

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.