I-140 Premium Processing is Back for Certain Cases
U.S. Citizenship and Immigration Services (USCIS) indicated on June 16, 2008 that it will begin accepting Premium Processing Service requests for Forms I-140 (Immigrant Petition for Alien Worker) filed on behalf of certain alien workers who are nearing the end of their sixth year in H-1B nonimmigrant status.
Congressman Wants Foreign Models Off Tech Visas
VIA INFORMATION WEEK
June 12, 2008 12:57 PM
Paul McDougall of Information Week writes about the 1,000 H-1B visas that fashion models utilize per year.
Indian IIT Techies snubbing US jobs to stay home
ZDNet reports that “Graduates from the Indian Institutes of Technology so called ‘IITians’ told Evalueserve that India was fast catching up with the US for the range and quality of career prospects.”
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Current Cap Count for Non-Immigrant Worker Visas for Fiscal Year 2008
Via USCIS
Please see the information relating to H-1B Program Changes for FY 2009 in the Related Links section of this page.
What is a “Cap”?
The word “Cap” refers to annual numerical limitations set by Congress
on the numbers of workers authorized to be admitted on different types
of visas or authorized to change status if already in the United States.
H-1B
Established
by the Immigration Act of 1990 (IMMACT 90), the H-1B nonimmigrant visa
category allows U.S. employers to augment the existing labor force with
highly skilled temporary workers. H-1B workers are admitted to the United States
for an initial period of three years, which may be extended for an
additional three years and, in some cases, beyond, if an a/s
application is pending.
An H-1B nonimmigrant (with the exception
of certain fashion models) must have a bachelor’s degree or higher (or
equivalent) in the specific specialty. The H-1B visa program is used by
some U.S. employers to employ foreign workers in specialty occupations
that require theoretical or technical expertise in a specialized field
and a bachelor’s degree or its equivalent. Typical H-1B occupations
include architects, engineers, computer programmers, accountants,
doctors and college professors. The H-1B visa program also includes
certain fashion models of distinguished merit and ability and up to 100
persons who will performing services of an exceptional nature in
connection with Department of Defense (DOD) research and development
projects or coproduction projects. The current annual cap on the H-1B
category is 65,000. Not all H-1B nonimmigrants are subject to this
annual cap.
H-1B Employer Exemptions
H-1B
nonimmigrants who are employed, or who have received an offer of
employment, by institutions of higher education or a related or
affiliated nonprofit entity, as well as those employed, or who will be
employed, by a nonprofit research organization or a governmental
research organization are exempt from the cap.
H-1B Advanced Degree Exemption
The
H-1B Visa Reform Act of 2004, which took effect on May 5, 2005, changed
the H-1B filing procedures for FY 2005 and for future fiscal years. The
H-1B Visa Reform Act of 2004 also makes available 20,000 new H-1B visas
for foreign workers with a Master’s or higher level degree from a U.S.
academic institution. Such persons are statutorily exempted from the
annual cap.
|
|
Cap |
Beneficiaries Approved |
Beneficiaries Pending Petitions Receipted |
Beneficiaries Pending Petitions yet to be Receipted |
Total |
Date of Last Count |
|
H-1B (FY 08) |
58,200 1 |
—— |
—— |
—— |
Cap Reached |
4/2/2007 |
|
H-1B Advanced Degree Exemption (FY 08) |
20,000 |
—— |
—— |
—— |
Cap Reached |
4/30/2007 |
1
6,800 visas are set aside during the fiscal year for the H-1B1 program
under the terms of the legislation implementing the U.S.-Chile and
U.S.-Singapore Free Trade Agreements. Unused numbers in this pool can
be made available for H-1B use with start dates beginning on October 1,
2007, the start of FY 2008. USCIS has added 5,800, the projected number
of unused H-1B1 Chile/Singapore visas to the FY 2008 H-1B cap.
H-1B1
An H-1B1 is a national of Chile or Singapore
coming to the Unites States to work temporarily in a specialty
occupation. The law defines an H-1B1 specialty occupation as a position
that requires theoretical and practical application of a body of
specialized knowledge. The beneficiary must have a bachelor’s degree or
higher (or equivalent) in the specific speciality. The combined
statutory limit is 6,800 per year. 1,400 visas are set aside annually
for nationals of Chile, and 5,400 for nationals of Singapore.
H-2B
The H-2B visa category allows U.S.
employers in industries with peak load, seasonal or intermittent needs
to augment their existing labor force with temporary workers. The H-2B
visa category also allows U.S.
employers to augment their existing labor force when necessary due to a
one-time occurrence which necessitates a temporary increase in workers.
Typically, H-2B workers fill labor needs in occupational areas such as
construction, health care, landscaping, lumber, manufacturing, food
service/processing, and resort/hospitality services.
The Save
Our Small and Seasonal Businesses Act of 2005 (SOS Act) divided the
annual numerical limitations of 66,000 into two halves. USCIS
regulations allow for filings 6 months in advance. However, H-2B
petitioners first must obtain a temporary labor certification from the
Department of Labor (DOL). DOL regulations stipulate that the
application for temporary labor certification may not be filed more
than 120 days in advance of the need for the employee to ensure the
accuracy of the labor market test. Thus, USCIS normally begins
receiving H-2B petitions with employment start dates in October in June
or July.
What is the H-2B numerical limit set by Congress?
The
H-2B numerical limit set by Congress per fiscal year is 66,000. USCIS
notes that, as of October 1, 2007, Congress has not amended the
“returning worker” provisions of the Save Our Small and Seasonal
Businesses Act of 2005 (SOS Act) to cover FY 2008.
Until October
1, 2007, if a petition was approved only for the purpose of extending
an alien’s stay in H-2B status, or only for change or addition of
employers or a change in the terms of employment, the worker was not
counted against the numerical limit at that time. By contrast, an
alien who changes nonimmigrant status to H-2B was generally counted
against the annual H-2B cap.
Why does USCIS authorize more H-2B workers than the statutory limit?
USCIS
adjudicates H-2B petitions based on the facts presented by the
petitioner in the petition. If the alien beneficiaries of the H-2B
petition are abroad, USCIS then sends the approved petitions to the
Department of State (DOS) for consular processing. Employers, however,
may decide after submitting an H-2B petition that the aliens on whose
behalf it petitioned are no longer needed. In such cases, DOS will not
issue the aliens an H-2B visa. In other instances, some aliens never
appear at the consular post for their H-2B visa interview following
petition approval. DOS may also deny some H-2B visa applications even
though USCIS has approved petitions for these workers. Similarly, DHS
Customs and Border Protection (CBP) may determine at a port-of-entry
that the beneficiary of an approved H-2B petition is inadmissible and
refuse to admit the alien to this country.
Because
of such “drop outs,” the number of potential H-2B workers authorized to
work by USCIS will exceed the actual number of visas issued based on
petition approvals — the basis of the statutory limit.
|
Cap |
Beneficiaries Approved |
Beneficiaries Pending |
Beneficiaries Target 1 |
Total |
Date of Last Count |
|
|
H-2B 1st Half |
33,000 |
—— |
—— |
—— |
Cap Reached |
9/27/2007 |
|
H-2B |
33,000 2 |
—— |
—— |
—— |
Cap Reached |
1/2/2008 |
|
H-2B Annual (FY 08) |
66,000 3 |
—— |
—— |
—— |
—— |
—— |
1
Refers to the estimated numbers of beneficiary applications needed to
reach a cap, with an allowance for withdrawals, denials and revocations.
2 A shortfall in the 1st half would be made up in the 2nd half.
3 Visas issued plus beneficiaries changing status already in the United States.
H-3
The H-3 nonimmigrant visa category is for aliens who are coming temporarily to the U.S.
to receive training (other than graduate medical education or
training). The training may be provided by a business entity, academic,
or vocational institute. The H-3 nonimmigrant visa category also
includes aliens who are coming temporarily to the U.S.
to participate in a special education training program for children
with physical, mental, or emotional disabilities. There is a limit of
50 visas per fiscal year allocated to H-3 aliens participating in
special education training programs. As of November 29, 2007, one of
these H-3 visas had been approved with a start date in FY 2007.
USCIS UPDATE: USCIS RUNS RANDOM SELECTION PROCESS FOR H-1B PETITIONS
VIA USCIS
APRIL 14 2008
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today conducted the computer-generated random selection processes on H-1B petitions, to select which H-1B petitions for fiscal year 2009 (FY 2009) would continue to full adjudication. If approved these H-1B petitions will be eligible to receive an H-1B visa number.
USCIS conducted two random selections, first on petitions qualifying for the 20,000 “master’s or higher degree” (advanced degree) exemption, and second on the remaining advance degree petitions together with the general H-1B pool of petitions, for the 65,000 cap.
The approximately 163,000 petitions received on the first five days of the eligible filing period for FY 2009 (April 1 through April 7, 2008) were labeled with unique numerical identifiers. USCIS has notified the appropriate service centers which numerical identifiers have been randomly selected, so each center may continue with final processing of the petitions associated with those numerical identifiers.
Petitioners whose properly filed petitions have been selected for full adjudication should receive a receipt notice dated no later than June 2, 2008. USCIS will return unselected petitions with the fee(s) to petitioners or their authorized representatives. As previously announced, duplicate filings will be returned without the fee. The total adjudication process is expected to take approximately eight to ten weeks.
For cases selected through the random selection process and initially filed for premium processing, the 15-day premium processing period begins today (April 14), the day of the random selection process.
USCIS has “wait-listed” some H-1B petitions, meaning they may possibly replace petitions chosen to receive an FY-2009 cap number, but that subsequently are denied, withdrawn, or otherwise found ineligible. USCIS will retain these petitions until a decision is made whether they will replace a previously selected petition. USCIS will send a letter to the wait list petitioners to inform them of their status USCIS expects that for each of these wait-listed petitions, it will either issue a receipt notice or return the petition with fees within six to eight weeks.
– USCIS –
USCIS Reaches FY 2009 H-1B Cap
USCIS Reaches FY 2009 H-1B Cap
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced today that it has received enough H-1B petitions to meet the congressionally mandated cap for fiscal year 2009. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the “advanced degree” exemption. Before running the random selection process, USCIS will complete initial data entry for all filings received during the filing period ending on April 7, 2008. Due to the high number of petitions, USCIS is not yet able to announce the precise day on which it will conduct the random selection process.
USCIS will carry out the computer-generated random selection process for all cap-subject petitions received. USCIS will select the number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the “advanced degree” exemption limit. USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless found to be a duplicate. USCIS will handle duplicate filings in accordance with the interim final rule published on March 24, 2008 in the Federal Register.
The agency will conduct the selection process for “advanced degree” exemption petitions first. All “advanced degree” petitions not selected will be part of the random selection process for the 65,000 limit.
USCIS Announces Interim Rule on H-1B Visas – Rule Modifies Selection Process and Prohibits Multiple Filings
USCIS Announces Interim Rule on H-1B Visas – Rule Modifies Selection Process and Prohibits Multiple Filings
WASHINGTON ─ U.S. Citizenship and Immigration Services (USCIS) transmitted an interim final rule to the Federal Register today that prohibits employers from filing multiple H-1B petitions for the same employee. These changes will ensure that companies filing H-1B petitions subject to congressionally mandated numerical limits have an equal chance to employ an H-1B worker. To ensure a fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.
This rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need. The interim final rule becomes effective upon publication in the Federal Register.
Last August, President Bush announced that the Administration would be undertaking a series of immigration and border security reforms. The changes to the H-1B filing process under this rule are an important part of that initiative.
On April 1, 2008, employers may file petitions requesting H-1B workers for fiscal year 2009 employment starting on October 1, 2008. For fiscal year 2009, Congress has set a limit of 65,000 for most H-1B workers. Additionally, the first 20,000 H-1B workers who have a U.S. master’s degree or higher are exempt from the cap. Under current procedures, which are not changed by this rule, once USCIS receives 20,000 petitions for aliens with a U.S. master’s degree or higher, all other cases requesting the educational exemption are counted toward the 65,000 cap. Once the 65,000 cap is reached for a fiscal year, USCIS will announce that the cap has been filled and reject further petitions subject to the cap.
This rule also stipulates that if USCIS determines the number of H-1B petitions received meets the cap within the first five business days of accepting applications for the coming fiscal year, USCIS will apply a random selection process among all H-1B petitions received during this time period. If the 20,000 advanced degree limit is reached during the first five business days, USCIS will randomly select from those petitions ahead of conducting the random selection for the 65,000 limit. Petitions subject to the 20,000 limit that are not selected in that random selection will be considered with the other H-1B petitions in the random selection for the 65,000 limit.
The rule further clarifies that USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits. Those filing fees will not be returned.
IT majors got fewer H-1B visas approvals in ’07
19 Mar, 2008, 0106 hrs IST,Deepshikha Monga, TNNVIA THE ECONOMIC TIMES
Leading Indian IT companies Infosys, Wipro, TCS and Satyam received fewer H-1B approvals in 2007, as compared to 2006. For instance, top-ranked H-1B user Infosys got 4,559 visas for the financial year 2007 starting October 2007, against 4,908 in 2006. Similarly, Wipro, which got 4002 visas in 2006, received 2,567 visas in 2007.
While Satyam got 1,396 approvals in 2007, against 2,880 in 2006, TCS got 797 approvals in 2007, a drastic drop from 3,046 in 2006.
Allegations of foreign companies, especially Indian, using H-1B visas to replace qualified American workers surfaced last year when senators Chuck Grassley and Dick Durbin wrote to nine Indian IT companies, among the top 20 H-1B users in 2006 that accounted for 19,512 visas, 30% of the total 65,000 workers’ visas.
The senators questioned these companies on their usage of these visas and lay-offs in the US. The same companies, of which six now figure in the top 20 users for fiscal 2007, got about 10,927 visas, a drop of 8,585 over 2006.
It’s not that Indian companies are taking fewer workers abroad, usually for onsite deployment at the clients’ offices. Industry players claim they were unable to get more visas as more companies tried to stake their claim to the limited H-1B visas. Pro-H1B executives like Bill Gates have urged the US government to increase the cap on the visas.
Microsoft was the fifth-most active user in 2007, with 959 H-1B approvals to its name. Mr Gates has urged the US Congress to increase the visa cap, citing his own company’s inability to hire as many foreign workers as it wanted to. “Last year, for example, Microsoft was unable to obtain H-1B visas for one-third of the highly qualified foreign-born job candidates that we wanted to hire,” he said.
The top H-1B users in 2007, in the order of usage, were Infosys, Wipro, Satyam, Cognizant (962), Microsoft, TCS, Patni (477), US Technology Resources (416), i-flex (374) and Intel (369). Of these, six including i-flex, which is based in India but owned by Oracle, are Indian firms.
In 2006, seven firms figured in the top 10, L&T Infotech didn’t make it to the list in 2007. Nasscom said the issue was not job loss by Americans but about skill loss occurring due to foreign workers going back to their respective countries after enhancing their skills in the US. “There is a technical skill shortage in the US,” said Nasscom president Som Mittal.
Meanwhile, Mr Grassley has recently asked the US Homeland Security department as to the moves taken to reform the visa programme, which he said is being abused by foreign companies that bring in idle workers to the US and ‘lease’ them to other firms.
Counters a senior executive at an Indian IT firm, “People are not looking at the contribution of these H-1B workers at the technology level. The big picture is that we are working in a borderless world and people have to live with that.”
What are the main errors in an H-1B petition that can cause USCIS to have to reject or deny the petition?
There are several common errors made by petitioners that can cause a petition to be rejected or denied. This is a list of the most frequently seen and easily cured mistakes.
Incorrect Fees
Frequently, petitioners miscalculate the amount of money needed for each filing. If you submit the fees in one check and the amount is wrong, we must reject the petition. We suggest you submit the fees in separate checks. We believe this lessens the likelihood of unintentional math errors when calculating the total fees due in connection with the filing of an H-1B petition.
Inconsistent and Incorrect Answers on Form I-129 and Supplements
Please double check the petition to make sure you have answered all the questions and that the answers are consistent and correct throughout the entire package, including the petition and all accompanying documentation. USCIS cannot make assumptions about what a petitioner really intended if that is not clear on the face of the documents submitted.
For example, if you check “yes” to the question of whether the beneficiary has a U.S. Master’s degree in Part A, #5 of the supplement, then Part C, #7 should also be checked “yes.”
Another common mistake is where the petitioner indicates on one part of the Form I-129 that the beneficiary is not subject to the cap, but on top of the petition they may write “Regular Cap.” This can also delay processing of a case or even cause it to be rejected.
If your worker is or has ever been a J-1 please note:
Part C, #4 of the supplement does not refer to all J-1s who have been granted waivers of the 212(e) 2-year foreign residency requirement. Check “Yes” only if your worker is a doctor or a medical researcher who has been granted a Conrad 30 waiver under INA section 214(I)(1)(B) to work in a medically underserved area, or a waiver under INA section 214(I)(1)(C) based on a request by an Interested Government Agency (IGA).
For Fiscal Year 2009, the first filing date is Tuesday, April 1, 2008. USCIS wants to be sure to accept all qualifying petitions for inclusion in the random selection , if necessary. If you file a petition correctly, you increase your chances of obtaining an H-1B cap number. We are working on making the process as smooth as possible both this coming April and in the future. Please read all Updates posted for additional information.
Petitions are filed at Vermont and California Service Centers, depending on jurisdiction. See filing instructions and USCIS Update on “Centralized Filing Location” for certain H-1B cap exempt petitioners (listed in the Related Links section of this page). Both the forms and the instructions can be downloaded from our website under “Immigration Forms”.
Microsoft’s Canadian Move a Swipe at Stiff U.S. Visa Policies
Fay Hansen of Workforce Management describes how Microsoft is coping with overly restrictive U.S. immigration policies regarding professional nonimmigrant workers.
She writes: “Without national reform, the U.S. continues to drift away from the global move toward greater labor mobility. Other nations, including Canada and the United Kingdom, now use point systems designed to pull in the most talented workers without an existing job offer.
The U.K. also automatically grants visas to MBA graduates from the world’s top 50 business schools, more than half of which are located in the United States. Unlike these merit-based systems, the U.S. H-1B process is a lottery that increasingly discourages the top candidates from looking for work in the U.S.”
Bill Gates leads H-1B hike cry
NEW DELHI: The April 1 deadline and an election year have given American industry renewed vigour to lobby for an increase in the annual quota of temporary skilled worker (H-1 B) visas.
Microsoft founder Bill Gates is among industry chiefs headed for Capitol Hill to lobby for this increase. Alongside, Compete America, a coalition of industry, research and education institutions have also begun pitching for an increase in the annual quota.
The United States Citizenship and Immigration Services will start accepting applications for temporary skilled worker (H-1 B) visas from April 1 for the fiscal year 2009 that begins on October 1.
As was the case in the past couple of years, it is expected that the annual quota of H-1 B visas will be exhausted on the first day itself. At present, the quota is at 65,000 visas a year. Of this, 6,800 visas are set aside for Chile and Singapore as per their trade agreements with the US. This leaves 58,200 H-1 B visas for applicants from the rest of the world.
Experts say as this is an election year, not merely the presidential race, but also for the Congress, the industry may be able to persuade lawmakers to actively consider an increase. There are also reports of the Congressional Hispanic Caucus introducing a new immigration reform bill.
This would focus on illegal immigrants, but hike in H-1 B numbers could be tacked along as well. There seems to exist a support for this line of action within the American legislature.
Both Democrats and Republican leaders in the US House of Representatives are of the view that any effort at immigration reform should take into consideration the need to ensure that “the best and brightest in the United States and around the world are able to contribute to innovation” in the US.
As recently as October 2007, the House Republican leadership in a letter to the Speaker wrote that “we must enact legislation that allows US companies to attract and retain high-skilled workers to contribute and excel in the US economy without unnecessary delays and waiting periods. Members on both sides of the aisle have supported this in the past and we’re confident they will again.”
Compete America is lobbying for immigration reform that goes beyond enforcement steps. In a letter to Speaker and leaders of the House, Robert Hoffman, co-chair of Compete America wrote, “We agree that enforcement measures are a crucial part of immigration reform. Enforcementonly legislation, however, would not address many of the most pressing aspects of the national crisis surrounding our immigration system, especially for US employers who need access to highly-skilled professionals in order to remain competitive.”
“Congress instead must address immigration reform more thoroughly, including reforms to the legal immigration system, whose H-1 B visa and employment-based green card programmes are woefully inadequate to meet our nation’s economic needs.”
Clinton, McCain and Obama on H-1B visas
InfoWorld quotes the three presidential candidates’ positions on the H-1B visa:
“Hillary Clinton
“I also want to reaffirm my commitment to the H-1B visa program and to increase the current cap. Foreign skilled workers contribute greatly to our technological development. That is well understood in Silicon Valley.”
John McCain
“I will continue to support H-1B visas, but, I’m telling you, the American peoples priority is, either rightly or wrongly, and we live in a democracy, is that we secure the borders first.”
Barack Obama
“We can do better than that and go a long way toward meeting industry’s need for skilled workers with Americans. Until we have achieved that, I will support a temporary increase in the H-1B visa program as a stopgap measure until we can reform our immigration system comprehensively.”
Read Article
The U.S. Immigration Law Blog by Ashwin Sharma 
More H-1B Visas, More American Jobs, A Better Economy
Via The Heritage Foundation
Excellent article on the H-1B visa and its effects on the US economy, by James Sherk (Bradley Fellow in Labor Policy) and Guinevere Nell (Research Programmer in the Center for Data Analysis), both of The Heritage Foundation.