The President asked Secretary Johnson and Attorney General Eric Holder to undertake a rigorous and inclusive review to inform recommendations on reforming our broken immigration system through executive action. This review sought the advice and input from the men and women charged with implementing the policies, as well as the ideas of a broad range of stakeholders and Members of Congress from both sides of the aisle. Our assessment identified the following ten areas where we, within the confines of the law, could take action to increase border security, focus enforcement resources, and ensure accountability in our immigration system.
Tag Archive | H-1B Cap
H-1B Update: On May 4, 2015 USCIS Completed Data Entry of FY 2016 H-1B Cap-Subject Petitions and will begin Returning Rejected Cases
USCIS announced May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in our computer-generated random process. USCIS will now begin returning all H-1B cap subject petitions that were not selected. Due to the high volume of filings, the time frame for returning these petitions is uncertain. USCIS asks petitioners to not inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the petitions have been returned.
Key Facts on President Obama’s Immigration Action – Via USCIS.gov
Via USCIS.gov
Fixing Our Broken Immigration System Through Executive Action – Key Facts
H-1B APPS FOR FY2015 UPDATE: SOME COURIER DELIVERY ISSUES REPORTED BY FEDEX
Update (6:45 PM): AILA Liaison has been informed that due to the reported courier delivery problems with FY2015 H-1B petitions, USCIS will accept a second H-1B petition in certain limited circumstances. Specifically, for cap-subject petitions that were timely filed, if, upon inquiry, the carrier indicates that there may be a delivery delay or the package has been damaged, the petitioner may file a second H-1B petition with:
- A new fee;
- An explanation as to why the second petition is being filed, with supporting evidence (such as the notice from the carrier); and
- A request to withdraw the first H-1B cap petition.
USCIS will return the withdrawn petitions with the fee, even if they have already been receipted.
Petitions that do not include the above-referenced items will be treated as duplicate petitions and will be denied or revoked, and USCIS will not refund the filing fees. Please also note that if the FY2015 cap is met within the first five business days of April, USCIS will reject all petitions received after April 7, 2014, including duplicate H-1B petitions filed in accordance with these instructions.
Update (5:03 PM): A member has been informed by FedEx that approximately 200 packages have been delivered to the Vermont Service Center but were not scanned as delivered. Members can call FedEx directly (1-800-463-3339), provide the tracking number, and the representative should be able to confirm delivery telephonically.
AILA has received several reports from members who, upon inquiring about the status of their FedEx delivery, have been informed of delivery problems. AILA has reported the specific problems to USCIS headquarters. USCIS officials are investigating the situation and will report back to AILA as soon as possible. In the meantime, if you have been unable to confirm that your package has been delivered to the CSC or VSC, you might consider preparing a duplicate petition as a precaution. However, do not file a duplicate petition until you have confirmed that the original petition has been destroyed, misdirected, or lost. Under 8 CFR 214.2(h)(2)(i)(G), USCIS will deny or revoke duplicate filings by the same employer for the same beneficiary, and fees will not be refunded.
AILA will continue to provide updates as it learns more information from USCIS.
H-1B Opponents continue onslaught against Immigration of the Educated
This week, Bill Snyder, a blogger for the anti-H-1B propaganda site Infoworld posted an article attacking Immigration of the Educated. What is especially interesting about Mr. Snyder’s position is the fact that it signals the resumption of the 2008 attack on the Optional Practical Training program (OPT). OPT being a temporary work authorized status granted to eligible F-1 students who may thus gain professional work experience post graduation, and perhaps a portion back of 20+ billion dollars in tuition they pay into our coffers each year.
Unjustified ire towards OPT is peaking only because the program may be utilized by eligible F-1 Science/Technology/Engineering/Math (STEM) graduates. Apparently, for Mr. Snyder, it is only then that the program transforms into what he terms “a sleazy end run around the law”. Mr. Snyder claims that these new STEM graduates, supported by their “tech company” employers, enter the U.S. workforce en masse to undercut IT wages. Said wages, which he admits in the first sentence, are already “climbing to more than $87,000 a year”.
The fact that Mr. Snyder’s argument against OPT flies in the face of the concept of American Exceptionalism and two basic economic principles, or that it is entirely bereft of any unbiased and relevant data is moot. The most significant takeaway from his article is that STEM OPT is nothing more than a scapegoat: this attack is actually and truly directed against the H-1B program itself. Mr. Snyder and other IT protectionists seek justification to undermine the OPT program not because of any alleged misuse, but because OPT allows a post graduate STEM worker precious time to find a good employer who may agree to pay government fees of up to $5,550.00 (plus attorney fees) to file an H-1B petition on their behalf. (There are no guarantees of approval, nor is the worker forced to even ultimately take up employment with the H-1B petitioner. As well, in the future, the H-1B worker, for any reason, may transfer to a new H-1B employer in as little as one week.)
Our immigration policy is increasingly hobbled by protectionists who, for short term gain (or perhaps unknowingly), damage our nation’s international lead in the STEM fields. Our insufficient H-1B cap that does the same: tens of thousands of highly qualified, valuable STEM professionals were rejected in last year’s random selection process (H-1B lottery), and sadly the scene is set be repeated again this year in April.
Our repeated rejection of STEM professionals is untenable and is certain to diminish our ability to attract the worlds best and brightest, unless we make drastic changes. Already, other nations are eagerly recruiting STEM workers (sometimes from within our own borders). The bottom line: the yearly H-1B cap must be increased to an amount commensurate to demand, or at the very least, to a level that isn’t exhausted in one week.
H-1B visa filings for FY 2015 begin on April 1, 2014 – Another Lottery Expected
The H-1B program is used by U.S. corporation to employ foreign professional workers in occupations that require theoretical or technical expertise in specialized fields. The program allows for about 85,000 new H-1B workers each Fiscal Year, a paltry number in the face of the U.S.’s need for Science, Technology, Engineering and Mathematics (“STEM”) workers. In an interview with Reuters last year, I predicted that 2013’s H-1B quota would be exhausted instantly – something that had not occurred since 2008. I was subsequently proven correct as USCIS received approximately 124,000 H-1B petitions during the filing period, each vying for one of the 85,000 “slots” available. On April 7, 2013, USCIS used a computer-generated random selection process (the “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit.
This year, the Fiscal Year 2015 Cap season will begin on April 1, 2014 and I anticipate an even larger number of H-1B applications. This prediction is based not only on the strengthening national economy but also because U.S. Immigration authorities have reduced or eliminated other possible options for U.S. companies in acquiring STEM professional workers. Despite the tremendously positive impact that H-1B visa holders make in this country (including the substantial revenue the hefty H-1B application fees generate for USCIS and U.S. worker training programs nationwide), they are treated poorly by U.S. Immigration authorities. H-1B employers and beneficiaries suffer from absurdly high query rates and illogical consular delays. Many also subject to unusually long delays in filing for Permanent Residence, for example, an Indian born Software Engineer currently faces a wait time of eleven (11) years to obtain an employment based third preference (EB-3) green card.
As I have previously stated, our national immigration policy should emphasize our immediate need: to retain and increase our advanced degree professionals so that the we can continue to compete internationally and maintain our lead in new technologies. One of the best ways to accomplish this is to take concrete steps towards increasing the H-1B cap amount to 250,000.
USCIS Report: FY2012 Annual Report to Congress on Characteristics of H-1B Specialty Occupation Workers
FY2012 Annual Report to Congress on Characteristics of H-1B Workers
USCIS report to Congress on the characteristics of H-1B filings for FY2012, including statistics on country of birth and age of beneficiary, occupational categories and titles of approved petitions, annual compensation rates, and industry breakdowns.
FY2014 H-1B Cap Update – 04/16/2013
AILA indicates that USCIS has initiated the data entry process for H-1B petitions selected in the lottery. Premium processing cases are being handled first and data entry for those cases should be completed by April 15. Our firm has been receiving Premium processing notices since last week.
Data entry for non-premium processing cases will begin after entries for premium processing cases are completed, likely not until May (like in 2008). Rejection notices for petitions not selected in the lottery will be issued subsequently.
USCIS Cap: Approx. 124,000 H-1B Petitions filed between April 1 and April 5 for approx. 83K Visas Available (incl. Adv. Degree Cap/Reg Cap Minus Singapore/Chile)
VIA USCIS.GOV
WASHINGTON—For the first time since 2008, U.S. Citizenship and Immigration Services (USCIS) has reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. 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.
USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 7, 2013, USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption limit. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.
The agency conducted the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected were part of the random selection process for the 65,000 limit.
As announced on March 15, 2013, USCIS has temporarily adjusted its premium processing practice. To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013. For more information on premium processing for FY 2014 cap-subject petitions, please see the related USCIS Alert.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY 2014 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:
- extend the amount of time a current H-1B worker may remain in the U.S.;
- change the terms of employment for current H-1B workers;
- allow current H-1B workers to change employers; and
- allow current H-1B workers to work concurrently in a second H-1B position.
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields including, but not limited to: scientists, engineers, or computer programmers.
ENTIRE YEAR’S H-1B CAP MET ON APRIL 5, 2013, AS USCIS HAD PREDICTED. THIS IS CLEAR EVIDENCE THAT INCREASED H-1B NUMBERS URGENTLY NECESSARY
USCIS’ announcement (late last month) that it anticipated the entire year’s cap would be met in within a week of the cap opening on April 1, 2013 was a self-fulfilling prophecy. We have learned that the cap is indeed exhausted. This is undisputed evidence that H-1B visa numbers must be increased in order for this country to remain competitive globally.
U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. 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. After today, USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.
USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received through April 5, 2013. 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. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process. Also, USCIS is currently not providing the total number of petitions received, as we continue to accept filings today. USCIS will continue to accept and process petitions that are otherwise exempt from the cap.
USCIS will provide more detailed information about the H-1B cap next week.
Fedex appears to be experiencing trouble with the sheer volume of H-1B petitions filed
By Ashwin Sharma
Several of the Cap Subject H-1B professional worker cases we submitted to USCIS via overnight Fedex from Saturday onward show no tracking information updates. Other sources are also indicating that Fedex is experiencing difficulty handling the sheer volume of H-1B applications filed.
The U.S. Immigration Law Blog by Ashwin Sharma 
Update: USCIS Final Guidance on When to File an Amended or New H-1B Petition after Matter of Simeio Solutions, LLC
Today USCIS issued its long awaited USCIS final guidance on how to implement the AAO precedent decision Matter of Simeio Solutions, LLC on when an amended or new H-1B petition must be filed. By way of background, after years of allowing ‘LCA Amendments’ in H-1B cases involving solely a change in job sites, on April 9, 2015, the AAO’s sudden adoption of Matter of Simeio Solutions as precedent now requires a full H-1B amendment to be filed in most such cases: for many H-1B employers the AAO holding essentially mandates increased risk, complexity, cost, delay and uncertainty Interestingly, it is probable that the need for a Matter of Simeio Solutions came about, at least in part, to combat the widespread adoption of LCA amendments which became more popular after the USCIS issued the January 2010 Neufeld Memo, (about which I was interviewed by BBC Hindi), another suddenly imposed mandate that also increased risk, complexity, cost, delay and uncertainty for H-1B businesses (and from which USCIS somewhat backed away on later that same year). In any case, after August 19, 2015 USCIS will require that a full H-1B amendment be filed together with a $325 fee. Judging by recent H-1B regular processing times, USCIS may adjudicate these cases 3-6+ months after they are filed (faster if the Employer also pays USCIS a $1225 premium processing government fee).
USCIS guidance on Matter of Simeio Solutions provides an H-1B petitioner (employer) three different deadlines depending on when its employee changed location:
a) If, on or before April 9, 2015, a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition): an H-1B requirement may be filed, but is not required to be filed.USCIS indicates that in such cases, it “will generally not pursue new revocations or denials based upon failure to file an amended or new petition. However, notices of intent to revoke, revocations, requests for evidence, notices of intent to deny, or denials issued prior to July 21, 2015 (date of this final guidance) remain in effect and the petitioner must comply with them”
b) If, after April 9, 2015 but prior to August 19, 2015, a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition): “The petitioner must file an amended or new petition by January 15, 2016. USCIS will consider filings prior to the deadline for this safe harbor period to be timely for purposes of the regulation. However, if the petitioner does not file the amended or new petition within the time permitted, the petitioner will be out of compliance with DHS regulations. The petitioner’s current Form I-129, Petition for a Nonimmigrant Worker, H-1B petition approval will be subject to a notice of intent to revoke and the employee may be found to not be maintaining his or her H-1B status.”
c) If, on or after August 19, 2015, a petitioner’s H-1B employee moved to a new place of employment (not covered by an existing, approved H-1B petition): “The petitioner must file an amended or new petition before an H-1B employee starts working at a new place of employment not covered by an existing, approved H-1B petition.”
While acknowledging favorably USCIS’ grant of additional time for compliance with Matter of Simeio Solutions, one of the primary issues faced by an H-1B employer presently is that while it may place its H-1B employee at a new job site and initiate work there at roughly the same time as in LCA amendment situations, in reality it may be immeasurably difficult to expect all affected parties to wait for a final USCIS adjudication (for which a longer wait than usual is likely based on the number of applications expected to be filed). Second: such adjudications are often preceded by the issuance of and response to (usually) lengthy Requests for Evidence that frequently require both the employer and the employee to essentially ‘reinvent the wheel’, in other words, reestablish many elements of the case over again, including, amazingly, specialty occupation and beneficiary’s qualifications. These adjudications can be expensive, time consuming and can ultimately result in denials of previously approved H-1B petitions, at an especially inopportune moment for the Employer/Employee (new assignment, new project etc). This is both because unlike Matter of Simeio Solutions, the vast majority of AAO are non-precedent/ not binding on USCIS, and because USCIS is simply not required to grant discretion in extensions or amendments of H-1B employment involving the same employee and same employer,
“CIS has the authority to question prior determinations. Adjudicators are not bound to approve subsequent petitions or applications seeking immigration benefits where eligibility has not been demonstrated, merely because of a prior approval which may have been erroneous. Matter of Church Scientology International, 19 I&N Dec. 593, 597 (Comm. 1988). Each matter must be decided according to the evidence of record on a case-by-case basis. See 8 CFR § 103.8(d).”
Yates Memo of April 23, 2004 “The Significance of a Prior CIS Approval of a Nonimmigrant Petition in the Context of a Subsequent Determination Regarding Eligibility for Extension of Petition Validity.”
In short: minor location changes alone will now expose an H-1B employer to additional delay, expense and to the Totality of USCIS Scrutiny. Matter of Simeio Solutions and today’s policy guidance are certain to have a widespread impact on a variety U.S. business sectors, and like the January 2010 Neufeld Memo, both maintain the appearance of being engineered specifically to target the U.S.’ Information Technology Consulting sector, and by extension, Indian Nationals, who also received 70% of all H-1B petitions approved in FY2014.
There is a sharp dichotomy between our Nation’s Business and Family Immigration Policies: the former is lucky to receive an iota of the political attention and importance that the latter enjoys fairly consistently. By ratifying Matter of Simeio Solutions, USCIS has taken a firm step towards joining the Department of State/ Consulates in steering the H-1B program down the same Road to Redundancy most recently traveled by the once-useful-but-no-longer-viable-for-US-business L-1B and ‘B-2 in Lieu of H-1B‘ programs (The F-1 OPT is next – and already targeted by anti-H-1B groups). However, for U.S. businesses to grow, particularly those within STEM fields, our policymakers and stakeholders must acknowledge the critical import of Business Immigration programs such as the H-1B, and the significant contribution that H-1B professionals make towards our Nation’s future. Aid must be provided in identifying and removing unreasonable obstacles from these programs in favor of sustainable solutions which must be effected through a lengthier rule-making process incorporating greater input from stakeholders to establish expeditious, cost-effective and workable solution(s) that to satisfy both USCIS and U.S. Business’ requirements.
It is abundantly clear that the U.S. maintains a critical and demonstrated need for H-1B professionals, and certainly for the continued viability of the H-1B program itself. This fact is demonstrated most recently in April 2015 by the 233,000 H-1B applications filed by professionals for one of the approximately 85,000 spots in our (insufficient) yearly quota. Our rejection of hundreds of thousands of professional workers over the years is untenable: it negatively impacts our ability to conduct business and attract the world’s Best and Brightest. Further, while other nations eagerly recruit STEM workers (sometimes from within our own borders) each year we see more restrictions and obstacles ‘added-on’ to Business Immigration Programs, most particularly the H-1B.
Links:
USCIS POLICY GUIDANCE OF JULY 21, 2015 – Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC
SIMEIO SOLUTIONS, LLC, 26 I&N Dec. 542 (AAO 2015) (PDF)
NEUFELD MEMO – January 2010 Neufeld Memo