Employers who are filing H-1B cap exempt visa petitions including extension petitions must file those petitions with the California Service Center (CSC). Additionally, please note that any H-1B cap exempt and extension petitions mistakenly sent to the Vermont Service Center (VSC) will be REJECTED.
H-1B “Cap EXEMPT” petitions include petitions filed by:
• Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);
H-1B Nonimmigrant Visa Petitions should be filed on April 1, 2009 for Fiscal Year 2010, which begins on October 1, 2009 and ends September 30, 2010. In recent years, the H-1B cap has been exceeded on the first day, April 1st.
H-1B nonimmigrant visas are for professional foreign workers with a U.S. bachelor’s degree or its foreign equivalent. Congress allows 65,000 visas to be issued annually to qualifying foreign workers. An additional 20,000 H-1Bs are reserved for professional foreign workers who receive U.S. Master’s degrees. Employers petition the United States Citizenship and Immigration Services (USCIS) on behalf of the professional foreign worker beginning six months prior to the beginning of the upcoming fiscal year. Frequently, employers interested in utilizing the H-1B visa program contact an experienced Immigration Business Lawyer for a consultation about the process, determine eligibility, discuss applicable lawyer’s fees and filing fees, and so forth.
If your company is interested in a consultation about this process, PLEASE CONTACT OUR OFFICE IMMEDIATELY!
The U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa petitions for professionals that count against the FY2010 cap on April 1, 2009. These professionals will be eligible to begin H-1B employment on October 1, 2009.
Employers looking to hire new H-1B professionals are urged to begin the H-1B petition process now. Keep in mind that last year, all 65,000 H-1B numbers were utilized within days of the April 1st filing date. This year we anticipate that the H-1B cap will be met even earlier.
Employers should review their employment needs and determine whether any foreign national employees will be requiring H-1B visas. This is extremely important where employers are planning to hire foreign nationals who will soon graduate from U.S. universities. While many of these individuals may already have an employment authorization card, you may still have to file an H-1B petition for them. For instance, if you plan to hire an individual that will graduate in May 2009, that individual’s employment authorization card will be valid through the end of May 2010. After May 2010, this individual will no longer be able to work for you unless you have already filed an H-1B petition for them on April 1, 2009 asking the USCIS to change their status to H-1B from October 1, 2009. H-1B status grants such an individual up to three years of employment authorization from October 1, 2009.
The U.S. immigration system is constantly changing. At a recent stakeholders meeting, the U.S. Department of Labor (DOL) announced several upcoming changes to the Labor Certification and Labor Condition Application process.
Expect More PERM Audits
The DOL announced that with Backlog Elimination Centers (BECs) closing, the DOL will now be now focusing its resources on parts of the PERM regulations that were not focused on earlier, including audits and supervised recruitment. Since April 2007, Immigration attorneys have seen a spike in PERM audits by the DOL. It looks like Audits are going to be commonplace from now on. DOL announced that both targeted and random PERM audits will continue. The DOL stated that the 60 to 90 day timeframe discussed in the preamble to the PERM regulation is not binding and is irrelevant if there is an audit. Therefore, once a case has gone into audit, it will most likely not be adjudicated within the 60 to 90 timeframe.
As I had recently mentioned in another one of my other recent blog postings, the American Immigration Lawyers Association (AILA) had reported that the U.S. Citizenship and Immigration Service (USCIS) was going to resume premium processing of I-140 applications for certain individuals. Today, the USCIS released an update and fact sheet addressing this issue.
In its update, the USCIS confirms that on June 16, 2008 it will make available its Premium Processing Service for individuals who are on H-1B status and are reaching the end of their sixth year on H-1B and have I-140 petitions (Immigrant Petition for Alien Worker) filed on their behalf (in our previous report we had reported that USCIS officials were going to open up premium processing on July 16, 2008).
Under the Premium Processing Program, the USCIS guarantees that petitioners would get a response (i.e., approval, denial, request for additional evidence, etc.) within 15 calendar days. This is really good news for individuals running our of time on H-1B status as according to the American Competitiveness in the Twenty-first Century Act of 2000 (AC21), and H-1B nonimmigrant is permitted to extend their status for three years beyond the six year limit provided that the alien is the beneficiary of an approved I-140 petition and an employment-based preference visa is not available for that individual.
The H-1B , is an employment based non-immigrant visa, that enables United States employers to seek highly skilled foreigner workers from around the world to increase productivity and develop new innovations within their fields which ultimately helps the U.S. economy. In return, the U.S. remains at the forefront of technology among other nations of the world, and continues as a major competitor in all other fields. The system was designed to protect both U.S. and foreign workers by: (1) including labor certifications and attestations; (2) implementing costly filing fees; (3) requiring extensive background documentation/proof; and (4) conducting on-site employer investigations and continuous oversight by several federal agencies.
The H-1B program contains strong provisions to ensure that U.S. and foreign workers are protected. Employers must guarantee that the U.S. workers will not be adversely affected upon the hiring of an H-1B professional. A U.S. employer using the program must also guarantee that: (1) the foreign professional will not adversely affect the working conditions of U.S. colleagues; (2) U.S. colleagues will be given notice of the foreign professional’s presence among them; (3) there is no strike or lockout at the worksite; and (4) the position requires a professional in a specialty occupation and the intended employee has the required qualifications. Employers who fail to comply with the Department of Labor (“DOL”) regulations may become subject to investigation, civil and administrative penalties, payment of back wages, and disbarment from participation in key immigration programs.
To ensure that U.S. and foreign workers are protected, each employer must maintain an audit/public access file for each H-1B applicant it has acquired. It is important to keep the public access file separate from all other employee and business files. The employer is required to have a public inspection file and DOL is able to audit that inspection file as well as payroll records to make sure the foreign worker is/was being paid the wage stated in the application. Public access files must be maintained for a period of one year beyond the last date on which any H-1B nonimmigrant was employed under the labor condition application.
U.S. Citizenship and Immigration Services (USCIS) announced on April 10, 2008 nearly 163,000 H-1B petitions received during the filing period on April 1 to April 7, 2008. More than 31,200 of those petitions were for the advanced degree exemption. On April 14, 2008 USCIS 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.
USCIS conducted random selections, first on petitions qualifying for the 20,000 “U.S. 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. Petitioners whose properly filed petitions have been selected 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, unless found to be a duplicate. The total adjudication process is expected to take approximately eight to ten weeks.
USCIS has “wait-listed” some H-1B petitions, 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.
H1B Visa Lawyer Blog