Corporate Immigration Law News

• 26Oct

  H-1B Visas Are Still Available!

  H-1B Visa News Comments Off on H-1B Visas Are Still Available!

  After nearly seven months of filings, USCIS has announced that, as of October 14, 2011, approximately 43,300 H-1B cap-subject petitions were receipted.  Additionally, USCIS announced that it has receipted 19,600 H-1B petitions for foreign nationals with advanced degrees.  When comparing those figures to the H-1B numbers from the prior fiscal year, it is our current projection that Congress’ quota of 85,000 cap subject H-1B visas will be exhausted sometime in December 2011.

  With that said, if your business is considering the sponsorship of an H-1B worker subject to the H-1B cap (e.g., a foreign student who is in F-1 status and working pursuant to OPT, or any other foreign national who is not currently or was not previously in H-1B status), you should strongly consider filing such petition sooner rather than later before the H-1B visa numbers are exhausted.  Otherwise, you may be left to wait until October 1, 2012 to hire new H-1B workers (when the 2013 H-1B quota becomes available).

  It is important to note that H-1B visa extensions of stay and H-1B visa transfers (from one eligible U.S. H-1B employer to another) are not subject to the annual H-1B cap and, therefore, are regularly accepted by USCIS.  Likewise, H-1B nonimmigrants who work at (but not necessarily for) eligible research institutions, universities and other qualifying non-profit facilities may also be excluded from the H-1B visa cap and, thus, may not need to concern themselves with the H-1B quota under the cap.

  If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

  Tags: 2010 cap count, alternative to H-1B visa, fiscal year 2010 h-1b cap, FY 2011 cap, H-1B alternative, H-1B cap, H-1B quota, H-1B visa cap, H-1B visas remaining, h1b visa, premium processing, prevailing wage, Specialty Worker, USCIS cap

• 13Jul

  USCIS Updates The H-1B Cap Count

  H-1B Visa News Comments Off on USCIS Updates The H-1B Cap Count

  As of July 1, 2011, United States Citizenship and Immigration Services (“USCIS”) announced that 19,000 H-1B petitions filed under the regular cap and 12,200 H-1B petitions filed under the U.S. Master’s exemption cap have been received.

  Such reduced H-1B usage is certainly an indication that the U.S. economy continues to struggle.  Indeed, in fiscal year 2007 and 2008, the H-1B cap was used up in the first few days of filing.  In fiscal year 2009, however, with U.S. unemployment peaking at 10.1%, the filing period for new H-1B visas remained open for nearly nine (9) months. Although no one can predict with any certainty whether that will happen again, given the current H-1B usage and the current state of the U.S. economy, we anticipate the H-1B filing window to remain open for the foreseeable future.

  Therefore, this year is another opportunity for employers who, in the past, may have opted not to file H-1B petitions for otherwise eligible workers because of the potential for wasted efforts and resources should the petitions not be selected in the random lottery utilized in prior years.

  The annual cap or quota for new H-1B visas is set by Congress at 65,000 new visas per year, not including the 20,000 H-1B visas available under the U.S. advanced degree cap exemption.  Please note that the cap applies only to petitions for new employment; beneficiaries of H-1B extensions and transfers (from one U.S. employer to another) are not subject to the annual quota.  Additionally, employees of qualified institutions of higher education and certain non-profit or government-sponsored research organizations are typically exempt from the cap.

  Tags: 2012 cap, 2012 cap count, FY 2011 cap, H-1B cap, H-1B quota, H-1B visa cap, H-1b visa cap news, H-1B Visa News, H-1B visas remaining, h1b visa, LCA, Specialty Worker, USCIS cap

• 01Apr

  The H-1B Cap For Fiscal Year 2012 Is Officially Open!

  H-1B Visa News Comments Off on The H-1B Cap For Fiscal Year 2012 Is Officially Open!

  USCIS has begun accepting H-1B petitions subject to the Fiscal Year (“FY”) 2012 cap today, April 1, 2011. Cases will be considered “accepted” on the date USCIS receives the properly filed H-1B petition; not the date that the petition is postmarked.

  The H-1B cap for new H-1B petitions is set by Congress at 65,000 per year and, of that number, 6,800 visas are automatically set aside for qualified foreign nationals from Chile and Singapore based on Free Trade Agreements with the United States. An additional 20,000 H-1B visas are available to qualified candidates with a U.S. Master’s Degree.

  With a steadily improving economy in the U.S., demand for new H-1B visa numbers under the FY 2012 cap is expected to be greater than in the last fiscal year.

  If approved, the start date for employees with FY 2012 cap-subject petitions will be on or after October 1, 2011, depending on the specific facts of the case and the actual date of filing.

  H-1B visa extensions of stay and H-1B visa transfers (from one eligible U.S. H-1B employer to another) are not subject to the annual H-1B cap and, therefore, are regularly accepted by USCIS. Likewise, H-1B nonimmigrants who work at (but not necessarily for) eligible research institutions, universities and other qualifying non-profit facilities may also be excluded from the H-1B visa cap and, thus, do not need to wait until April 1 to file such cap-exempt H-1B petitions.

  If you have any questions about the H-1B cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

  Tags: 2012 cap, 2012 cap count, fy2012 cap, H-1B cap, H-1B cap count, H-1B quota, H-1B visa cap, H-1b visa cap news, H-1B Visa News, H-1B visas remaining, LCA, Specialty Worker, USCIS cap

• 31Jan

  USCIS Reaches The H-1B Cap For FY 2011

  Uncategorized Comments Off on USCIS Reaches The H-1B Cap For FY 2011

  U.S. Citizenship and Immigration Services (“USCIS”) has recently announced that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (“FY”) 2011.  As such, USCIS notified the public that January 26, 2011, was the “final receipt date” for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

  The “final receipt date” is the date upon which USCIS has determined that it has received enough H-1B cap-subject petitions to reach the Congressionally-mandated cap of 65,000 new H-1B visas. Properly filed cases are considered received on the date that USCIS actually receives the petition; not the date that the petition was postmarked.  USCIS  has advised that it will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after January 26, 2011.

  As for those petitions filed on January 26, USCIS will apply a computer-generated random selection process to select petitions needed to meet the cap.  USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying filing fees.

  Given the exhaustion of H-1B visa numbers for fiscal year 2011, employers are left with no choice but to consider alternative visa options for employing qualified foreign-born professionals. While there are a limited number of options presented from the “alphabet soup” of temporary visa categories available, there are, indeed, viable options for potential hires for whom you cannot (or will not) wait until October 1, 2011 to employ.

  For a survey of viable alternatives to the H-1B visa, please click here to review our article in the New Jersey Law Journal, Employment And Immigration Law Regional General Counsel Supplement.

• 03Jan

  H-1B Visa Numbers Are Dwindling!

  H-1B Visa News Comments Off on H-1B Visa Numbers Are Dwindling!

  USCIS has announced that, as of December 17, 2010, approximately 53,900 H-1B cap-subject petitions were receipted.  Additionally, USCIS receipted 19,700 H-1B petitions for aliens with advanced degrees. Taking into account the numbers reserved by treaty for nationals of Singapore and Chile (up to 6,800), there may be less than 5,000 new H-1B visa numbers available for this fiscal year ending September 30, 2011.

  Therefore, if your business is considering the sponsorship of an H-1B worker subject to the H-1B cap (e.g., a foreign student who is in F-1 status and working pursuant to OPT or any other foreign national who is not presently in H-1B status), you should strongly consider filing such petition as soon as possible before the H-1B visa numbers are exhausted.  Otherwise, you will be left to wait until October 1, 2011 before the new H-1B quota becomes available.

  It is important to note that H-1B visa extensions of stay and H-1B visa transfers (from one eligible U.S. employer to another) are not subject to the annual H-1B cap and, therefore, will continue to be regularly accepted by USCIS.  Likewise, H-1B nonimmigrants who work at (but not necessarily for) eligible research institutions, universities and other qualifying non-profit facilities may also be excluded from the numerical H-1B visa cap.

  If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

  Tags: H-1B cap-subject petitions, H-1B visa cap, H-1B Visa News, hiring foreign student, OPT, USCIS

• 16Dec

  H-1B/L/O-1 Petitioners Beware! New Affirmation Requirement Regarding Release of Controlled Technology or Technical Data to Foreign Nationals

  H-1B Visa News, L-1 Visa News, O-1 Visas Comments Off on H-1B/L/O-1 Petitioners Beware! New Affirmation Requirement Regarding Release of Controlled Technology or Technical Data to Foreign Nationals

  On November 23, USCIS published a revised version of Form I-129, Petition for Nonimmigrant Worker.  The new form requires petitioners to take some additional steps to ensure that export compliance is properly evaluated and that their attestations are accurate.

  With regard to export compliance, the new Form I-129 includes a new Part 6, entitled “Certification Regarding the Release of Controlled Technology or Technical Data to Foreign Persons in the United States” which requires petitioners that seek to employ foreign nationals in H, L, and O nonimmigrant visa status to certify that the company (i) has reviewed the Export Administration Regulations (“EAR”) and the International Traffic in Arms Regulations (“ITAR”), and (ii) made a determination as to whether or not an export control license is required to release any controlled technology or technical data to the foreign national.

  More specifically, the revised form contains explicit language in Section 6 that requires the petitioner to affirm that, with respect to technology or technical data that the petitioner will release or otherwise provide access to the beneficiary:

  (i) A license is not required from the Department of Commerce or the Department of State to release such technology or technical data to the foreign person; OR

  (ii) A license is required from the Department of Commerce or the Department of State to release such technology or technological data to the beneficiary and the petitioner will prevent access to controlled technology or technical data by the beneficiary until and unless the petitioner has received the required license or other authorization to release it to the beneficiary.

  Such affirmation necessarily requires some due diligence in reviewing the beneficiary’s job to make sure it does not require a license (which the employer would otherwise have to obtain) before the beneficiary can do the job for which he/she is being hired.

  If, in fact, an export license is required before making such a release, the employer must attest that the foreign worker will not be exposed to any covered “technologies” without first obtaining the requisite license to cover the foreign worker.  It is very important that you do not make a misrepresentation on Form I-129 in this regard, which in itself could be construed as a violation of federal law.  Please read the new Form I-129 and its instructions before signing the Form I-129 under penalty of perjury.

  While the new form is effective now, petitioners may continue using the former version of the form (which does not include any reference to export license requirements) until December 23, 2010.

  Those responsible for completing the Form I-129 should  consult with export counsel to determine whether an export license is required, and to implement appropriate technology safeguards.

  Tags: Controlled Technology, EAR, Expires 10/31/2013, Export Administration Regulations, Export Compliance, International Traffic in Arms Regulations, ITAR, New Form I-129, Technical Data to Foreign Persons

• 11Nov

  New And Increased USCIS Filing Fees For Certain Immigration Benefits Effective November 23, 2010

  E-2 Investor Visas, H-1B Visa News, L-1 Visa News Comments Off on New And Increased USCIS Filing Fees For Certain Immigration Benefits Effective November 23, 2010

  U.S. Citizenship and Immigration Services (“USCIS”) published a final rule modifying (mostly increasing) filing fees for certain immigrant and nonimmigrant applications and petitions. All applications and/or petitions mailed, postmarked or otherwise filed on or after November 23, 2010, must include the new fee amounts listed below.

  Fee Increases:

  Premium Processing service increased from $1,000 to $1,225.

  Form I-129 (H-1B, L-1, E-1, E-2) increased from $320 to $325.

  Form I-140 (second step of the green card process) increased from $475 to $580.

  Form I-485 including biometrics (third & final step of the green card process) increased from $1010 to $1070.

  Form I-129B (motion to reopen/reconsider) increased from $585 to $630.

  Form I-751 (removal of conditional LPR status) increased from $465 to $505.

  Fee Reductions:

  Form I-539 (Application to Extend/Change Nonimmigrant Status)  reduced from $300 to $290

  Form I-129F (Fiancé Petition) reduced from $455 to $340

  If you have any questions, please do not hesitate to contact us.

  Tags: I-129, I-140, premium processing, USCIS fee increase, USCIS filing fees

• 04Oct

  Registration For 2012 Diversity Visa (Green Card) Lottery Begins Tomorrow!

  Diversity Visa Lottery, Green Card News Comments Off on Registration For 2012 Diversity Visa (Green Card) Lottery Begins Tomorrow!

  The Department of State announced the opening of the registration period for the DV-2012 Diversity Visa lottery.  Entries for the DV-2012 Diversity Visa lottery must be submitted electronically between noon, Eastern Daylight Time (EDT), Tuesday, October 5, 2010, and noon, Eastern Daylight Time (EST), Wednesday, November 3, 2010.

  Instructions for the 2012 Diversity Immigrant Visa Program (DV-2012):
  The congressionally mandated Diversity Immigrant Visa Program is administered on an annual basis by the Department of State. The Program makes available 55,000 permanent resident visas (green cards) annually to persons from countries with low rates of immigration to the United States.

  The annual DV program makes permanent residence visas available to persons meeting the simple, but strict, eligibility requirements. Applicants for Diversity Visas are chosen by a computer-generated random lottery drawing. The visas, however, are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to citizens of countries sending more than 50,000 immigrants to the U.S. in the past five years. Within each region, no one country may receive more than seven (7%) percent of the available Diversity Visas in any one year.

  Countries Not Eligible:
  BRAZIL, CANADA, CHINA (mainland-born), COLOMBIA, DOMINICAN REPUBLIC, ECUADOR, EL SALVADOR, GUATEMALA, HAITI, INDIA, JAMAICA, MEXICO, PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM.

  Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
  For DV-2012, no countries have been added or removed from the previous year’s list of eligible countries.
  

  Electronic Registration:

  The Department utilizes special technology and other means to identify those who commit fraud for the purposes of illegal immigration or who submit multiple entries. For DV-2012, those who submit entries may check the status of entries online and determine whether their entries are selected or not. Successful entrants will continue to receive notification letters by mail.

  Application Submission Dates:

  Entries for the DV-2012 DV lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 5, 2010, and noon, Eastern Daylight Time (EDT) (GMT-4), Wednesday, November 3, 2010. Applicants may access the electronic DV Entry Form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon, EDT, on November 3, 2010.

  Click here for the requirements for entry and detailed instructions.

• 07Jul

  H-1B Visas Are Still Available!

  H-1B Visa News Comments Off on H-1B Visas Are Still Available!

  The annual cap for new H-1B visas is set by Congress at 65,000 new visas per year, not including the 20,000 H-1B visas available under the U.S. advanced degree cap exemption.

  As of July 2, 2010, approximately 24,200 H-1B cap-subject petitions were receipted. Additionally, USCIS has reported receipting 10,400 H-1B petitions for aliens with advanced degrees.

  Tags: FY 2011 cap, H-1B cap, H-1B cap count, H-1B quota, H-1b visa cap news, H-1B Visa News, H-1B visas remaining, h1b visa, Specialty Worker, USCIS cap, work authorization

• 29Jun

  USCIS Updates H-1B Cap Count

  H-1B Visa News Comments Off on USCIS Updates H-1B Cap Count

  The annual cap for new H-1B visas is set by Congress at 65,000 new visas per year, not including the 20,000 H-1B visas available under the U.S. advanced degree cap exemption. As of April 1st, the “filing season” for new H-1B visas was officially underway.

  USCIS has recently announced that, as of June 18, only 22,900 H-1B petitions filed under the regular cap and 9,700 H-1B petitions filed under the Master’s exemption cap have been received.

  Tags: 2010 cap, 2010 cap count, advanced degree petition, FY 2011 cap, H-1B, H-1B alternative, H-1B cap, H-1B quota, H-1B visa cap, H-1b visa cap news, H-1B Visa News, H-1B visas remaining, h1b visa, Specialty Worker, USCIS cap

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