Global Immigration Counsel : Immigration Lawyer & Attorney : Littler Mendelson Law Firm : Permanent Residence, Labor Certification : Global Immigration Counsel

By Ian Macdonald

U.S. Citizenship and Immigration Services ("USCIS") announced on November 23, 2011, that the statutory H-1B cap for FY 2012 was met. USCIS will reject any cap-subject petitions for new H-1B workers that are received by USCIS after November 22, 2011, regardless of when they were postmarked. As a result, employers will be unable to obtain new H-1B petitions with start dates between now and September 30, 2012. The filing period for FY 2013 will open on April 1, 2012, for H-1B petition start dates that will be effective on October 1, 2012, the beginning of FY 2013.

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United States Citizenship and Immigration Services (USCIS) released updated H-1B visa petition numbers for Fiscal Year (FY) 2012, as of October 7, 2011. Since we last discussed H-1B petition numbers (based on filings as of August 26, 2011), 12,000 H-1B regular cap petitions were filed, bringing the total to 41,000. During the same period, 3,300 H-1B Master’s Exemption petitions were filed, bringing that total to 19,100 and very near to the cap amount of 20,000. The H-1B regular cap petitions filed thus far constitute approximately two-thirds of the 65,000 cap amount. Please note that once the Master’s Exemption cap is met, all petitions filed under this category will be applied to the general 65,000 cap automatically by USCIS.

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Under the H-1B visa program, an employer may employ foreign workers in occupations requiring theoretical or technical expertise in a specialized field. An H-1B visa holder is issued a Social Security number (SSN) but is only authorized to work for his or her sponsoring employer.

In response to a recent Department of Homeland Security (DHS) study and criminal investigations launched by the Department of Justice (DOJ) concerning visa fraud, the Social Security Administration’s Office of the Inspector General (OIG) set out to assess whether H-1B workers were properly using their SSNs. In its September 2011 Audit Report, H-1B Workers' Use of Social Security Numbers, the OIG estimated that 18% of H-1B workers assigned a SSN in 2007 may have used their SSN to work for a non-approved employer: specifically, 11% posted wages from an employer other than their approved employer, and 7% posted no wages from fiscal years 2007 to 2009.

Based on its findings, the OIG recommended that the Social Security Administration work more closely with DHS and establish a data match agreement to help DHS identify and reduce improper SSN usage by H-1B visa holders.

Photo credit: Aggressive Entertainment

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By Ian Macdonald

The U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) has released Frequently Asked Questions Regarding Delays Issuing Prevailing Wage Determinations and H-1B Labor Condition Applications (pdf).  OFLC’s current priority is to complete H-2B wage redeterminations, but it also notes that it receives voluminous requests for prevailing wage determinations (PWD) in connection with H-1B petitions. When filing an H-1B petition, the employer must pay to the H-1B employee 100% of the prevailing wage or higher. As OFLC points out in its FAQ document, an OFLC-issued PWD is not mandatory for H-1B petitions, and employers filing petitions may use the following alternative sources for determining a prevailing wage:

• a wage rate included in a collective bargaining agreement;
• a wage rate for the occupation and area of intended employment under the Davis-Bacon Act or the McNamara-O’Hara Service Contract Act;
• a wage rate produced by a survey conducted by an independent authoritative source that meets DOL regulatory standards; or
• a wage rate produced by another legitimate information source, such as the Bureau of Labor Statistics Occupational Employment Statistics Survey or a state-generated prevailing wage survey.

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa petition numbers for Financial Year (FY) 2012, as of August 26, 2011. Since data were last updated (based on filings as of August 12, 2011), 3,700 H-1B regular cap petitions were filed, bringing the total to 29,000. During the same period, 1,100 H-1B Master’s Exemption petitions were filed, bringing that total to 15,800. Although the number of H-1B regular cap eligible petitions filed is less than half of the cap amount – 65,000 – the cap eligible H-1B Master’s Exemption petitions filed constitute more than 75% of the cap amount – 20,000.

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa petition numbers for Financial Year (FY) 2012. Since data were last updated (based on filings as of July 29, 2011), 2,600 H-1B regular cap petitions were filed, bringing the total to 25,300 as of August 12, 2011. During the same period, 900 H-1B Master’s Exemption petitions were filed, bringing that total to 14,700.

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa petition numbers for Financial Year (FY) 2012: 22,700 H-1B regular cap petitions and 13,800 H-1B Master’s Exemption petitions were filed as of July 29, 2011. USCIS began accepting FY 2012 H-1B petitions on April 1, 2011. Limitations for FY 2012 are 65,000 H-1B regular cap visas and 20,000 H-1B Master’s Exemption visas.

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The Foreign Labor Certification Data Center has announced that prevailing wage determination data for the July 2011 to June 2012 program year are now available. The wage data are effective July 1, 2011, and are posted to the Online Wage Library. The data center also hosts Foreign Labor Certification disclosure data for the Permanent, H-1B, H-2A and H-2B programs.

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By Jorge Lopez

Over the past few months, United States Citizenship and Immigration Services (USCIS) has been applying a more restrictive definition of “affiliation” for health care institutions. An affiliation with a university exempts hospitals from having to wait until October to apply for H visas. This exemption is especially advantageous in the health care setting, since many hospital residency and fellowship programs start in June and July, considerably earlier than the October application date.

USCIS’s narrow interpretation of “affiliation” has resulted in visa applications—for extensions as well as for new visas—being denied to health care professionals working in hospitals affiliated with universities, which has in turn impacted graduate medical education programs and the allied health care positions of many health care institutions. The net result has been the reduction in staffing and interruption of graduate medical education programs, among others. Accordingly, on March 16, 2011, USCIS announced interim procedures that will be in effect while the agency reviews its policy on H-1B exemptions for entities affiliated with or related to an institution of higher education. 

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United States Citizenship and Immigration Services (USCIS) has announced a proposed rule designed to decrease administrative and employer costs associated with the H-1B petition process. Under the proposed rule, employers would electronically register with USCIS during an enrollment period of at least two weeks in March of each year, prior to the April 1 filing period start date. Participating employers would file a single registration for each prospective H-1B worker they seek to hire (i.e., multiple prospective H-1B workers could not be listed on a single registration). Unlike current requirements, procuring a Labor Condition Application (LCA) prior to filing a petition would not be required.

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United States Citizenship and Immigration Services (USCIS) has announced that the cap for H-1B petitions (65,000) has been met for FY 2011. Accordingly, USCIS will not consider petitions received after January 26, 2011. However, the agency will continue to accept and process petitions filed to:

• extend the amount of time a current H-1B worker may remain in the United States;
• 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.

As previously noted, the 20,000 petition cap for H-1B Master’s Exemption visas was reached on January 7.

USCIS will continue to receive and process petitions that are otherwise exempt from the caps.

April 1, 2011 is the first day that petitions may be received for FY 2012 with an October 1, 2011 start date.

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa numbers for Financial Year 2011. As of January 7, 2011:

• the 20,000-petition cap for H-1B Master’s Exemption visas has been met; and
• 58,700 H-1B regular cap petitions have been filed, 6,300 petitions shy of the cap amount.

Although the H-1B Master’s Exemption visa cap has been met, USCIS will continue to accept these petitions and count them against the regular cap until said cap is reached.

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On January 2, 2011, President Obama signed H.R. 847, known as the James Zadroga 9/11 Health and Compensation Act of 2010, which provides medical monitoring and treatment for 9/11 first responders. The law will be financed in part by extending the period during which increased application fees for L and H-1B visas will be collected from certain employers. As discussed previously, application fees increased for certain employers by $2,250 (L visas) and $2,000 (H-1B visas) to fund a border protection bill enacted in August 2010. This increase, which was to expire on September 30, 2014, now expires on September 30, 2015.

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United States Citizenship and Immigration Services has released updated H-1B visa numbers for Financial Year (FY) 2011: 53,900 H-1B regular cap petitions and 19,700 H-1B Master’s Exemption petitions were filed as of December 17, 2010. Limitations for FY 2011 are 65,000 H-1B regular cap visas and 20,000 H-1B Master’s Exemption visas. In the past three months, 15,600 regular cap and 5,700 Master’s Exemptions petitions were filed.

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On September 29, 2010, Senators Robert Menendez (D–NJ) and Patrick Leahy (D–VT) introduced “The Comprehensive Immigration Reform Act of 2010” (S. 3932). According to Senator Menendez, the bill “addresses long-standing, wide-ranging flaws in the immigration system that have been priorities of groups on each side of the immigration reform debate.” The bill was introduced shortly before Congress adjourned for its mid-term election recess. As reported by The Hill, Senator Menendez defended his timing for introducing the bill by stating that it could lead to possible “lame-duck movement” on the legislation, and in the longer term it serves as an "invitation to bring Republican colleagues to discussion" on immigration reform.

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United States Citizenship and Immigration Services has released updated H-1B visa numbers for Financial Year (FY) 2011: 38,300 H-1B regular cap petitions and 14,000 H-1B Master’s Exemption petitions were filed as of September 17, 2010. Limitations for FY 2011 are 65,000 H-1B regular cap visas and 20,000 H-1B Master’s Exemption visas. Filing numbers were strong initially, with 19,000 petitions filed in the first week, but slowed afterwards, as we noted in April and June.

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The Department of Homeland Security’s (DHS) Office of Immigration Statistics has released the 2009 Yearbook of Immigration Statistics (pdf). The Yearbook provides statistical data on U.S. immigration, specifically:

• Nonimmigrant Admissions: The number of foreign nationals admitted to the United States on a temporary basis, e.g., as tourists, students, business visitors, or temporary workers. Notably, the number of admissions based on H-1B status (temporary workers in specialty occupations) has decreased from a peak of 461,730 in 2007, down to 409,619 in 2008 and 339,243 in 2009.
• Legal Permanent Residents: The number of foreign nationals who became legal permanent residents.
• Refugees and Asylees: The number of asylum or refugee status applicants.
• Naturalization: How many foreign nationals became naturalized U.S. citizens.
• Enforcement Actions: What enforcement actions were taken by DHS, including apprehension of illegal aliens, removals and prosecutions.

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U.S. Citizenship and Immigration Services (USCIS) announced that, as of August 13, 2010, H-1B and L-1 visa application fees increased by $2,000 and $2,250, respectively, for certain businesses. The fee increases, as previously discussed, are mandated by the recently enacted border security law (Public Law No. 111-230) (pdf). Accordingly, petitioning businesses with 50 or more employees in the United States and with 50% or more of its employees in the United States on H-1B or L visas must submit the additional fees:

• initially to grant an alien nonimmigrant status described in subparagraph (H)(i)(b) or (L) of section 101(a)(15); or
• to obtain authorization for an alien having such status to change employers.

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Computerworld reports that the United States government is reviewing whether the recently-enacted border security law, funded through increased H-1B and L-1 visa application fees for certain foreign-owned companies, runs afoul of World Trade Organization rules, as the law’s opponents and India’s Commerce Secretary contend. However, the issue was only briefly addressed in a recent U.S. Department of State press briefing during which a spokesperson confirmed that discussions about the law were being held between U.S. and Indian officials. Some suggest that the law could increase Indian companies’ U.S. operating costs by $250 million per year.

In a separate article, Computerworld reports that the law has caused rare consensus among H-1B visa advocates and opponents. Individuals on both sides contend that the bill will not create IT jobs for Americans. They suggest that targeted companies—foreign entities operating in the U.S. whose workforce is 50% or more foreign—can easily shift operations to Canada or Latin America. Finally, there are concerns that the fees’ generated revenue is misdirected, and that the funds should be used to spur innovation in the U.S. technology industry rather than to increase law enforcement operations at the United States’ southwestern border.

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During a special session held this morning, the Senate passed a $600 million spending bill (pdf) that will increase law enforcement presence at the United States’ southwestern border with Mexico and will finance additional aerial drones and construction of two operating bases. The Senate passed an identical bill (S. 3721) on August 5 before adjourning for recess, but for technical reasons the Senate needed to approve the version of the bill approved by the House of Representatives on August 10 before sending it to President Obama for signature.

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United States Citizenship and Immigration Services (USCIS) has released updated H-1B visa numbers for Financial Year (FY) 2011: 20,800 H-1B regular cap petitions and 8,700 H-1B Master’s Exemption petitions have been filed as of May 28, 2010. As discussed previously, initial filing numbers were impressive, with 19,000 petitions submitted in the first week. Since then, however, per week filings have decreased in volume.

65,000 H-1B regular cap visas and 20,000 H-1B Master’s Exemption visas are available for FY 2011.

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U.S. Citizenship and Immigration Services announced that, as of April 22, 2010, it has received 16,025 H-1B Regular Cap and 6,739 H-1B Master’s Exemption petitions for Fiscal Year 2011 (October 1, 2010 to September 30, 2011). Petition filing slowed after an active first week in which over 19,000 petitions were submitted. In weeks two and three, combined, only 2,525 Regular Cap and 1,139 Master’s Exemption petitions were filed.

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U.S. Citizenship and Immigration Services (USCIS) announced that it is continuing to accept H-1B nonimmigrant visa petitions for Fiscal Year 2011 (October 1, 2010 to September 30, 2011). The agency began accepting petitions on April 1, 2010, and after one week had received approximately 13,500 petitions subject to the general cap and 5,600 petitions subject to the advanced degree exception. It took approximately nine months for USCIS to receive enough applications to meet the FY 2010 cap, with the bulk of petitions being filed by the end of October 2009.

The H-1B program allows businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, e.g., science, engineering, computer programming. The program allows for 65,000 regular-cap visas, and an additional 20,000 visas for petitioners with advanced degrees (master’s degree or higher).

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The United States Citizenship and Immigration Services (USCIS) recently issued a guidance memo to its adjudication officers, Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third Party Site Placements. The Memo clarifies what constitutes a valid employer-employee relationship in the context of petitions for H-1B visas, which are commonly used by IT staffing agencies and consulting groups for placing skilled workers at third-party worksites. For an analysis of the Memo and its implications for employers, continue reading Littler's ASAP Recent USCIS Memo on Employer-Employee Relationship Requirements for H-1B Visa Petitions: Regulation by Memorandum? by Jorge R. Lopez, Shin-I Lowe and Neil Grindstaff.

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The United States Citizenship and Immigration Services’ (USCIS) Associate Director for Service Center Operations has issued a detailed memo (pdf) regarding how to determine, when evaluating H-1B visa petitions, whether an employer-employee relationship exists and will continue to exist. The memo, which is addressed to USCIS Service Center Directors, discusses:

• scenarios that do and do not represent a valid employer-employee relationship;
• documentation to establish the employer-employee relationship;
• requests for evidence to establish the employer-employee relationship; and
• regulatory compliance.

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The U.S. Department of Labor has provided notice that beginning January 1, 2010, the Office of Foreign Labor Certification National Prevailing Wage and Helpdesk Center in Washington, D.C. will receive and process prevailing wage determination requests for use in H-1B, H-1B1, H-1C, H-2B, E-3 and permanent labor certification programs. In the same notice, the DOL provides guidance about prevailing wage determinations for applications in the Commonwealth of the Northern Mariana Islands, which have been accepted at the center since November 28, 2009.

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U.S. Citizenship and Immigration Services (USCIS) has announced that, as of December 21, 2009, it has received sufficient petitions to reach the statutory cap for fiscal year 2010. Also, USCIS has received more than 20,000 H-1B petitions on behalf of applicants exempt from the cap under the advanced degree exemption. USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009. Employers should note that even those petitions that were filed before the cap closed may be returned by USCIS once the final cap count is completed.

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It is expected that the H-1B cap will be reached this week, if it has not been reached already. USCIS announced on December 17 that, as of December 15, 64,200 of the available 65,000 H-1B numbers for this year had been used. The agency will notify the public once it has received the necessary number of petitions to meet the H-1B cap, known as the “final receipt date.” To ensure a fair system, USCIS will, if needed, implement a lottery system to randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date.

New H-1B cap-subject petitions cannot be filed until April 1, 2010 for an October 1, 2010 start date. Employers should start assessing alternative visa options for affected foreign nationals right away.

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The U.S. Citizenship and Immigration Services has indicated that nearly 62,500 of the available 65,000 H-1B cap-subject petitions have been used for the current fiscal year. Further, it appears that the demand for such H-1B petitions has been increasing in recent weeks, with approximately 1,000 petitions being utilized in the two days prior to the government's most recent tally, which was posted on December 10, 2009. In the prior week, 2,200 petitions were filed. With this trend appearing to continue, it is anticipated that the H-1B cap will be reached within the next week.

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The United State Citizenship and Immigration Services (USCIS) announced that, as of December 10, 2009, 62,500 H-1B petitions had been filed for fiscal year 2010, inching closer to the general H-1B cap of 65,000. Although the H-1B cap of 20,000 for petitioners with advanced degrees already has been reached, USCIS will continue to accept those applications until the general cap is met.

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The Department of Homeland Security (DHS) has released its Semiannual Regulatory Agenda (pdf) for the coming year. Rules addressing the H-1B lottery process and I-9 forms are among the Agency’s regulatory priorities. Continue reading about this development on Littler's Washington D.C. Employment Law Update blog.
 

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It appears that the economy continues to show signs of recovery. U.S. Citizenship & Immigration Services (USCIS) announced that it had received approximately 2,000 H-1B cap-subject petitions in a week. This brings the number of filed H-1B cap-subject petitions to about 58,900. This leaves approximately 6,000 H-1B petitions remaining from the 65,000 general H-1B cap. The 20,000 H-1B advanced degree exemption closed several weeks ago. As reported previously on this blog, employers should immediately assess whether they have any H-1B needs--including whether to file H-1B petitions for F-1 students working pursuant to OPT status early, as well as other candidates who may require H-1B processing--as next year the cap may be reached early if the economy continues to improve.

This entry was written by Ian Macdonald.

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U.S. Citizenship and Immigration Services (USCIS) recently announced that it would temporarily accept H-1B petitions for filing without a certified Labor Condition Application (LCA) from the Department of Labor (DOL). This action is being taken in response to public pressure and to the USCIS Ombudsman’s recommendation that USCIS reinstate its practice of accepting an H-1B petition with evidence of a timely filed LCA with DOL. USCIS had affirmed this practice in 1992, and then again in 2001. USCIS has granted this accommodation for a 120-day period, starting November 5, 2009 and ending March 4, 2010.

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The Wall Street Journal reports that thousands of H-1B visas for fiscal year 2010 remain available. Unlike previous years, when the 65,000 visas available for the year were scooped up by employers within days, factors such as the sagging economy and government investigations into visa fraud have resulted in companies underutilizing the program. Not since 2003—when 323 days elapsed before all fiscal year 2004 H-1B visas were awarded—have visas remained available at such a late stage.

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US Citizenship and Immigration Services (USCIS) has announced that as of October 30, 2009, approximately 53,800 H-1B cap-subject petitions had been filed and received. It also announced that the 20,000 H-1B Advanced Degree Exemption cap had been met, and that all petitions filed for an individual with an advanced degree from a US academic institution will now be counted towards the general H-1B cap of 65,000. 

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The U.S. Citizenship and Immigration Services (USCIS) Ombudsman has discovered (pdf) that iCert, the certification process for Labor Conditions Applications (LCA) operated by the Department of Labor, has been generating false mismatches of Federal Employer Numbers. After examining applications filed between April and August 2009, the Ombudsman found that 7% of denials (approximately 2,900 applications) were incorrect. These errors can hinder the ability to timely file original or extension H-1B visa petitions.

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Even with a considerable decrease in H-1B visa applications during the past year (nearly 20,000 visas remain available for 2009, whereas in 2008 over 163,000 applications were submitted within days of the entry period opening), issues surrounding the H-1B program remain very visible, so much so that Computerworld.com has issued a “10 top H-1B stories” list for fiscal year 2009. The following stories made the list:

1. The H-1B and L-1 Visa Reform Act of 2009. The bill would limit, to 50%, the percentage of visa holders a company could employ in its U.S. workforce.
2. Comprehensive Immigration Reform. Senator Charles Schumer (D-NY), chair of the Immigration, Refugees and Border Security subcommittee, is pushing for reform and supports the H-1B program. At a subcommittee hearing, former Fed Chairman Alan Greenspan spoke in favor of the H-1B visa.
3. TARP. Congress placed H-1B restrictions on banks receiving bailout money.
4. USCIS’s Increased Enforcement Efforts. Reports indicate that 20% of H-1B applications have problems, including fraud.
5. H-1B and Wages. A New York University / University of Pennsylvania study found evidence that H-1B workers reduced tech wages by as much as 6%.
6. The Recession. The economic downturn impacted the number of H-1B applications, particularly in the past few months.
7. Department of Justice Charges. The department filed complaints alleging H-1B fraud against a dozen individuals and companies, which some claim was the largest H-1B enforcement action ever taken by the federal government.
8. The Obama Administration. The President has appointed many H-1B supporters. Officials include IT industry leaders who benefit from the program and have argued for the end of H-1B visa restrictions.
9. Legal Challenges. Tech workers challenged President George W. Bush’s decision to extend (from 12 months to 29 months) the duration of student visas, alleging it created a vehicle to side-step H-1B restrictions.
10. The Shrinking IT Job Market. The H-1B visa program is central to the debate about the effects of globalization on the technology job market.

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Anticipating greater restrictions on H1-B visas, Indian IT firms operating in the United States are considering utilizing NAFTA provisions to avoid staffing shortages. The strategy arose in response to proposed U.S. legislation that would, among other provisions, limit the number of employees on H1-B visas in a company to 50% of its total U.S. workforce. Indian IT firms would be impacted because the majority of their U.S. staff work under H1-B visas. 

As reported by Computerworld, instead of sending Indian professionals to the U.S., they would go to Mexico, and Mexican employees would work in the United States under a TN professional visa, which is easier to obtain than the H1-B. No limit applies to TN visas; they are valid for three years, and they are renewable.

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The H-1B and permanent residency programs are, as reported by Computerworld, under “assault” by the US Citizenship and Immigration Services and other agencies, which have “dramatically increased” the documentation requested of employers seeking to hire workers under the programs. In recent months, requests for evidence are becoming significantly more frequent and expansive, seeking information such as corporate payroll records, zoning maps and building fire-safety plans. 

Among the possible explanations for the stepped-up enforcement are the increased scrutiny required as part of the Troubled Asset Relief Program (which set new H-1B restrictions on firms that received bailout funds) and findings of various problems, including fraud, in nearly one in five H-1B applications (according to a USCIS study (PDF) released in fall 2008).

Crystal Williams, co-director of the American Immigration Lawyers Association (AILA), commented that the document requests are "on the border of harassment," and that the agency is "attempting to build a barrier, to make it as difficult as it possibly can be to get a visa." AILA is gathering evidence to demonstrate that the government is overstepping its authority in this area.

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Secretary of State Hillary Clinton, speaking before the U.S.-India Business Council, outlined her plans for a “dramatic expansion” in U.S./India relations and touched upon concerns voiced by the Indian IT community and the Indian government that proposed restrictions on the H-1B visa program are a form of protectionism. As reported at Computerworld.com, Clinton remarked that both countries should "work through any issues in our relationships and differences in our perspectives by focusing on shared objectives and concrete results." Meera Shankar, India's ambassador to the United States, stated that India's IT talent has helped U.S. firms become more competitive globally, while also stimulating the U.S. economy by creating jobs and increasing profits.

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U.S. Citizenship and Immigration Services (USCIS) has announced that, as of June 19, 2009, approximately 44,500 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

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Som Mittal, president of Nasscom, the industry association representing Indian software and IT services firms, recently met in Washington, D.C. with various U.S. government officials and representatives of trade organizations. In an interview with InformationWeek, Mittal stated that he was in D.C. "to provide perspective on the Durbin-Grassley bill," bipartisan legislation aimed at preventing abuse and fraud in the H-1B and L-1 visa programs. Based on his meetings, Mittal said he thinks that the Obama administration and Congress are likely to consider H-1B and L-1 provisions as part of broader immigration reforms, perhaps later this year.

Mittal also noted that, from his perspective, the H-1B and L-1 visa programs should be considered matters of trade policy rather than immigration, stating: “Our data shows that [H-1B visa holders] stay in the U.S. less than two years.” He further commented:

Other countries, including the U.K., France, Germany, Japan, and India provide work permits to bring in foreign workers temporarily. It's not about immigration, it's about trade.

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Department of Homeland Security Secretary Janet Napolitano, speaking at a Senate Judiciary Committee hearing, stated that ensuring jobs for U.S. workers is one of her "top obligations," and that the DHS is increasing its enforcement of the H-1B visa program. As reported by Computerworld, Napolitano cited new fraud prevention tactics—including visits to work sites—implemented over the past month as an example of measures being taken to prevent abuses of the H-1B program. A 2008 study (PDF) by the U.S. Citizenship and Immigration Service, found that as many as one in five H-1B applications were affected by either fraud or "technical violations" of the program.

Napolitano’s comments were in response to a question from Sen. Richard Durbin (D.-Ill.) raising concerns about H-1B visa holders displacing American workers. Durbin is co-sponsor of the H-1B Visa Fraud and Abuse Protections Act (S. 887) (see our previous post), which includes several enforcement provisions such as audits of employers. Napolitano stated that "our top obligations are to American workers, making sure American workers have jobs."
 

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Former Federal Reserve Chairman Alan Greenspan, appearing before a Senate subcommittee, commented that illegal immigrants make a “significant” contribution to U.S. economic growth by increasing the flexibility of the workforce. As reported at Bloomberg.com, Greenspan also spoke in support of reforming the U.S. immigration laws, calling changes that would create legal avenues for workers to enter the country “badly needed.”

Greenspan was speaking before the Senate Judiciary Subcommittee on Immigration, Refugees and Border Security, which has commenced hearings on revisions to immigration policies. During his remarks, Greenspan also stated that, because U.S. schools do not produce enough skilled workers, the H-1B visa program should be expanded in order to fill the gap with immigrants who hold advanced degrees. 

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On April 27 the U.S. Citizenship and Immigration Services (USCIS) announced that it has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated cap of 65,000 for the fiscal year 2010 program. The agency continues to accept petitions subject to the general cap.

In addition, USCIS has received approximately 20,000 petitions for aliens with advanced degrees. Congress has mandated that the first 20,000 of these petitions are exempt from any fiscal year cap on available H-1B visas. Even though the numbers are close, USCIS will continue to accept advanced degree petitions, since experience has shown that not all petitions received are approvable.

Regular updates on the processing of FY2010 H-1B petitions are available at the USCIS website.
 

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Last week Assistant Senate Majority Leader Richard Durbin (D-Ill.) and Sen. Charles Grassley (R-Iowa) introduced legislation that would completely reform the H-1B and L-1 visa guest worker programs. The H-1B and L-1 Visa Reform Act (S. 887) aims to close perceived loopholes in the programs that critics argue allow foreign workers to displace qualified Americans seeking the same employment.  Continue reading this entry on Littler's Washington DC Employment Law Update blog.

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On April 20, 2009, U.S. Citizenship and Immigration Services (USCIS) provided its second update regarding the H-1B cap count. USCIS has received approximately 44,000 H-1B petitions subject to the regular cap of 65,000. This represents only 1,000 additional filings since April 13th and means that new H-1B petitions may still be filed.

In addition, USCIS has received approximately 20,000 H-1B petitions eligible for the U.S. advanced degree exemption. Although the exemption is limited to 20,000 H-1Bs, USCIS continues to accept petitions since prior experience has shown that a certain percentage of submissions will be denied. Therefore, to reach the 20,000 petitions actually approved, USCIS must accept additional petitions.

This entry was written by Aimee Clark Todd.

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On March 30, 2009, U.S. Representative Jeff Flake (R.-AZ) introduced legislation (H.R. 1791) that would amend the Immigration and Nationality Act to authorize “certain aliens who have earned a Ph.D. degree from a United States institution of higher education in a field of science, technology, engineering, or mathematics” to be exempted from the numerical caps on H-1B visas. The bill, titled “Stopping Trained in America Ph.D.s From Leaving the Economy Act of 2009” (the “STAPLE Act”), was referred to the House Judiciary Committee. In addition to the exemption from the H-1B numerical cap, the legislation also would exempt the specified foreigners from the numerical limitations on permanent residence.

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Senators Dick Durbin (D-Ill.) and Chuck Grassley (R-Iowa) plan to reintroduce legislation that would require employers to make a “good faith” effort to hire U.S. citizens over H-1B visa holders, Computerworld.com reports. The two senators introduced a similar bill in March 2007, but that bill died after being folded into a comprehensive immigration reform bill that never went up for a vote.

The bill that Grassley and Durbin proposed in 2007, which they called “The H-1B and L-1 Visa Fraud and Abuse Prevention Act,” will be reintroduced with some changes, but its general outline is expected to remain the same. The 2007 bill would have required employers to advertise job openings for 30 days before submitting H-1B applications for those positions. The bill also sought to prevent employers from hiring H-1B workers and then outsourcing them to other companies.

The widespread layoffs being caused by the economic downturn may increase the chances of success for a new bill. Earlier in 2009, Grassley and Sen. Bernie Sanders (I-Vt.) succeeded at getting H-1B hiring restrictions on financial services firms receiving federal bailout money into the economic stimulus package.
 

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Yesterday the immigration community was surprised to learn that while the 20,000 H-1B numbers set aside for the advanced U.S. degree cap were nearly all accounted for, only two-thirds of the 65,000 regular H-1B cap numbers were used up. This means that the U.S. Citizenship and Immigration Services (USCIS) continues to accept applications for initial H-1B status more than a week after the H-1B filing season opened up on April 1st. This is in stark contrast to the 133,000 H-1B petitions received within the first two days of filing last year.

This scenario is not surprising because of the available H-1B numbers. Indeed, the battered U.S. economy coupled with the recent legislative action against recipients of Troubled Assets Relief Program (TARP) funding foreshadowed less demand for H-1Bs this year.

The intriguing part is the inversion of the regular and advanced U.S. degree caps. From the time the 20,000 set aside came into existence for those holding advanced U.S. degrees, it has always taken longer to exhaust than the 65,000 regular H-1B numbers. This indicates that similar numbers of foreign students getting U.S. masters and doctorate degrees are being sponsored for H-1B status, while the demand for those holding bachelors degrees or foreign degrees has dropped significantly.

This does not mean that petitions should not be filed on behalf of individuals possessing advanced U.S. degrees. It simply means that their H-1Bs will now be drawn from the remaining regular cap numbers.

On the day USCIS determines that sufficient petitions have been received to meet the annual limit, a random selection lottery will be conducted for all cases received on that day. Cases not selected in the lottery will be rejected.

This entry was authored by Chad Graham.

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U.S. Citizenship and Immigration Services (USCIS) has announced that on April 1, 2009 it will begin accepting H-1B petitions for the fiscal year 2010. Petitions will be considered accepted on the date that USCIS takes possession of the petition, not the date that the petition is postmarked. H-1B petitions cannot be filed more than six months in advance of the requested start date.

The H-1B program allows businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers. The 2010 fiscal year numerical cap for H-1B petitions is 65,000, but the first 20,000 H-1B petitions filed on behalf of foreign citizens who have earned a U.S. masters’ degree or higher will be exempt from the cap. H-1B petitions for employment at institutions of higher education or related or affiliated nonprofit organizations, nonprofit research organizations, or governmental research organizations also will be exempt from the cap.

Detailed information, including a processing worksheet, to assist in the completion and submission of fiscal year 2010 H-1B petitions is available on the USCIS web site www.uscis.gov or by contacting the USCIS National Customer Service Center at (800) 375-5283.
 

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On Friday, the United States Citizenship and Immigration Services (USCIS) announced that employers receiving funds through the Troubled Asset Relief Program (TARP) or under section 13 of the Federal Reserve Act (covered funds) must meet additional requirements before hiring foreign nationals to work in the H-1B specialty occupation category. Continue reading on Littler's Washington DC Employment Law Update blog. 

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As reported at CNNMoney.com, immigration experts expect H-1B visa applications for 2009 to be at their lowest levels in years. Some even predict that after April 1, the first day on which applications may be filed, it could take a week or more to fill the quota of 85,000 visas (as compared to past years, when the quota has been met in as little as 48 hours). Several factors account for this year's reduced demand, including the economic downturn and new restrictions on H-1B hiring at some firms. One result of the lower demand is that smaller businesses have the best chance in years to succeed with their H-1B applications.

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As of March 2, the U.S. Citizenship and Immigration Services (USCIS) has expanded Premium Processing Service for designated Forms I-140 (Immigrant Petition for Alien Worker) to include alien beneficiaries who have reached, or are reaching, their limitation of stay in H-1B nonimmigrant status.  Previously, only certain alien beneficiaries who were in H-1B nonimmigrant status at the time of filing were able to request premium processing for Form I-140. 

As a result of this action (further details are available in a fact sheet), USCIS will accept Form I-907 (Request for Premium Processing Service) for alien worker petitions filed on behalf of alien beneficiaries who, as of the date of filing the Form I-907:

• are the beneficiary of a Form I-140 petition filed in a preference category that has been designated for premium processing service;
• have reached the sixth-year statutory limitation of their H-1B stay, or will reach the end of their sixth year of H-1B stay within 60 days of filing;
• are only eligible for a further H-1B extension under section 104(c) of the American Competitiveness in the Twenty-first Century Act of 2000 (AC21); and
• are ineligible to extend their H-1B status under section 106(a) of AC21.

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The American Recovery and Reinvestment Act of 2009, signed by President Obama on February 17, imposes limits on the availability of H-1B visas, but the E-Verify amendment proposed in an earlier version of the bill was eliminated from the final version. Continue reading Littler's ASAP, "Besides COBRA: What Does the Stimulus Package Have for Employers," by Ellen N. Sueda, GJ Stillson MacDonnell, Patricia A. Haim, and Chadwick M. Graham.

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H-1B employment visas, widely issued by high-tech companies, have been issued to hundreds of thousands of foreign professionals. As reported in The Seattle Times, the economic downturn is having a dramatic impact on H-1B visa holders, who are "out of status" as soon as losing a job, and must find another employer sponsor in order to regain status. And, with U.S. unemployment rates soaring, employers are under increased pressure to cut their foreign workforce first. This is happening even as employers prepare and submit applications to hire up to 85,000 new H-1B workers nationwide.

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The Senate has approved a modified amendment to the massive stimulus bill (H.R. 1) that substantially limits employers that receive Troubled Asset Relief Program (TARP) funds from hiring employees who hold H-1B work visas. This amendment was sponsored by Senators Bernard Sanders (I-VT) and Charles Grassley (R-Iowa). Continue reading on Littler's Washington DC Employment Law Update blog.

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As reported at eWeek.com, Senator Judd Gregg (R-N.H.), President Obama’s nominee to run the Department of Commerce, strongly supports expanding the H1-B visa program.
A favorite of U.S. technology companies, the H-1B program allows U.S. companies and universities to employ foreign guest workers with training in job categories that qualify as a “specialty occupation.” Senator Gregg commented: “Helping the high tech industry tap into highly skilled talent from around the world and address well-documented labor shortages not only keeps our economy strong, but creates U.S. jobs and deters employers from sending work elsewhere.”
 

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Given the current economic crisis and other pressing issues facing the new president, sweeping immigration legislation is unlikely. Immigration policy in general is a contentious topic, so expect more piecemeal legislation as opposed to radical, across-the-board reform, as even in this economy there are areas where the shortages are not meeting our demographic needs, such as healthcare recruitment. Continue reading entry on Littler's Washington DC Employment Law update blog.

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