e-newsletters archive

Vol. XXIII, no.06, April 24, 2013, Issue no 2

USCIS used computer-generated random selection process to select cap-subject H-1B petitions since it received more petitions than the H-1B numerical cap for the FY 2014 

April 8, 2013, WASHINGTON— For the first time since 2008, USCIS reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under 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. USCIS received approximately 124,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with the 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. Additionally, 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. Because of this change, the fifteen days premium processing timeline will kick in only on April 15, 2013.

Since  the accepted cap-subject petitions were selected randomly, it is unpredictable to ascertain whether a petition was accepted for the quota. Because of the lottery process and the time required to enter the data about the H-1B petitions, it is expected to take a couple more days or even a few weeks to receive the actual receipt notice from USCIS.

Rakesh Mehrotra spoke at a workshop for international students and scholars at George Mason University
Mr. Mehrotra speaking at the workshop at George Mason University
Last month, Rakesh Mehrotra, Managing Attorney and Founder of the Law Offices of Rakesh Mehrotra, spoke at a workshop for international students and scholars at George Mason University, Fairfax, VA. His presentation covered immigration as well as employment based visa options for international students and scholars in the private sector, including H-1B and other temporary work visas and employment-based permanent residency in the U.S.
At the workshop, participants were able to ask various types of questions about immigration law and policies. The audience included senior officials from the Office of International Programs and Services of George Mason University, namely the Associate Director for Immigration Compliance Ms. Christina Lehnertz, and International Faculty and Scholar Advisor Ms. Noelle Deola.
George Mason University is widely known as a top-tier university in the United States and has a high international reputation. The university attracts the best and brightest students and scholars from across the U.S. and countries around the world. We are well known to organizations, companies and individuals across the United States, and locally in the greater Washington area and Commonwealth of Virginia. Our attorneys have been speakers at various business and community forums.
Our  Our firm provides legal services on all aspects of U.S. Immigration & Nationality Law in all fifty states. Our lawyers specialize in business and professional immigration matters including E/H/L/O visas, permanent residence through Labor Certifications, Multinational Executives/Managers, National Interest Waivers and other complex immigration cases. Our clients range from individuals and small businesses to large corporations. We keep pace with rapidly changing immigration laws by constantly monitoring and analyzing the latest developments at different government agencies and the U.S. Congress. We successfully manage an extensive number of cases for larger corporate clients. We provide employers and employees with the latest and the most appropriate immigration advice, customized to their individual needs. We pride ourselves in providing each client with successful results by considering all appropriate options and offering innovative strategies. We take personal pride in the quality of our work, our attention to detail and efficient handling of cases.

 

Newsletter Vol. XXIII, no. 04, March 14, 2013, Issue No. 1 

 1. Sequestration May Affect USCIS and Department of Labor Processing  Times 

 The “sequester” or “sequestration” refers to budget cuts to particular categories of federal spending that took effect March 1, 2013. The cuts were established by the Budget Control Act of 2011. The area of federal spending most affected by sequestration is called discretionary spending, which includes defense and non-defense elements. Discretionary spending represented approximately 36% of federal outlays in 2012. The Washington Post article explained the possible effects sequestration may have on immigration system.

How USCIS Processing may be affected by Sequestration
Last month, the Under Secretary of Management of The Department of Homeland Security (DHS) issued a memo regarding sequestration. Because of sequestration, the DHS budget will be decreased and agencies within the DHS will be impacted. Agencies such as Immigration and Customs Enforcement (ICE) and Customs and Border Protection (CBP) will be hardest hit. Therefore there will be fewer agents, airport screeners and border agents on duty, and these staffing decreases will likely affect processing times for immigration applications. While USCIS will lose some funding, most of its budget is derived from the fees it receives from processing various types of applications and services, so USCIS might not be impacted as greatly as ICE or CBP. However, a large scale cuts for other related agencies will likely affect USCIS operations to some degree.
How the Department of Labor may be affected by Sequestration  
Typically, employers submitting LCAs to the Department of Labor (DOL) can expect a response within seven working days, unless there are obvious inaccuracies. However, there could be a potential delay in LCA processing (a pre-requisite for H-1B petitions), Prevailing Wage Determinations, and PERM Processing timelines due to decreased staff at the Office of Foreign Labor Certification at DOL. Recently there was technical glitch on the iCERT online Portal System and the issue has been left unresolved for two days. This delay might be due to the seriousness of the technical glitch, but it may also be a result of the staff shortage.
Conclusion

We expect that the actual effects of sequestration may be less severe that it has been previously discussed publicly. However, it is important to keep in mind that there could be possible delays in all immigration processing due to sequestration.

2. USCIS Published a New Version of the Form I-9, Employment Eligibility Verification and also     Revised the Handbook for Employers for Completing the Form I-9  
On March 8, 2013, USCIS published a new Form I-9, Employment Eligibility Verification. The form is available for immediate use by employers. Employers who need to make necessary updates to their business processes to allow for use of the new Form I-9 may continue to use other previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09)Y until May 7, 2013. After May 7, 2013, all employers must use the revised Form I-9 for each new employee hired in the United States. The revised Form I-9 has several new features, including new fields and a new format to reduce errors. The instructions to the form also more clearly describe the information employees and employers must provide in each section. English and Spanish versions of the new form are available online at www.uscis.gov and I-9 Central.
On March 11, 2013, USCIS also revised the handbook for employers, “Handbook for Employers, Guidance for Completing the Form I-9 (M-274)”. This handbook has been updated to include information about the revised Form I-9. The name of the Handbook has also changed slightly.  The word “Guidance” has replaced “Instructions”, helpful new images have been added to illustrate how employees and employers can complete Section 1-3 of the new form, and it provides updated guidance on recording changes of name and other identity information.

Vol. XXIII, no.03, February 15, 2013, Issue no 1

 1. In his his first State of the Union address after re-election President Obama 

called on Congress to send him a comprehensive immigration reform bill “in the next few months”

Picture: U.S. House of Representiative

February 13, 2013: At the invitation of House Speaker John Boehner, President Barack Obama delivered the 92nd State of the Union Address at the Capitol on Tuesday, February 12, 2013. In addition to members of the U.S. House of Representatives and the U.S. Senate, attendees included the President’s Cabinet, the Joint Chiefs of Staff, the Chief Justice and Justices of the U.S. Supreme Court, and the U.S. Diplomatic Corps.

In this first State of the Union address after his re-election, President Obama called on Congress to send him an immigration reform bill “in the next few months”. “We know what needs to be done”, President Obama said in his address. He applauded the efforts of bipartisan groups in both chambers of Congress to draft a comprehensive immigration bill. “Now let’s get this done. Send me a comprehensive immigration bill in the next few months and I will sign it right away”, President Obama said. The Obama administration has devoted increased attention to immigration reform in his second term in office. Last month in Las Vegas, President Obama spoke about creating a fair and effective immigration system.

“Leaders from the business, labor, law enforcement, and faith communities, they all agree that the time has come to pass comprehensive immigration reform”, he said in his address. President Obama said, “Real reform means establishing a responsible pathway to earned citizenship, a path that includes passing a background check, paying taxes and a meaningful penalty, learning English, and going to the back of the line behind the folks trying to come here legally”. He further explained, “And real reform means fixing the legal immigration system to cut waiting periods and attract the highly skilled entrepreneurs and engineers that will help create jobs and grow our economy”.

President Obama’s proposal for immigration reform has four parts. First, continue to strengthen our borders. Second, crack down on companies that hire undocumented workers. Third, hold undocumented immigrants accountable before they can earn their citizenship; this means requiring undocumented workers to pay their taxes and a penalty, move to the back of the line, learn English, and pass background checks. Fourth, streamline the legal immigration system for families, workers, and employers. Please see The fact sheet about President Obama’s proposals. For more information, see here

2. Plan early to meet Fiscal Year 2014 H-1B numerical cap  
Our Law Offices suggest H-1B petitioners keep in mind that USCIS will begin accepting H-1B petitions on April 1, 2013 for the Fiscal Year (FY) 2014 H-1B  quota cases. If the petition is approved the H-1B beneficiary can start working on October 1, 2013 or earlier if he/she is eligible for H-1B cap-gap. It is very important to start the H-1B sponsorship process as soon as possible to make sure all the petitions are timely filed.
2.  FY 2014 H-1B Cap and Cap Amounts 
Last year, USCIS received a sufficient number of H-1B petitions to reach the statutory cap for FY 2013 on June 11, 2012. After the numerical cap is reached, USCIS will reject petitions subject to the H-1B. The current annual cap on the H-1B category is 65,000, and out this up to 6,800 visas are set aside each fiscal year for the H-1B1 program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B specialty occupation workers for the next fiscal year.

There is a high likelihood that the FY 2014 H-1B quota might be reached much earlier than last year. It should be noted that in the past the numerical quota was reached in a short period of time, sometimes within a week.

Therefore, it is better to plan everything in advance so that all H-1B petition will be filed in a timely manner.

Most importantly, USCIS will continue to accept H-1B petitions that are not subject to annual numerical limitations, (e.g. H-1B amended petitions, H-1B extensions for individuals who have already been counted against the cap within the last six years, etc.), DOD petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2014.

Please note the following tips to ensure that your petition is filed timely: 

– Get all supporting documents ready (letters of support, end-client letter, necessary fees, etc.).

– Before filing the H-B petition the employer has to receive a certified Labor Condition Application (LCA) from the Department of Labor (DOL). It typically takes about seven business days for the DOL to certify an LCA, so the LCA should also be filed as soon as possible.

– Evidence of Beneficiary’s Educational Qualifications:

  • A copy of beneficiary’s final transcripts.
  • Petition has to include evidence of the beneficiary’s educational degree at the time of filing.  If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted:
    •  A copy of the beneficiary’s transcript and a letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded).
  • If you are indicating that the beneficiary is qualified based on a combination of education and experience, we would have to include substantiating evidence to show that.
  • ​If the beneficiary has a foreign academic degree and professional experience letters then we may need to obtain a credential evaluation, a process that can also take a few days.