Visa Bulletin - October 2011

October 2011 Visa Bulletin which is the first Visa Bulletin for the current FY 2012 was released on Friday. The major surprise for the October visa bulletin was the 3 month movement for the EB-2 China and EB-2 India categories. This movement came as surprise for many people. DOS took this step to gauge demand for  FY 2012 as cut-off dates for  EB2-IC is  now reaching the latest PD of July 2007 that was ever current. EB3 categories advanced as expected, as of now there is no deviation from our estimation. Family Based category also saw some interesting movement.

Employment-Based (EB)
Below is a summary of the October 2011 Visa Bulletin with respect to employment-based petitions:

• EB-1 remains current across the board.
• EB-2 saw some interesting movement.: EB-2 ROW (Rest of World), Mexico and Philippines remain current while EB-2 China and EB-2 India moved to July 15, 2007.
• EB-3 ROW, EB-3 Mexico and EB-3 Philippines move forward by two (2) weeks to December 08 , 2005, EB-3 China  moves forward by three (3) weeks to August 08, 2004, while EB-3 India  moves forward by one (1) week to July 15, 2002.
• The “other worker” category remains unchanged at  April 22, 2003 for China.  It moves forward by six (6) weeks for ROW, Mexico and Philippines to September 15, 2005.  It also moves forward by one (1) week for India to June 8, 2002

Family-Based (FB)

Below is a summary of the October 2011 Visa Bulletin with respect to family-based petitions:

• FB1 moves forward (finally!).  FB1 ROW, China and India all move forward by six (6) weeks to June 15, 2004.   FB1 Mexico moves forward by one (1) week to March 22, 1993 and FB1 Philippines moves forward by a little over two (2) months to January 8, 1997.
• FB2A moves forward by five (5) weeks to January 8, 2009 for ROW, China, India, and Philippines.  FB2A Mexico moves forward by three (3) weeks to October 15, 2008.
• FB2B ROW, China and India move forward by two (2) weeks to July 15, 2003.  FB2B Mexico moves forward by three (3) weeks to November 22, 1992.  FB2B Philippines moves forward by five (5) weeks to May 1, 2001.

VISA AVAILABILITY IN THE COMING MONTHS

 

FB Categories

Worldwide dates:

F1: three to six weeks
F2A:three to six weeks
F2B:one to two weeks
F3: one to two weeks
F4: up to one month

Please be advised that the above date ranges are only estimates for the next few months, and are subject to fluctuations in demand.

EB Categories

Employment First: Current

Employment Second:

Worldwide: Current
China and India: The current cut-off date is approaching the most favorable date previously reached for applicants from China and India. The rapid forward movement is intended to generate demand based on new filings for adjustment of status at U.S. Citizenship and Immigration Services offices, which currently accounts for over 85% of all Employment-based number use. Once the level of demand increases sufficiently, it may be necessary to slow or stop the cut-off movement, and a retrogression of the cut-offs at some point during the year is a distinct possibility.

Mexico: Current
Philippines: Current

Employment Third:

Worldwide: up to one month
China: one to three weeks
India: up to two weeks
Mexico: up to one month
Philippines: up to one month

Employment Fourth: Current
Employment Fifth: Current

Please be advised that the above date ranges are only estimates for the next few months, and are subject to fluctuations in demand. Those categories with a “Current” projection will remain so for the foreseeable future.

EB2-India & China Movement 

It is very apparent from the statement in Visa Bulletin that this unexpected movement for EB2-IC category is to allow intake of new demand in order to keep cases already pre-adjudicated and documentarily qualified for next spillover season in FY 2012. CP demand for this category is minimal (around 2-5%) and majority of approval usually comes  from  those approved at USCIS. Current movement of 3 months would make atleast 6164 already pending applicants current for EB2-IC category, and this at the same time will bring in lot of applications from those who missed their filing during July 2007 fiasco (PWMBs). Estimated PWMBs to apply after October 2011 could be anywhere from 3500-4000 (including dependents).

Visa Bulletin mentions "Once the level of demand increases sufficiently, it may be necessary to slow or stop the cut-off movement, and a retrogression of the cut-offs at some point during the year". We expect dates to progress or stand still atleast for Q1 FY 2012 before it could retrogress in Q2 FY 2012 if needed. Mr. Oppenheim has followed similar steps last year for Family Based category before he retrogressed that category in January 2011.

 

We understand that this whole movement is to gauge the demand and to keep cases ready for approval, but what's ambiguous to everyone is how USCIS/DOS is expecting to approve these many cases that are made current. In addition to those now ready to be approved, we have PWMBs who have filed in May-August 2011, that are expected to become documentarily qualified in Q1 FY 2012. PWMBs who will file on and after October 2011 are not expected to become documentarily qualified until Q2 FY 2012.

Million dollar question is how do we expect visa numbers to become available to approve these cases? EB2- India and China only have 2803 per country limit. In addition, there are restrictions on number of visas that can be used each quarter from the annual limit. Only way we see these cases to get approved is through quarterly spillover.  Below we have done quick calculations to estimate EB1 and EB2-ROW demand that could become documentarily qualified in Q4 FY 2011 or early Q1 FY 2012. If similar trend will continues, we expect similar demand to come in each month for Q1 FY 2012 even after few approvals in Q4 FY 2011. 

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From Q3 PERM approvals, we can also estimate what EB2-ROW demand will be. Around 3189 EB2-ROW PERMs were approved in Q3 FY 2011, that are expected to become documentarily qualified on I-140 approval during Q4 FY 2011 and Q1 FY 2012.

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Looking at above table, we can expect anything around 4425 as quarterly spillover which in addition of 1400 EB2-IC quota can allow atleast 5825 approvals. Based on this it is very unlikely that all those who became current in October 2011 visa bulletin can expect approvals in October. Approvals will come slowly but please do not be surprised if few of your SR request would come back with tag "waiting for visa numbers". It is difficult to guess how USCIS will handle approvals but it is very likely that those becoming documentarily qualified through June-July filings may see approvals before those who became current in October VB. This way when DOS will ever retrogress in Q2 FY2012, DOS will not have to retrogress dates by lot . This would help them keep their books look clean. Use of available visa numbers will be at USCIS/DOS discretion and policy.Time will tell. In past some of the October VB approvals also came from unused visa numbers from last fiscal year.

Finally, what would be enough demand for Mr Oppenheim to consider retrogression of EB2-IC? This totally depend upon DOS. Best guess would be anywhere from November 2007-March 2008 (18000-30000 new demand). We still expect PD November 2007 to receive GC for sure in FY 2012. We believe it will take long time for all new PWMBs and post July 2007 filings  to become documentarily qualified and get counted towards monthly demand data. As per current visa bulletin, it seems this movement will continue for some time, atleast until January-February 2012 before we can see retrogression. Again, with DOS all is at will

H1B FY 2012 Prediction and CAP Count - 18 May 2011

As per recent release by USCIS, regular cap has utilized till date 11,200 visas and Masters quota has utilized 7,900 visas as of 13th May 2011. It is interesting to see that H1B visa under Master Cap has utilized more than 35% of the quota. As of now number of petitions increased from last week is 1,600. Based on past months trend, regular cap can reach by 27th January 2012 and Masters Cap by 30 September 2011. Please see our extrapolated Prediction Graph below.

The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers.

H1B FY 2012 CAP Count

Predicted Graph for CAP Count based on current trend

Click Image to Enlarge

H1B FY 2010 Cap Count - September 25, 2009 - 46,700

As of September 25, 2009, approximately 46,700 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.

H1B FY 2010 Cap Count - September 18, 2009 - 46,000

As of September 18, 2009, approximately 46,000 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.

H1B FY 2010 Cap Count - August 28, 2009 - 45,100

As of August 28, 2009, approximately 45,100 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.

H1B FY 2010 Cap Count - July 3, 2009 : 45,000

As of July 3, 2009, approximately 45,000 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.

H1B FY 2010 Cap Count : June 29, 2009

As of June 26, 2009, approximately 44,800 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.

H1B FY 2010 : Applicants are receiving I-797 approval valid for less than 3 years

There are few reports that applicants who applied for H1B FY 2010 are receiving I-797 Approval with visa validity less than 3 years. This is especially true for the cases filed by staffing and consulting companies.

This is particularly seen with cases, if an applicant has received a request for evidence (RFE) requesting a client letter and project details. Successively, if petitioner fails to submit a project detail stating that beneficiary's services will be needed for next 3 years, individual is more prone to get approval with visa valid for number of years as stated in the clients letter.

In order to avoid such cases, please make sure that your client letter states that services is required for next 3 years. Even if an individual receives an approval with visa valid for less than 3 years, he can extend his visa for the period of next project in the same way as done with regular H1B extension. But this will add to bearing cost of H1B visa for an employer.

H1B FY 2010 Cap Count : June 19, 2009

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.

H1B FY 2010 Cap Count : June 12, 2009

As of June 12, 2009, approximately 44,400 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.

H1B FY 2010 Cap Count, June 5, 2009 : Visa Numbers Rollsback - 44,400

As of June 5, 2009, approximately 44,400 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.

This is 1,400 number less than what USCIS announced on May 29, 2009. USCIS has deducted erroneous filed cases from the total count. This is first time that we have ever seen rollback in H1B Visa Cap number from USCIS. Very encouraging.

H1B FY 2010 Cap Count Update: May 29, 2009

As of May 29, 2009, approximately 45,800 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.

H1B FY 2010 Cap Count Update : May 26, 2009

As of May 22, 2009, approximately 45,700 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.

H1B FY 2010 : Case Status Not Available Online

Few Applicants are reporting that even with the valid USCIS Receipt number for H1B FY 2010 case, they are not able to view the status online on USCIS website. Individual is receiving an error "Your case cannot be found at this time in Case Status Online. Please check your receipt number and try again. If you need further assistance please call the National Customer Service Center at 1.800.375.5283"

USCIS do try to keep up the records current with the case status, but there are times that one would not see any updates till few days. It could take as long as 15 days to see updates on the system. I know of a person who received an approval for H1B FY2010 last week, but his case status still shows pending on USCIS website. Some times error could also be due to regular maintenance scheduled by USCIS.

Wait for few days to see if the case is updated. If not then call National Customer Service Center at 1-800-375-5283. Customer Representative should be able to help you with your case. If the petition has been pending for more than 6 weeks, ask your attorney/employer to send a letter with a copy of the receipt notice enclosed requesting a case status.

H1B FY 2010 Cap Update: May 18, 2009

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced information on the number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 45,500 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.
USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can be found on the USCIS Web site at www.uscis.gov/h-1b_count.

H1B FY 2010 Cap still Open : 4th May 2009

U.S. Citizenship and Immigration Services (USCIS) today announced an updated number of filings for H-1B petitions for the fiscal year 2010 program. USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap and received approximately 20,000 petitions for aliens with advanced degrees. USCIS also announced that they will continue accepting applications for advanced degree.

Isn't this amazing? It may be true that USCIS hasn't received enough applications since 27th April to cross 45, 000 number mark, but it is difficult to predict real M.O. at USCIS. Is USCIS screening every H1-B application received each week, and rejecting those which do not meet the criterion as skilled worker or those which have been filed improperly? Thus only counting clean cases towards the cap. Or there are enough skilled workers available in US at this time, that American companies are not hiring individuals who would need H1-B worker visa for FY 2010? Looking at unemployment rate, latter is most likely.

Anyway in each case, H1B visa numbers will be available for longtime. Some predicts it to last till September of 2009.

Reminder: Traveling with Pending H1B Application

Please avoid traveling out of US if you have recently filed H1B application for FY 2010 and currently waiting for approval. If an applicant is currently in US and has filed H1B FY 2010 for 'change of status', traveling outside US would void one's application.

This is also true for any application filed with USCIS for 'change of status'. In case of emergency, if you have to travel outside country, please ask your lawyer to file an I-907 for premium processing. Request for premium processing can be filed during H1B application or any time after I-797 receipt is received. If for some reason your case is not validated within 15 days, you can even request to expedite the case as a last resort.

USCIS Expedite Criteria

All expedite requests are reviewed on a case-by-case basis, and are granted at the discretion of the Director. The criteria are as follows:

• Severe financial loss to company or individual
• Extreme emergent situation
• Humanitarian situation
• Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
• Department of Defense of National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
• USCIS error
• Compelling interest of USCIS

If your case is at a local office at the time you need to make your emergency request, please go to the local office in person to make your request. Please be sure to take all supporting documentation with you.

If your case is at one of our Service Centers or the National Benefits Center, please call customer service at 1-800-375-5283 to receive further instructions on where and how to send your request.

H1B FY 2010 Cap Count : 27th April 2009

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.USCIS has received approximately 45,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap.

The agency continues to accept petitions subject to the general cap. Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees;however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.

For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition. USCIS will provide regular updates on the processing of FY2010 H-1B petitions. The updates can befound on the USCIS’ Web site at www.uscis.gov/h-1b_count

H1B FY 2010: Non PP Advanced Degree cases are receiving Approvals

Cases exempted under advanced degree and filed as regular processing have started receiving approvals. So this means that the ball has started rolling for regular cases. Good luck to all the applicants.

H1B FY 2010 : Few Applicants are Receiving RFE

Many H1B applicants for fiscal year 2010 are receiving request for evidence (RFE). Most of the reported RFEs are regarding the use of old I-129 form (Petition for Non-Immigrant Worker). Recently released form has an additional section to check “Has petitioner received TARP funding”. Senate recently passed a new bill enforcing tougher regulations on TARP funded companies, thus making it difficult to hire H1B workers.

Many lawyers, in order to beat the rush during the first week of April neglected the release of new I-129 form. USCIS is now sending RFEs to such petitioners requesting them to provide information if company is TARP funded. But thats not something one should worry about as providing information for such RFEs is straight forward.

H1B aspirants for FY 2010, who are planning to apply in future should make sure that their lawyer use recent I-129 form. Though replying back to such RFEs is easy, but this will definitely chew up good amount of lead-time, making wait longer for an approval.

Other RFEs reported are those received by few consulting and staffing companies.

1) Employment agreement between Petitioner and Beneficiary;
2) Service Agreement between Petitioner and end-Client;
3) Statement of Work/Purchase Order for Beneficiary indicating his services are required for the next 3 years;
4) Petitioners' 2008 Federal Income Tax returns

Looking at above RFEs, it seems that many consulting and staffing companies would have tough time getting approvals for their beneficiaries. Such petitioners would need SOW/PO from client stating that their service is required for entire tenure of H1B visa. In addition, if there is an applicant who is not on project, it may not be possible for him to get documents associated to RFE number 2.

It's bizarre on USCIS/DOL part to expect client letters, as there may be no client who can foretell the need for next 3 years. Most of these projects are on need-basis and can be as short as 3-5 months. As long as petitioner is paying his employee regularly on H1B visa, is financially sound and not abusing the system, beneficiary should be eligible to receive H1B visa.

H1B applicants for fiscal year 2010, who had applied through consulting and staffing companies should start working on above documents as gathering them would take some time. The time frame given by USCIS is not that long to respond, hence its better to be organized with all your documents.