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 2012 CAP Count - 05 May 2011

As per recent release by USCIS, regular cap has utilized till date 10,200 visas and Masters quota has utilized 7,300 visas as of 05th My 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 1,700.

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 - 29 April 2011

As per recent release by USCIS, regular cap has utilized till date 9,200 visas and Masters quota has utilized 6,600 visas as of 29th April 2011. It is interesting to see that H1B visa under Master Cap has utilized more than 25% of the quota. We should remember that TARP funded companies are allowed to file for H1-B this year will little less restrictions. This will affect how early the cap will reach this year. As of now number of petitions increased from last week is 700.

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 - As of 22 April 2011

As per recent release by USCIS, regular cap has utilized till date 8,000 visas and Masters quota has utilized 5,900 visas as of 22th April 2011. It is interesting to see that H1B visa under Master Cap has utilized its 25% of the quota. We should remember that TARP funded companies are allowed to file for H1-B this year will little less restrictions. This will affect how early the cap will reach this year. As of now number of petitions increased from last week is 1,800 which is substantial increase in number.

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 - 15th April 2011

As per recent release by USCIS, regular cap has utilized till date 7,100 visas and Masters quota has utilized 5,100 visas as of 15th April 2011. It is interesting to see that H1B visa under Master Cap has utilized its 25% of the quota. We should remember that TARP funded companies are allowed to file for H1-B this year will little less restrictions. This will affect how early the cap will reach this year. As of now number of petitions increased from last week is 1,800 which is substantial increase in number.

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 - 7th April 2011

As per recent release by USCIS, regular cap has utilized till date 5,900 visas and under Masters quota has utilized 4,500 visas as of 7th April 2011. It is interesting to see that H1B visa under Master Cap has utilized its 25% of the quota. We should remember that TARP funded companies are allowed to file for H1-B this year will little less restrictions. This will affect how early the cap will reach this year.

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.

FAQ on OPT and F1 Status for Students under H1B Cap-Gap

Introduction

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011 under the Fiscal Year (FY) 2012 H-1B cap.

Questions & Answers

Q1. What is “Cap-Gap”?
A1. Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period. This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students.

Q2. How does “Cap-Gap” Occur?
A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1. Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

Q3. Which petitions and beneficiaries qualify for a cap-gap extension?
A3. H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension.

Note: Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for cap-gap extension.
.
Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1, while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status?
A4. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1.

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?
A5. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.

For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation. The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period. Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval. In both of these instances, the student would be required to leave the United States immediately.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status?
A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status. The student will need to apply for an H-1B visa at a consular post abroad prior to returning. As the H-1B petition is for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf? It appears that F-1 status would be extended, but would OPT also be extended?
A7. That is correct. F-1 students who have entered the 60-day grace period are not employment-authorized. Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended).

Q8. Do the limits on unemployment time apply to students with a cap-gap extension?
A8: Yes. The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension?
A9. F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of such authorization. F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period?
A10. Yes. However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1 petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date. However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date. What should the student do to correct this?
A11. The student should contact their DSO. The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk.

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?
A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

• The student finds employment appropriate to his or her OPT
• The period of OPT is unexpired; and
• The DSO has requested a data fix in SEVIS

Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?
A13. Yes, but only if USCIS receives the withdrawal request from the petitioner before the H-1B change of status effective date. Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to file a Form I-539 to request reinstatement and wait until the reinstatement request is approved, before resuming employment.

Q14. Can the student work past October 1 on their OPT (their EAD card will still show the original end date) if the request to change the end date back is pending?
A14. If the H-1B revocation occurs before October 1, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after October 1, the student will need to apply for reinstatement and wait until the reinstatement request is approved before resuming employment.

Q15. Are students in valid F-1 status while the request to change the OPT end date is pending?
A15. If the H-1B revocation occurs before the H-1B change of status effective date, the student is still deemed to be in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States.

Last updated:04/01/2011

Source - USCIS

H-1B FY 2012 Cap Season Starts Tomorrow

The H-1B Program

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

For more information about the H-1B program, see the link to the left under temporary workers for H-1B Specialty Occupations and Fashion Models.

How USCIS Determines if an H-1B Petition is Subject to the FY 2012 Cap

We use the information provided in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (Form I-129, pages 17 through 19) to determine whether a petition is subject to the 65,000 H-1B numerical limitation (the “cap”). Some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher.

FY 2012 H-1B Cap Count

Cap Type	Cap Amount	Cap Eligible Petitions	Date of Last Count
H-1B Regular Cap	65,000
H-1B Master’s Exemption	20,000

Cap Eligible Petitions

This is the number of petitions that USCIS has accepted for this particular type of cap. It includes cases that have been approved or are still pending. It does not include petitions that have been denied.

Cap Amounts

The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas are 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.

When to File an FY 2012 H-1B Cap-Subject Petition

We will begin accepting H-1B petitions that are subject to the FY 2012 cap on April 1, 2011. You may file an H-1B petition no more than 6-months in advance of the requested start date.

• Petitions seeking an FY 2012 H-1B cap number with an Oct. 1, 2011 start date can be filed no sooner than April 1, 2011.

Note: If you request a start date for a FY 2012 cap-subject H-1B petition that is prior to Oct. 1, 2011 or submit a cap-subject petition prior to April 1, 2011, your petition will be rejected.

How to Ensure USCIS Considers Your H-1B Cap-Subject Petition Properly Filed

Please comply with the following to ensure that your petition is properly filed:

• Complete all sections of the Form I-129 petition, including the H Classification Supplement to Form I-129 (pages 11 and 12 of Form I-129) and the H-1B Data Collection and Filing Fee Exemption Supplement (pages 17 through 19). We accept Form I-129 with a revision date of November 23, 2010, or later.
  • Original signatures, preferably in blue ink, are required on each form.
• Include a signed check or money order with the correct fee amount.
• Ensure that all required documentation and evidence is submitted with the petition at the time of filing to ensure timely processing.

Note: It is your responsibility to ensure that Form I-129 is completed accurately. Failure to complete Form I-129 with the correct information and provide the required fees or documentation may result in the rejection or denial of the H-1B petition.

Additionally, be sure to file the petition at the correct USCIS Service Center. We will reject all H-1B petitions filed at the wrong location. See section below on “Where to Mail Your H-1B Cap-Subject Petition.”

Additional Documents Required With Your Petition

Labor Condition Application (LCA)

You must submit a certified Department of Labor (DOL) LCA (Form ETA 9035) at the time of filing your petition. A copy of the LCA is acceptable.

Note: USCIS encourages petitioners to keep DOL LCA processing times in mind when preparing the H-1B petition and plan accordingly. If the LCA certified by DOL is for multiple positions, you must provide the name and USCIS case receipt number of any alien who has previously utilized the LCA.

Petitioners should ensure that they have signed the LCA prior to the LCA being submitted with the petition to USCIS.

Please see Department of Labor’s Office of Foreign Labor Certification website for further information on the LCA process.

Evidence of Beneficiary’s Educational Background

You must submit 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 final transcript; or
• 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, please provide substantiating evidence at time of filing.

A Duplicate Copy of the H-1B Petition

You must submit a duplicate copy of your H-1B petition at the time of filing if the beneficiary will be seeking nonimmigrant visa issuance abroad. USCIS will not make a second copy if one is not provided.

You may also choose to submit a duplicate copy of the petition if the beneficiary is requesting a change of status to H-1B or an extension of stay in case the beneficiary later decides to seek visa issuance abroad or the H-1B petition is approved but the beneficiary’s concurrent change of status or extension of stay request is denied.

You may review the Department of State website to make sure that the consulate indicated on Form I-129 is able to process the beneficiary’s nonimmigrant visa application and for any other consulate-specific special instructions.

Multiple or Duplicative Filings

On March 19, 2008, USCIS announced an interim final rule on H-1B visas to prohibit employers from filing multiple or duplicative H-1B visas for the same employee. To ensure fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple or duplicative petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.

Where to Mail Your H-1B Cap-Subject Petition

You must file your petition at the correct Service Center depending on the jurisdiction of the H-1B beneficiary’s work location as specified in the petition. We have established specific mailing addresses for purposes of identification and processing of H-1B cap-subject cases.

To determine which jurisdiction you are in, see the link to the right for H-1B filing locations.

Note: A separate mailing address has been established for certain types of educational or nonprofit organizations which file H-1B petitions on behalf of beneficiaries that are exempt from the H-1B numerical limitations.

Please read the filing instructions very carefully. If you file your petition incorrectly, we will reject the petition. Rejected petitions will not retain a filing date.

Required Fees

There are different fees depending on the type of H-1B petition you are submitting. Please refer to Fee Exemption and/or Determination (pages 17 and 18 of Form I-129) for detailed instructions on fees.

The following fees may be required with a cap-subject petition:

Base filing fee:

• $325

American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee

(see H-1B Data Collection and Filing Fee Exemption Supplement, Part B):

• $750 for employers with 1 to 25 full-time equivalent employees, unless exempt
• $1,500 for employers with 26 or more full-time equivalent employees, unless exempt

Fraud Prevention and Detection fee:

• $500 to be submitted with the initial H-1B petition filed on behalf of each beneficiary by a petitioner (does not apply to Chile/Singapore H-1B1 petitions)

Public Law 111-230

• $2,000 to be submitted by a petitioner which employs 50 or more employees in the United States where more than 50 percent of its employees in the United States are in H-1B or L-1 nonimmigrant status.

Premium Processing fee:

• $1,225 for employers seeking Premium Processing Service

Checks

Make checks payable to the Department of Homeland Security or U.S. Citizenship and Immigration Services, dated within the last 6-months, and include the proper guarantee amount and signature.

Money Orders

Money orders must be properly endorsed.

Non-payable Checks or Other Financial Instruments

USCIS will reject all applications or petitions submitted with the incorrect filing fee. Rejected petitions and petitions in which the check or other financial instrument used to pay the filing fee is returned as non-payable will not retain a filing date. See 8 CFR 103.2(a)(7)(i).

While petitioners are generally provided the opportunity to correct a fee deficiency, pursuant to the regulations, the filing date is not established until and unless the fee deficiency has been corrected. H-1B cap-subject petitions with non-payable fees will be given a new filing date the day the fee deficiency has been corrected, as long as the cap has not been met. If the new filing date is after the cap has been met, the petition will be rejected.

Premium Processing Service

H-1B petitions are eligible for the Premium Processing Service. Petitioners may choose to file a Request for Premium Processing Service (Form I-907) to have their petition processed within 15 calendar days. To request premium processing submit:

• the Form I-907 and
• the filing fee of $1,225 (this fee is in addition to the required base filing and other applicable fees and cannot be waived).

You can file the Form I-907 and corresponding fee:

• at the same time as Form I-129 or
• at any time after you file Form I-129 while it is still pending.

If filed after the Form I-129, be sure to include the receipt number (e.g., EAC 11 123 51234) of the Form I-129 in the pertinent section of Form I-907.

Note: We will only accept the 08/10/09N (or later) edition of Form I-907.

Please see the link to the right for more information concerning the Premium Processing program.

Organizing your H-1B package

Clearly label all H-1B cap cases, preferably in red ink, on the top margin of Form I-129. Use the following codes:

• Regular Cap (65,000 regular cap cases, not including Chile/Singapore cap cases)
• C/S Cap (Chile/Singapore H-1B1s)
• U.S. Master’s (20,000 exemption for beneficiaries with U.S. master’s or higher degrees)

A separate check for each applicable filing fee (Form I-129, Premium Processing, Fraud Fee, ACWIA fee, and Public Law 111-230) is preferred. Applicable fees should be stapled to the bottom right corner of the top document.

Preferred order of documents at time of submission:

• Form I-907 (if filing for Premium Processing Service)
• Form G-28 (if represented by an attorney or accredited representative)
• Form I-129, Petition for a Nonimmigrant Worker
• H Classification Supplement to Form I-129
• H-1B Data Collection and Filing Fee Exemption Supplement
• All supporting documentation to establish eligibility
• Provide a Table of Contents for supporting documentation
  • Tab items as listed in Table of Contents
  • Arrival-Departure Record (Form I-94) if the beneficiary is in the U.S.
  • SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
  • SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
  • Form I-566 if the beneficiary is a current A or G nonimmigrant
  • DOL certified LCA, Form ETA 9035
  • Employer/attorney/representative letter(s); and
  • Other supporting documentation.
• Duplicate copy of the petition, if necessary. Clearly indentify the duplicate copy of the petition as “COPY”, so that it is not mistaken for a duplicate filing.

How to mail multiple petitions together

If multiple petitions will be included in the same courier service or Post Office package, please place individual petitions into separate envelopes within the package. Individual petition envelopes should be marked with the following labels to reference the type of petition:

• Master’s Premium
• Master’s
• Regular Premium
• Regular
• Chile/Singapore

Filing Tips:

Form G-28, Notice of Entry of Appearance as Attorney or Representative

If the petitioner will be represented by an attorney or other accredited representative, a properly executed Form G-28 should be submitted. Each Form G-28 should include the following:

• All sections completed
• The printed name and signature of the representative
• The original signature of the petitioner.

Form I-129, Petition for a Nonimmigrant Worker

• Complete all sections of the form accurately.
• Ensure that the petition is properly signed. Please see the Related Links section for more information on properly signing the petition.
• Provide the petitioner name and address on the USCIS petition form. It is critical that petitioners accurately provide their name and address on the USCIS petition form. This facilitates USCIS in matching information from the petition with information received from the Independent Information Provider (IIP) through the Validation Instrument for Business Enterprises (VIBE). Listing an attorney or representative’s address in the “Petitioner Information” section of the form may result in the issuance of an RFE.
• Ensure the beneficiary’s name is spelled properly and that his/her date of birth is displayed in the proper format (mm/dd/yyyy). Also, country of birth/citizenship and the I-94 number (if applicable) should be reviewed for accuracy.
• If the beneficiary will ultimately be seeking issuance of a visa at a consular office abroad, a copy of the petition and supporting documentation should be included with the filing. For cases where the beneficiary will be seeking a change of status or extension of stay in the United States, a copy is suggested, but not necessary.
• If the beneficiary is seeking an extension or change of status, the petition should include evidence (e.g. Form I-94 or Form I-797 approval notice) to establish that the beneficiary will have maintained a valid nonimmigrant status through the employment start date being requested.
• Include a copy of the beneficiary’s valid passport.

H Classification Supplement to Form I-129 (pages 11 and 12 of Form I-129)

• Please be sure to complete all sections of the form accurately.
• In listing previous periods of stay in H/L classification (question 3), please also include the actual nonimmigrant classification held (e.g. H-1B or L-1).
• Petitioner must sign the form, preferably in blue ink.

H-1B Data Collection and Filing Fee Supplement form (pages 17 through 19 of Form I-129)

• Please be sure to complete all sections of the form accurately.
• Please enclose page 17 through 19 of the Form I-129 (with a revision date of November 23, 2010 or later).
• Be sure to answer appropriately in Part A, question 5 and Part C, question 2 if the beneficiary has earned a master’s degree or higher from a U.S. educational institution.

Form I-907, Request for Premium Processing

• Please be sure to complete all sections of the form accurately with original signatures. Note: We will accept the 08/10/09 edition of Form I-907 (or later)
• The representative may sign in both Parts 3 and 4 of the Form I-907 if there is a valid Form G-28 with the filing. Otherwise, the petitioner’s signature is required. Preferably, the signature(s) should be in blue ink.
• Please include a copy of the Form I-129 receipt notice along with the Form I-907 when Form I-907 is filed after the filing of Form I-129.

Source - www.uscis.gov

H1B FY 2012 - Accepting Petitions April 1, 2011

For all individuals who will be filing their H1B Petitions in FY 2012, USCIS will start accepting application starting April 1, 2011. Please note that cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked. It is important that your case should reach USCIS in timely manner with the correct fees. This is especially important if USCIS would receive enough cap - subjected applications to reach cap on first five working days from April 1, 2011. In this case USCIS would usually held a lottery where application considered for processing in FY 2012 will be randomly selected. Please note that this year TARP funded companies are allowed to file H1B petitions for their employees. They no more have 'H1B Restrictions' that were imposed on them in FY 2009, FY 2010 and FY 2011. Based on this, it is difficult to predict how soon H1B CAP will be reached this year. Last year H1B CAP was not reached until 26th January 2011. The cap (the numerical limit on H-1B petitions) for FY 2012 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher are exempt.

How H1B visa Lottery works?

How does the lottery work?

There is a limit to the number of first-time H1B cases that can be filed each year. These filings start on April 1, 2011 for the FY2012 quota or "cap." The USCIS allow a minimum window of five business days in April each year for the USCIS to receive H1B cap-subject cases. Thus, if the cap limit is reached during any of the first five days, a random lottery selection then will be conducted to determine which cases filed within the five-day timeframe will be eligible for a cap number. The cases then are reviewed and, if approved, generally are counted against the cap.

What happens if the H1B cap is not met within 5 business days?

If the cap is not met during the first five days, then filings will be accepted for additional days, until the cap is met. There will be a lottery, then, of the cases received on the day the cap is met, only. All earlier cases would not be subject to this lottery, and would be eligible for a cap number, if approved.

What happens to the U.S. masters' quota H1B cap filings during random lottery?

Based upon FY 2010 procedures, the lottery actually is conducted in two steps. There are two separate cap allocations. There are 20,000 "advanced degree" cap exemptions, for cases filed for foreign nationals who have completed U.S. masters' degrees or above. This is separate from the regular cap of 65,000 (minus a set aside for certain treaty cases). The USCIS will first determine if advanced-degree cap has been met in the first five days. If so, a lottery will be conducted for those cases. Any cases not selected would be eligible then for consideration and subject to the H1B random lottery under the regular cap. If the regular cap is reached in the first five days, then a lottery would be conducted consisting of all the regular cases filed in that timeframe, as well as any advanced-degree cases that are not selected in the advanced-degree lottery. (If only the regular cap is met in the first five days, then the lottery of those cases would not include advanced degree cases.)
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When can we expect to find out if the quota is met?

The USCIS has made improvements to its counting and lottery system, so that announcements about the number of filings normally are issued fairly quickly. They provide information on the number of cases received within about a week, and also advised of the date set for the lottery.
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Will there be a lottery this year?

There is no likelihood that lottery will be held during first five-days of opening of FY 2012 H1B season. We do expect CAP to reach early this year because company who received TARP funds are eligible to file H1B petitions for their employees with less 'H1B Restrictions'

What were the 'H1B Restrictions' for TARP funded companies?

Covered companies are not allowed to “hire” an H-1B worker unless the company has complied with additional LCA attestations which are generally imposed on H-1B dependent employers. These additional attestations are:

(1) that the employer has, prior to filing the H-1B petition, taken good-faith steps to recruit U.S. workers for the position for which the H-1B worker is sought, offering a wage that is at least as high as that required under law to be offered to the H-1B worker. The employer must also attest that, in connection with this recruitment, it has offered the job to any U.S. worker who applies and is equally or better qualified for the position; and

(2) that the employer has not laid off, and will not lay off, any U.S. worker in a job that is essentially equivalent to the H-1B position in the area of intended employment of the H-1B worker within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing.

Other topics on H1B that first time filers should read.

• H1B 'Cap Exempt' Visa as an Option?

USCIS to Start Accepting H-1B Petitions for FY 2012 on April 1, 2011 March 18, 2011 WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) announced today it will start accepting H-1B petitions subject to the fiscal year (FY) 2012 cap on April 1, 2011. Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked. U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers, and computer programmers, among others. The cap (the numerical limit on H-1B petitions) for FY 2012 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher are exempt. USCIS will monitor the number of H-1B petitions received and will notify the public of the date when the numerical limit of the H-1B cap has been met. This date is known as the final receipt date. If USCIS receives more petitions than it can accept, it may on the final receipt date randomly select the number of petitions that will be considered for final inclusion within the cap. USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap. In addition to petitions filed on behalf of people with U.S. master’s degrees or higher, certain other petitions are exempt from the congressionally mandated cap. Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at: Institutions of higher education or related or affiliated nonprofit entities; Nonprofit research organizations; or Governmental research organizations. Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until Dec. 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories for beneficiaries who will start work during FY 2011 or 2012. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap do not count towards the H-1B cap. USCIS will continue to 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. H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions, to avoid delays in processing and possible requests for evidence. USCIS has posted on its website detailed information, including a processing worksheet, to assist in the completion and submission of a FY2012 H-1B petition. For more information on the H-1B nonimmigrant visa program and current Form I-129 processing times, visit www.uscis.gov or call the National Customer Service Center at 1-800-375-5283. Last updated:03/18/2011

H-1B Cap Exemptions Based on Relation or Affiliation

Update as of March 18, 2011

WASHINGTON— U.S. Citizenship and Immigration Services (USCIS) announced today, in response to recent stakeholder feedback, that it is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.

Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap. However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education.

Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption. Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.

USCIS emphasizes that these measures will only remain in place on an interim basis. USCIS will engage the public on any forthcoming guidance.

The H-1B is a nonimmigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. Unless determined to be exempt, H-1B petitions are subject to either the 65,000 statutory cap or the 20,000 statutory visa cap exemption. By statute, H-1B visas are subject to an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions for these visas filed on behalf of individuals with U.S. master’s degrees or higher are exempt from this cap.

Evidence of previous determinations of cap exemption, as discussed in this Update, will be considered on a case by case basis only when submitted with a Form I-129 petition for H-1B status requesting exemption from the numerical cap, or in response to a Request for Evidence or Notice of Intent to Deny for H-1B petitions currently pending with USCIS claiming exemption from the cap. Petitioners are accordingly advised not to send separate correspondence containing their cap-exemption evidence to USCIS on this issue.

Last updated:03/18/2011

So to summarize USCIS announces that it is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education. Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education. Thus exempting them from statutory cap limit.


Source : www.uscis.gov

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H1B and H2B FY 2012 - A Guide to first-time visa holders

Process for H2B visa

Who is eligible?

The H2B visa is available to employers of foreign workers not working in the agricultural field. This visa is only available for work that is temporary in nature. For H2B purposes, that means:

• Recurring seasonal need;
• Intermittent need;
• Peak-load need; and
• One time occurrence.

The employer must also prove that there are no unemployed US workers willing or able to do the work. This is established through the state's employment agency using a labor certification process. This process requires a recruitment campaign, including advertising in a local newspaper for available temporary workers.

Visa validity

The duration of the visa is limited to the employer's need for the temporary workers. The maximum authorized period is one year. However, the employer may extend the duration of the visa up to three years -- but with a very close watch from the immigration authorities.

Filing the I-129 Petition

In order to be considered as a nonimmigrant under the above classifications, the prospective employer must file Form I-129, Petition for Nonimmigrant Worker, with the United States Bureau of Citizenship and Immigration Services (USCIS). Once approved, the employer is sent a notice of approval, Form I-797.

Applying for the Visa

If the prospective worker is outside of the US, he must then apply for a visa with the US consulate.

The H-2B visa application includes:

• DS-156, Application for Nonimmigrant Visa
• DS-157 if male between the ages of 16 and 45)

  The necessary filing fees

• Copy of Notice of Approval of H-2B Petition
• Passport
• One passport-style photo
• Evidence of ties to the home country (family, property, current occupation, etc.) Like with any other nonimmigrant visa, the Consulate needs to see that each applicant has ties to the country so that he or she will return home after their work period ends.

If the prospective worker is already in the US and is changing from one nonimmigrant status to another, a visa is not required. However, if the worker leaves the US and wants to re-enter, s/he may need a visa.

Entry into the US

Applicants should be aware that a visa does not guarantee entry into the United States. The officer at the port of entry has authority to deny admission, even if the applicant has a visa. Also, the officer at the port of entry, not the consular officer, determines the period for which the bearer of a temporary work visa is authorized to remain in the United States. At the port of entry, officials issue Form I-94, Record of Arrival-Departure, which notes the length of stay permitted. The decision to grant or deny a request for extension of stay, however, is made solely by the USCIS.

When to file

Petitions should be filed no more than six months before the proposed employment will begin. However, they should be submitted at least 45 days before the employment will begin, because the petition processing and visa issuance may not be completed before work is to begin.

Bringing family members

Spouses of H-2B visa holder or an unmarried child under 21 years of age of H-2B visa holder are issued an H-4 visa. They may remain in the US as long as the authorized stay of the H-2Avisa holder. H-4 visa holders are not permitted to work in the US.

Petitioning for several workers

It is possible, in some cases, for employers to file blanket petitions (that is, one petition for several individual employees).

Process for H1B Visa

The US H1B visa is a non-immigrant visa, which allows a US company to employ a foreign individual for up to six years. As applying for a non-immigration visa is generally quicker than applying for a US Green Card, staff required on long-term assignment in the US are often initially brought in using a non-immigrant visa such as the H1B visa.

Individuals can not apply for an H1B visa to allow them to work in the US. The employer must petition for entry of the employee. H1B visas are subject to annual numerical limits.

US employers may begin applying for the H-1B visa six months before the actual start date of the visa. Since the beginning of the FY 2009 is October 1, 2008, employers can apply as soon as April 1, 2008 for the FY 2009 cap, but the beneficiary cannot start work until October 1st.

The H1B visa is designed to be used for staff in "speciality occupations", that is those occupations which require a high degree of specialized knowledge. Generally at least the equivalent of a job-relevant 4-year US Bachelor's degree is required (this requirement can usually be met by having a 3-year degree and 3 years' relevant post-graduate experience). However, professionals such as lawyers, doctors, accountants and others must be licensed to practice in the state of intended employment - e.g. a lawyer must generally have passed the relevant state bar exam.

Non-graduates may be employed on an H1B visa where they can claim to be 'graduate equivalent' by virtue of twelve or more years' experience in the occupation.

Positions that are not "speciality occupations", or for which the candidate lacks the qualifications/experience for an H1B visa, may be filled using an H-2B visa.

New H1B legislation requires certain employers, called 'H1B dependent employers' to advertise positions in the USA before petitioning to employ H1B workers for those positions. H1B dependent employers are defined as those having more than 15% of their employees in H1B status (for firms with over 50 employees - small firms are allowed a higher percentage of H1B employees before becoming 'dependent'). In addition all new H1B petitions and 1^st extensions of H1B's now require a fee (in addition to the usual filing fees) of US$1,000 to be paid, which will be used to fund a training programme for resident US workers.

The initial visa may be granted for up to three years. It may then be extended, in the first instance for up to two further years, and eventually for one further year, to a maximum of six years. Those wishing to remain in the US for more than six years may, while still in the US on an H1B visa, apply for permanent residence (the "green card"): if such employees do not gain permanent residence, when the six year period runs out, they must live outside the US for at least one year before an application is made for them to enter on an H or an L visa.

Once a company has brought an employee to the US on an H1B visa, should the company dismiss that employee before the expiry of the visa, the company is liable for any reasonable costs that the employee incurs in moving him/herself, his/her effects, back to his/her last foreign residence. This provision covers only dismissal, it is not relevant when an employee chooses to resign.

H-1B frequently asked questions

Q. Can the H1B employee work at different sites?

A. Yes, but a separate Labor Condition Application must be made for each site at which the employee will be working (though there is a limited exception for short-term assignments at different sites within the same Metropolitan Statistical Area).

Q. Can employment/contracting agencies sponsor H1B visas?

A. Yes, but remember the sponsor has to pay the prevailing wage whether or not they can find employment for the alien.

Q. How many H1B visas are available each year?

A. 65,000 for the fiscal year starting October 1, 2005. However, there are 20,000 additional H-1B visas available as an exemption from the 65,000 quota. These are reserved for people who have graduated from a U.S. university with at least a Masters degree and have other skills and experience in demand.

Research institutions and universities may also offer positions and petition for H-1B visas beyond all caps. People that may qualify for such positions have very unusual skills, education and experience, so it is rare that petitions are made beyond the official caps.

Q. What happens when the annual quota is reached?

A. USCIS announces a cutoff date once the annual quota is reached. Petitions filed before the cutoff date, but after the quota has been used up, will be held for processing the following October. Petitions submitted after the cutoff date will be returned to the petitioner without consideration.

Q. What are the government fees involved in obtaining an H1B visa, and who pays them?

A. The USCIS filing fee is currently US$ 190, which must be paid by the sponsoring employer. In addition to the filing fee, the USCIS imposes a Fraud Prevention and Detection fee of US$ 500. For H1B applications, the USCIS also imposes a American Competitiveness and Workforce Improvement Act (ACWIA) fee of US$ 1,500 if the petitioner employs more than 25 full-time equivalent employees, including any affiliate or subsidiary, or US$ 750 if the petitioner employs 25 or less full-time equivalent employees. Finally, consular visa processing usually involves a charge of approximately $105 in local currency. Prevailing Wage Determinations and Labor Condition Applications are free of government charges.

Q. How long does the process take?

A. On average 3-6 months in total, depending on the USCIS Regional Service Center processing the application - unless using Premium Procession.

Q. Is it possible to speed up the process.

A. Yes. USCIS has instituted a program called Premium Processing. If the INS is paid an extra $1,000 on a separate check, USCIS guarantees it will adjudicate the petition in 15 days or notify the petitioner if more evidence is needed.

Q. Can the alien come to the USA on a visitor visa or visa-waiver while the H1B petition is being processed?

A. This is possible but not advisable, and under no accounts should the alien risk putting in jeopardy the issue of an H1B visa by engaging in anything that might be construed as work, as this may lead to the alien being accused of visa-fraud either on entry to the US with a visitor visa/visa-waiver or when applying for an H1B visa at the US consulate in their own country.

Q. If I sponsor an alien worker for an H1B, do I have to employ him/her for the full period of the visa's validity?

A. No, but if you dismiss the worker before the H1B visa expires you are responsible for his/her reasonable costs of return transportation to their home country. You will probably not be responsible for such costs for his or her dependants, however.

Q. Can the H1B alien's spouse/children work or study in the US.

A. Dependents of the H1B alien are granted H-4 visas, which are not employment-authorized. Thus they cannot work unless their prospective employer unless they can obtain a work visa in their own right. H-4 dependents may, however, undertake study in the USA.

Source - http://hubpages.com/hub/H2B-visa

Temporary Government Shutdown and Its Affect on Visa Processing

Here is a nice article that is shared by Murthy.com. Please read through it and be advised that visa processing times could prolong than usual during government shutdown. If you are planning to travel abroad to get your visas stamped, please be cautious and informed about the shutdown. There are good chances that some consulates may be closed during this period of time. Please plan your travel accordingly. Kudos to Murthy Law Firm to keep immigrant and non-immigrant community updated on this issue.

Temporary Government Shutdown: How Immigration Might be Affected

Update: Due to an agreement on government funding for a two-week period, there will not be an immediate government shutdown. The Continuing Resolution provides funding until March 18, 2011. A shutdown remains possible in the future if a longer term agreement is not reached.

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If the U.S. Congress cannot reach an agreement on a funding extension by March 4, 2011, there could be what is commonly referred to as a government "shutdown." In such a situation, government services are not completely shut down but they are limited, and some functions cease until the funding issues are resolved. This explanation of what a temporary shutdown would entail from an immigration point of view is for the benefit of MurthyDotCom and MurthyBulletin readers.

Background: Disagreement Over Funding Levels

Generally, the U.S. Federal Government sets a budget annually and funds operations through passage of appropriations legislation. However, since they have failed to reach an agreement on budget issues for fiscal year (FY) 2011, funding is currently approved and available only under a temporary measure, which is set to expire on March 4, 2011.

Congress must agree to a continuation of temporary funding to maintain the status quo. On February 19, 2011, the Republican-controlled U.S. House of Representatives approved a budget containing $60 billion in cuts. This is not acceptable to President Obama or many Democrats in the Senate. If no compromise is reached by March 4, 2011, the United States will face the first government shutdown since 1995.

History of Government Shutdowns

As stated, the last time the United States faced a government shutdown was in 1995. The 1995 shutdown was the longest event of its type in U.S. history, with a duration of twenty-one days (from December 16, 1995 to January 6, 1996). This had been preceded by a five-day shutdown in November 1995. There were nine earlier shutdowns of three days or less between 1981 and 1995. However, between 1977 and 1980, there were six government shutdowns lasting from eight to seventeen days. Thus, a shutdown could be quite brief, but might extend for several weeks.

Not a Complete Shutdown: Services that Must Remain Open

Even in a shutdown the U.S. government does not simply cease all operations. Under existing guidelines, the U.S. government will continue activities that provide for national security and protect life and property. The government will continue to issue benefit payments and perform certain contract obligations. These operations include: medical care of inpatient and emergency outpatient care; continuance of air traffic control; continuance of border protection; law enforcement and care of prisoners; emergency disaster assistance, and similar services and operations. Additionally, and particularly relevant to immigration, some services that are self-funded (through payment of user fees) continue to operate.

Impact on USCIS and Other Immigration Applications / Petitions

CBP: Open for Business
The U.S. Customs and Border Protection (CBP) will remain operational, as they deal with national security and protect life and property. Thus, it will still be possible to travel into the United States as a foreign national.

USCIS Benefits Continue
The USCIS is expected to continue to adjudicate benefits applications and petitions. This is possible because these operations are funded by the filing fees that are submitted with the various applications and petitions. Thus, this portion of the immigration process, commonly utilized by MurthyBulletin and MurthyDotCom readers, will continue.

U.S. Department of Labor: Not Operating
Unlike the USCIS, the Department of Labor (DOL) does not charge user fees for its services. It is thus expected that the DOL will cease processing PERM labor certifications, prevailing wage determinations, and other immigration-related benefits. We have received confirmation that DOL investigations, including those related to I-9 and labor condition application (LCA) violations would cease during any shutdown.

U.S. Department of State: No Visa Applications
While the diplomatic and security aspects of the Department of State (DOS) operations would continue, visa applications would likely not be processed in the event of a shutdown. It is anticipated that the consulates will not be open for visa appointments and processing. Thus, depending upon the duration of such an event, individuals could be stranded abroad with no way of obtaining required travel documents. The same is true for the processing of U.S. passports.

Read More at Murthy.Com

Can America keep best, brightest immigrants? - MSNBC Nightly News

America's visa restrictions lead to reverse brain drain

Please see the video. Tom Brokaw addresses the concern that America is losing its best and brightest immigrants because of visa restrictions. From 1995 to 2005, a quarter of start-up technology or engineering companies had at least one immigrant founder. It talks about most of the H1B issues with not much emphasis on Employment-Based Green Cards.

Look around the offices of SnapDeal, an online coupon business, and it's not hard to see all the signs of a thriving venture.

A young staff full of drive and ambition, a tote board on the wall tracking new customers, one about every second.

But SnapDeal isn't in Silicon Valley — it's in New Delhi, India.

Kunal Bahl, 27, and his partner, Rohit Bansal, launched SnapDeal in February 2010. They're already the No. 1 e-commerce retailer in India.

“SnapDeal is a very simple concept,” Bahl said. “Every day there is one attractive deal and people come to the website, buy the deal and go use it at the merchant.”

Bahl's company has created 300 jobs — and counting. But he sometimes wonders "what if …?" What if the country where he got his education, where he helped start a company while still in business school, had let him stay?

“I put my chips in the American basket and said let me try my hand here,” said Bahl, who earned an engineering degree from the University of Pennsylvania and a business degree from its Wharton School.

But Bahl's visa ran out, and he took his skills back to India.

The United States issues only 85,000 of the so-called H1B visas for highly skilled workers each year. And these expire after six years.

There's broad agreement that the current immigration and visa system needs reform — that's going to need to come from Congress.

Still, the State Department does what it can to help encourage entrepreneurship around the world.

Video: 'I didn't have an option' (on this page)

The San Francisco Bay Area — the home of Silicon Valley, Stanford University and the University of California, Berkeley — has always been a magnet for the best and brightest from foreign lands, but now many are wondering, why do U.S. immigration officials make it so hard for them to stay?

“We're strengthening our competitors, we're weakening ourselves,” said Vivek Wadhwa, a visiting professor at Berkeley and research associate with the Labor and Worklife Program at Harvard Law School. He has been warning of a "reverse brain drain" for years.

"There are a lot of very good human beings who are unemployed, who have lost their jobs,” Wadhwa said. “It's easy for them to blame foreigners. What they don't understand is people like me, when I came to this country, I came to study. My first company created 1,000 jobs. My second company created 200 jobs.

Wadhwa's research found that between 1995 and 2005, 25 percent of startups in Silicon Valley had at least one immigrant founder. And those startups created nearly a half-million jobs.

U.S. immigration rules are big roadblocks for the enterprising foreigners.

Martin Kleppmann, German co-founder of San Francisco startup Rapportive, which shows users everything about their contacts from inside their email inboxes, said everyone has stories to share about how painful the visa process has been.

“You're trying to quickly engage with customers — make sure that everything's developing, and at the same time, you've got this huge distraction — worrying whether you're going to get kicked out of the country,” said Kleppmann, who has a bachelor's in computer science from the University of Cambridge and studied music composition at the Royal Scottish Academy of Music and Drama.

Video: Immigration laws blocking economic potential? (on this page)

At a gathering of nearly a dozen young Silicon Valley entrepreneurs recently, more than half said they think they’ll end up back in their home countries rather than staying in the U.S. because of visa issues — and they would take jobs with them when they leave.

Immigration officials often don't even understand the technology business.

Kleppmann drew laughs from the group when he explained an example.

“In our case — we got a beautiful letter from the immigration service asking to prove that we had enough warehouse space to store our software inventory. We don't even have boxes of software, it's all on the Internet."

Sakina Arsiwala of India co-founded San Francisco-based Campfire Labs, a startup that wants to "change the way people think of social interactions in the real world and online."

“Why deal with all this, you know, old school immigration systems, just go where you're wanted, you know?” said Arsiwala, a software engineer who formerly headed YouTube's international business for Google. She studied at the University of Mumbai and San Francisco State University.

Bahl went where he felt welcome. Close to family in a newly vibrant India.

“There is no ‘either or’ relationship between the American dream and the Indian dream, Bahl said. “They can both exist, it's just that the guys who are building the Indian dream right now could have been part of the American dream, too.”

In an interesting twist in Bahl's case, he's looking into launching SnapDeal internationally, including in the U.S., and hiring Americans to help him do it.

Source - http://www.msnbc.msn.com/id/41894670/ns/business-consumer_news/