H1B Transfer Applicants: Be Vigilant

There are some reports that applicants pursuing H1B transfers are getting denials and request for evidence (RFE). It is not clear what led to this surge, but it looks like most of the denials were due to undisciplined petitioners or employers who did not pay their employees regularly, thus not complying with LCA regulations. Despite the cases being genuine, the beneficiaries are prone to denial.

Individuals looking to transfer H1B should make sure that their employer is not blacklisted with USCIS/DOL. One should make sure that the company in past and currently abides by the LCA rules and regulations. Time may seem tough at work and one would like to change job for career enhancement, improved pay or other personal reasons, but please avoid changing companies and filing H1B transfer as long as possible, or at least till economy stabilizes.

If one has no choice but to transfer H1B, please make sure that your prospective employer will file your case in Premium Processing. DO NOT START working for them unless and until I-797 approval is received. If for any reason H1B transfer is denied, one can atleast continue working for the current employer.

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.

F.A.Q on 90–day unemployment rule for students on 12-month OPT

Last year USCIS released 90-day unemployment rule for students on OPT. This rule specifies an aggregate maximum allowed period of unemployment of 90 days for students on 12-month OPT. With economy struggling and no jobs available, it is important that students graduating with 12-month OPT be aware of this rule. To maintain one's status throughout, please see F.A.Q on what types of employment are allowed on 12-month OPT to overcome 90-day unemployment rule.

With less free flowing money in hand, companies would be more than willing to hire individuals with unpaid internships. Try to look for such jobs on career website. This can be a stepping stone for a full-time job. Many hospitals, research organizations and non-profit organizations are always looking for volunteers to join their team. Once they have openings, you could be the first one to be considered for full-time jobs. Many Software Engineers and Architects could also work for a firm as an independent contractors on 1099. Entrepreneurs could start their own business (obviously if they have some funds). In addition, see tips on finding job after graduation.

F.A.Qs

What are the limits on periods of unemployment?

• Students on post-completion OPT may have up to 90 days of unemployment.
• Students who have OPT extended due to the cap gap provisions continue to be subject to the 90-day limitation on unemployment.
• Students who receive a 17-month STEM OPT extension are given an additional 30 days of unemployment for a total of 120 days over their entire post-completion OPT period.

What type of employment is allowed on 12-month OPT?

All OPT employment must be directly related to the student's major field of study and commensurate with the degree level. The following types of paid and unpaid experiences are considered valid OPT activities according to the U.S. Department of Homeland Security and should be reported to the ISSO.

• Paid employment. Students may work part time (at least 20 hours per week when on post-completion OPT) or full-time.

• Multiple employers. Students may work for more than ne employer, but all employment must be related to the student's degree program and for pre-completion OPT cannot exceed the allowed per week cumulative hours.

• Short-term multiple employers (performing artists). Students, such as musicians and other performing artists may work for multiple short term employers (gigs). The student should maintain a list of all gigs, the dates and duration. If requested by DHS, students must be prepared to provide evidence showing a list of all gigs.

• Work for hire. This is also commonly referred to as 1099 independent contractors where an individual performs a service based on a contractual relationship rather than an employment relationship. If requested by DHS, students must be prepared to provide evidence showing the duration of the contract periods and the name and address of the contracting company.

• Self-employed business owner. Students on OPT may start a business and be self-employed. In this situation, the student must work full time. The student must be able to prove that he or she has the proper business licenses and is actively engaged in a business related to the student's degree program.

• Employment through an agency. Students on post-completion OPT must be able to provide evidence showing they worked an average of at least 20 hours per week while employed by the agency.

• Unpaid employment. Students may serve as volunteers, unpaid interns, researchers, community service workers, etc, where this does not violate any labor laws. These students must be able to provide evidence from the organization that the student performed services at least 20 hours per week during the period of post-completion OPT.

Is a student who splits OPT between two degrees at the same level limited to a total of 90 days of unemployment?

• No, the student is not limited to a total of 90 days of unemployment in this case. For each new period of post-completion OPT, the student will have the full 90-day period of unemployment.

What counts as time unemployed?

• Each day during the period when OPT authorization begins and ends that the student does not have qualifying employment counts as a day of unemployment. The only exception is that periods of up to 10 days between the end of one job and the beginning of the next job will not be included in the calculation for time spent unemployed.

How does travel outside the United States impact the period of unemployment?

• If the student whose approved period of OPT has started travels outside of the United States while unemployed, the time spent outside the United States will count as unemployment against the 90/120-day limits.
• If a student travels while employed (either during a period of leave authorized by an employer or as part of their employment), the time spent outside the United States will not count as unemployment.

How do students show employment is directly related to their degree program?

• SEVP recommends that students maintain evidence that they held a particular position, proof of the duration of that position, the job title, contact information for the student’s supervisor or manager, and a description of the work.
• If it is not clear from the job description that the work is related to the student’s degree, SEVP highly recommends that the student obtain a signed letter from the employer’s hiring official, supervisor, or manager stating how the student’s degree is related to the work performed.

Does 60-days grace period exist even after the end of 90 day unemployment period?

• Yes, like any other non-immigrant visa, you will have 60 days grace period to file for change of status

Please post comments for further questions and I will add them to the list.

Please see

H1B FY 2010 Cap Count - 20th April 2009

Regular : 44,000
Advanced: 20,000

H1B FY 2010 : Cap Count Update 13th April 2009

Today, USCIS updated the count on H1B cap for FY 2010. According to their recent update they have received approximately 43,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS mentioned in their latest update that they 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 cap limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

It is been almost 13 days since USCIS last announced that they have received 42,000 regular case applications, and approximately enough applications to reach advanced degree cap exemption. With recent update, it is clear that USCIS received approximately 1000 applications in last few days, which appears too less compared to number of applications USCIS received in similar situation during last few years.

Kudos to investigation led by ICE in collaboration with U.S. Citizenship and Immigration Services' Fraud Detection and National Security Division (FDNS); U.S. Department of Labor's (DOL) Office of Inspector General; U.S. Postal Inspection Service (USPIS); U.S. Department of State; Social Security Administration's Office of the Inspector General, and U.S. Attorney's Office for the Southern District of Iowa, that lead to arrest of 11 individuals under H1B visa fraud. This unquestionably alarmed many companies, that use to file scrupulous H1B applications with no legitimate client requirements. It is needless to say that with DOL imposing heavy penalties on companies that do not pay their employees on bench, we will see fewer of such redundant applications this year.

We should also not forget starting this year, there are stringent laws imposed on companies that received bailout money through Trouble Asset Relief Program (TARP) which confine them from hiring H1Bs. To add to this, struggling economy is playing a huge role in restricting many companies from hiring new skilled workers. Keeping all these aspect in mind, we should see H1B cap for fiscal year 2010 be available for sometime. At last there is some good news for students graduating with advanced degree in May.

H1B FY 2010 Applicants Should Start Expecting Approvals

It has been reported that many applicants, who had applied for H1B Cap FY 2010 have started receiving receipts from USCIS. USCIS would usually go on a case to case basis on issuing receipts, but any application filed under Premium Processing (PP) will be given first preference.

Premium Processing Service provides faster processing of applications. Specifically, USCIS provides 15 calendar day processing to those who choose to use this service or USCIS will refund the Premium Processing fee and the relating case will continue to receive faster processing. Within the 15 day calendar period USCIS will issue an approval notice, or where appropriate, a notice of intent to deny (NOID), a request for evidence (RFE) or open an investigation for fraud or misrepresentation. If the notice requires the submission of additional evidence or of a response to intent to deny, a new 15 calendar day period will begin upon the delivery to USCIS of a complete response to the request for evidence or notice of intent to deny.

There is news that many applicants who have filed under Premium processing (PP) have also started receiving their I-797 approvals. So individuals who have filed under PP should start looking out for the emails from their lawyers. Applicants who have filed petition under regular processing should not worry. It usually takes more than 2-3 weeks before one will get H1B receipts from USCIS. This is far better than last year where each applicant had to wait for 30-40 days even to find if they were selected in the lottery. H1B applicants for FY 2010 should consider themselves lucky that this bad economy was infact a ‘Blessing in Disguise’ for them, with no H1B lottery this year.

Information on Tax Exemptions for OPT Students

Most of the students who are on F-visa or on Optional Practical Training (OPT) having a legitimate job should remember that they are exempted from U.S. Social Security (FICA) and Medicare taxes. These students should inform their employer about this to avoid inappropriate deduction from their pay.

OPT students, who recently applied for H1B FY 2010 should also make sure that their employer must start deducting U.S Social Security and Medicare taxes from 1st October 2009 (start date for their H1B visa). Failure to do so could lead to heavy tax penalties during annual tax return.

Below is some information on certain classes of alien employees are exempt from U.S. social security and Medicare taxes

Resident aliens, in general, have the same liability for Social Security/Medicare Taxes that U.S. Citizens have. (Please see Resident Aliens definition for Tax purposes)

Non-resident aliens, in general, are also liable for Social Security/Medicare Taxes on wages paid to them for services performed by them in the United States, with certain exceptions based on their non-immigrant status. The following classes of non-immigrants and non-resident aliens are exempt from U.S. Social Security and Medicare taxes:

• A-visas: Employees of foreign governments are exempt on salaries paid to them in their official capacities as foreign government employees.
• The exemption does not automatically apply to servants of employees of such foreign governments.
• The exemption does not apply to spouses and children of A non-immigrants who are employed in the United States by anyone other than a foreign government.

• D-visas: Crew members of a ship or aircraft may be exempt if the vessel is a foreign vessel and the employer is a foreign employer, or if the services are performed outside of the United States
• Crew members of an American vessel or aircraft who perform services within the United States ARE subject to Social Security and Medicare taxes.
• Crew members of an American vessel or aircraft who perform services outside the United States ARE subject to Social Security and Medicare taxes if:
• the employee signed on the vessel or aircraft in the United States; or
• the employee signed on the vessel or vessel outside the United States but the vessel or aircraft touches a U.S. port while he is employed thereon.

• F-visas, J-visas, M-visas, Q-visas: Non-resident Alien students, scholars, professors, teachers, trainees, researchers, physicians, au pairs, summer camp workers, and other aliens temporarily present in the United States in F-1,J-1,M-1, or Q-1/Q-2 non-immigrant status are exempt on wages paid to them for services performed within the United States as long as such services are allowed by USCIS for these non-immigrant statuses, and such services are performed to carry out the purposes for which such visas were issued to them.

• Exempt Employment includes:
• On-campus student employment up to 20 hours a week (40 hrs during summer vacations)
• Off-campus student employment allowed by USCIS.
• Practical Training student employment on or off campus.
• Employment as professor, teacher or researcher.
• Employment as a physician, au pair, or summer camp worker

• Limitations on exemption:
• The exemption does not apply to spouses and children in F-2, J-2, M-2, or Q-3 non-immigrant status.
• The exemption does not apply to employment not allowed by USCIS or to employment not closely connected to the purpose for which the visa was issued.
• The exemption does not apply to F-1, J-1, M-1, or Q-1/Q-2 non-immigrants who change to an immigration status which is not exempt or to a special protected status.
• The exemption does not apply to F-1, J-1, M-1, or Q-1/Q-2 non-immigrants who become resident aliens.

• G-visas: Employees of international organizations are exempt on wages paid to them for services performed within the United States by employees of such organizations.
• The exemption does not automatically apply to servants of employees of such international organizations.
• The exemption does not apply to spouses and children of G non-immigrants who are employed in the United States by anyone other than an international organization.

• H-visas: Certain non-immigrants in H-2 and H-2A status are exempt as follows:
• An H-2 non-immigrant who is a resident of the Philippines and who performs services in Guam;
• An H-2A non-immigrant admitted into United States temporarily to do agricultural labor.
  
  

INFORMATION FOR STUDENTS AND EXCHANGE VISITORS (F-l, M-l & J-l VISA CATEGORIES) PURSUING EMPLOYMENT IN THE UNITED STATES

The U.S. Department of Homeland Security and the Department of State, along with the Social Security Administration, have coordinated several actions in order to ensure that eligible students and exchange visitors can be given Social Security numbers. Some of the actions to facilitate Social Security number issuance involve the cooperation of the student or exchange visitor. If eligible to work in the United States, students/exchange visitors should:

1. Report to their school or to their exchange visitor program as soon as possible after arrival at a U .S. port of entry. This should be done prior to applying for Social Security numbers.

2. Designated School Officials (DSOs) will then follow-up on the arrival of their students by registering them in the Student and Exchange Visitor Information System (SEVIS).

Responsible Officers (ROs) will then follow-up on the arrival of their exchange visitors by validating them in SEVIS.

3. If there are no other conflicts with the requirements of the Social Security Administration and the status of the student or exchange visitor in SEVIS, current students/exchange visitors should receive Social Security numbers.

If the SSA cannot assign an SSN, it will mail a notice of explanation to the applicant. The notice instructs studentS to contact their DSO and request that their SEVIS information be reviewed to ensure that it is accurate. Exchange visitors will likewise contact their ROs and requesthat their SEVIS information be reviewed to ensure that it is accurate. Note that corrections made in SEVIS are accessible to the SSA within 48 hours. Once SEVIS is updated, students/exchange visitors may reapply for SSNs after 48 hours elapse.

If a student or exchange visitor is not assigned an SSN and the DSO or RO believes he/she is authorized for employment, DSOs/ROs should first verify that SEVIS reflects the current status of the student or exchange visitor (e.g. active, inactive, etc.) IfDSOs/ROs are unable to determine the cause of the difficulty, they can contact the Student and Exchange Visitor Program (SEVP) at (703) 603-3400
Source

USCIS Updates Count of FY 2010 H-1B Petition Filings

WASHINGTON April 9, 2009 — USCIS announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.USCIS has received approximately 42,000 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 as the processing of FY2010 H-1B petitions continue.

Source: USCIS Update

H1B FY 2010 Filings Reflect Market Condition

Today, USCIS announced that it has not reached the H1B cap for FY 2010. It has been five business days since H1B cap has been opened. USCIS announced it continues to accept H-1B non immigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. master’s degree or higher educational exemption cap. USCIS mentioned that they would announce to public, the day (final receipt date) when the cap is reached for respective case. The application received on final receipt date would undergo a Mini lottery through computerized generated random selection process. It is not clear as of now whether USCIS will post H1B cap count on daily basis, as they had been doing for so many years or will they just publish the "final receipt date" when cap is reached. If USCIS fails to keep tabs on the updated count on USCIS website, this could be considered as a smart move from their side. By this they could avoid plenty last minute rushed H1B application that are received every year nearing final receipt date, thus reducing their added workload.

It should be recalled that cap for the FY 2009 and FY 2008 were met on first day of April each year, whereas H1B Cap FY 2010 is still open past five business days. USCIS has informed that this year they have received more application under Master’s degree or higher educational exemption cap case whereas number for regular cap is still far from numerical limitation on approved quota. This signifies that demand in H1B filings every year is indicative of the real market condition and America is always in need of skilled workers to thrive in competitive global economy. The filing trend for the fiscal year FY 2010 is reflective of current market condition, inwhere with many unemployed workers available in market there is less need of H1Bs with bachelor’s degree, but unquestionably there is a shortage of personals in few specialized areas which need expertise in highly specific fields that usually require advanced studies.

It should be recalled that author has mentioned in his previous post that America needs talented and skilled workers with advanced degrees and there is a need to reform the immigration system. This calls for total H1B CAP exempt for International students who have earned Masters and PhD from American Universities, thus preventing reverse brain drain of talented individuals who contribute to continuous development of technology in the country. These individuals not only include STEM majors but also Business majors who contribute so much to American Financial System.

Moreover to make America more competitive, there is an acute need to make graduate and post graduate education highly subsidized by US government. This will help every American to get trained in specialized areas requiring expertise. With this done, every American can compete with an international student (F1B) with a higher advanced degree, making it is easy to sustain in any type of economy.

Filing Complaints with US Government regarding mistreatment at Port of Entry (POE)

While the US government and INS/USCIS provides services in a reasonable and fair way at Port of Entry majority of the times, there are times when an immigration officer is rude or abusive. The immigration officer at any US border, represent the very first face of the United States of America, to the incoming visitor. So the immigration officer should be very courteous and service oriented. We know that their job is to safeguard and prevent the entry of any unauthorized person to the country. However, this does not give them an authorization to be rude and arrogant and mistreat visitors. An International traveller visiting the United States has to go through many hassles, such as obtaining visa, purchasing ticket, long journeys across continents or borders, security checks etc. After passing through such ordeals, a warm welcome and courteous tone at Port of Entry would not be a high expectation. If that seems to be too much to ask of the Immigration officers then at least they don't have to go out of their way to be rude and arrogant.

The US government recognizes that sometimes its employees do not provide the kind of service required, and has instituted procedures for filing complaints. While many immigrants often hesitate to file such complaints, fearing that it could result in retaliation, they are necessary to keep the INS informed about the actions of its employees, so that it can properly discipline those who need it, and so that it can institute better training programs. In this case make sure to note down the name and badge number of the Immigration Officer at Port of Entry with the exact time and date you entered US.

Complaints against the INS/USCIS can be made in a number of ways. Those sent to the Justice Department Office of the Inspector General must be made in writing and sent to the following address:

Office of the Inspector General
US Department of Justice
Investigations Division
950 Pennsylvania Avenue, NW Room 4706
Washington, DC 20530

The OIG is the Justice Department’s internal quality control branch.

Complaints may also be filed with the INS Office of Internal Audit. These complaints must also be sent by mail. Complaints will be kept confidential, unlike those made to the OIG. The address to which complaints should be sent is:

Director, Office of Internal Audit
US Immigration and Naturalization Service
425 I St., NW
Room 3260
Washington, DC 20536

Source

Denied Entry to H1B holders at Port of Entry (POE) - A Rumor

There is some concern among H1B holders these days about denied entry to US by Immigration Officer (IO) at Port of Entry (POE) after return from home country or abroad. Though, this may be true in particular cases as with every denied cases with USCIS, but if individual is working for a legitimate company with a valid job offer or employment , and have required paper work to show that he/she is currently employed in good standing with the company, then one should not worry. These reportings are definitely a rumor and have no published news to support them.

Recently two weeks back, I went to Canada for a conference and had no issues getting back to USA. Since I had heard of these rumors, I made sure to carry my latest pay stubs and employment verification letter from my employer. Coming back was as easy as getting out of USA.

Only thing that gets me worried every time I come back to USA is how much acquaintant an Immigration Officer (IO) at POE is of current rules and regulations? During my trip to Canada, I had I-797 from my current employer and valid H1B visa stamp from my past employer. When I handed over my visa and I-797 paperwork, Immigration Officer at Port of Entry was surprised to see two different employer's name on two furnished documents. IO just kept checking each of them for few minutes as if to understand that re-entry to USA with two different documents endorsing two different employer's name is an officially recognized rule. I did not bother to say anything until asked for. After ten minutes, paperwork was handed back to me and formalities for immigration clearance commenced. In the meantime, I made sure to eyeball his name tag for future reference incase things go wrong.

This is not the first time that I experienced this. Similar issue was experienced few years back when I was returning on my F1 visa with I-20 for transferred university. I had to convey it to IO that one need not re-stamp the F1 visa after university transfer, as long as my F1 visa is valid. My suggestion to everyone entering back to US at their respective POE is that they should make a note of Immigration officer’s name and badge number for future reference.

H1B Cap FY 2010 could lead to much needed Reform

For five business days beginning Wednesday, April 1st, United States Citizenship and Immigration Services (USCIS) started accepting petitions for the H-1B for the 2010 fiscal year, which begins Oct. 1. In recent years, visa limits were reached on the first days of the application period.Last year, USCIS published a new rule according to which they will select H1-B visa application received during first five business days through H1B lottery process if cap limit is reached on first day of application. Successively after five business days if cap is not reached, any applications received on the day cap is reached will be used for H1B lottery process. It should be noted that though there is a notion from the last year, that USCIS will accept application for first five business days for H1B lottery if cap is reached anytime within first five days, but this statement has not been explicitly published anywhere this year on USCIS website.

There were wide reports that the H-1B cap filing for FY 2010 will be much lighter this year because of current economic recession and hiring freeze in the companies. With companies laying off so many workers and stringent laws imposed on companies getting bailout money through Trouble Asset Relief Program (TARP), you would expect that H1B cap for FY 2010 will last for few months. But recent article published in New York Times suggests that there still may be rush for H1B visa application this year even as the demands seems to dip. This may be due to large amount of backlog from applicants from last two years, who could not get H1B because of lottery in FY 2009 and FY 2008. Failure to get selected through H1B lottery last year forced these applicants to work on Optional Practical Training (OPT) for more than a year, thanks to the new rule published last year on OPT extension for 17 months for STEM (Science, Technological, Mathematics and Engineering) students. Needless to say big Indian technological companies, who could not get visas last year will try for them this year.

There have been recent reports that Department of Labor (DOL) has become strict on many US based small consulting companies who exploit H1B visa program by filing many H1B application with no legitimate client requirements. These companies are in strict scrutiny by DOL and hopefully will be filing less worker visas this year. There is also information that these small companies to surmount any explanation to DOL this year, plan to file many H1B under Consular Processing (CP). Consular Processing requires applicant to obtain H1B visa stamped before they could work for an employer who filed a petition. This way they will only provide I-797 to their employees when they will have legitimate requirements from the clients.

It has been 3 official days since Cap has been open but there is no formal release on H1B cap count for FY 2010 on USCIS website. There are unconfirmed reports or rumors that on the first day, the agency had received less than 40,000 out of the total cap of 75,820 excluding the free trade special H-1B1 cap numbers for Singapore and Chile (Oh Law firm). Considering the fact that most of the employers had sent in cap petitions on the first day of April, the volume can be considered much lighter this year than that of last year. Those who have filed or will file before the end of the day of April 7, 2009 have good chances to get their H1B application accepted. Only cases that will be subject to the lottery will be those received on final receipt day when cap is reached.

Looking back at those 40,000 numbers for the first day of H1B filing, they seems a lot in this market condition. If cap is reached within few days from now, then there is a specific need to overhaul H1B visa Program plus immediate need to ban some of the participating companies who abuse the system left and right. It is less likely in this economic recession that there is such a high demand for H1B visas when there are so many right candidates available in America especially when unemployment rate hit 8.3% in March 2009.

There is no doubt that America needs talented and skilled workers for continuous economic growth but this should be achieved with rational means and by bringing reform in H1B system through strict regulations by DOL. Major reform in the system also calls for total H1B CAP exempt for International students who have earned Masters and PhD from American Universities thus preventing reverse brain drain of talented individuals who contribute to continuous development of technology in the country. These individuals not only include STEM majors but also Business majors who add so much to American Financial System.