November 2011 Visa Bulletin Predictions - EB Category

November Visa Bulletin will be the second bulletin for FY 2012.  Here is the prediction for November 2011 Visa Bulletin. We should see following movements in each category as long as USCIS/DOS would use visa numbers for each category as per statutory allocations.

November 2011 Visa Bulletin Predictions

October 2011 Visa Bulletin Predictions - EB Category

October Visa Bulletin will be the first bulletin for FY 2012. As with every October visa bulletin for new fiscal year, retrogression can never be discounted. Here is the prediction for October 2011 Visa Bulletin. We should see following movements in each category as long as USCIS/DOS would use visa numbers for each category as per statutory allocations.

EB3 ROW, Mexico & Philippines - FY 2012 Movement Estimation

For FY 2012, EB3-ROW-M-P is expected to move together similar to the movement that was seen for FY 2011. Based on available I-485 inventory, last released demand data, and hidden demand (or Consular Processing demand) that was observed in FY 2011, total EB3-M-P demand until 15th November 2006, will be 34,674. Based on annual allocation for EB3-ROW-M-P, visa number available will be 29,128 +2803 + 2803 = 34,734. Please see table below for detailed calculation. EB3-ROW-M-P is expected to reach 15-November-2006 for FY 2012 based on currently available data. This projection will be updated as cut-off dates will progress in FY 2012.

For FY 2012, EB3-ROW will only use 24,733 visas; EB3-M will use 3,024 visas and EB3-P will end up using 6,917 visa numbers. I-485 demand (or AOS or visible demand) from the inventory that is expected to clear in FY 2012 is 21507, 2326 and 5321 respectively for ROW, Mexico and Philippines in EB3 category.

Last Updated - 22 August 2011

* - Please note that for FY 2011, there was change in demand from inventory to inventory, every quarter. From October 2010 to September 2011, at least 7194 demand for previous already current PDs were added all together. These numbers accounted for at least 50% of increase in demand from inventory to inventory. If this is again observed for FY 2012, cut-off date is expected to reach only until PD July 2006 for EB3-ROW-M-P. We are hoping since most of the cases from LO are now returned to National Service Centers this is less unlikely, but we will need to keep a close eye at difference in demand that  may  evolve from inventory to inventory,

EB2 India & China - What to expect in FY 2012? - (Post Sep VB)

Cut-Off Dates has reached PD 15th April 2007 for EB2-India and China for FY 2011 in September bulletin, now what can we expect for FY 2012?

What movement do we expect for EB2-IC in FY 2012? 

Since now we know that EB2-India and China are stuck at 15^th April 2007 for this fiscal year, we can try and estimate what we can expect for this category in FY 2012.

Eb2-India and China still need 8000 more visas for EB2-IC to cross PD 15 August 2007. This is calculated plainly from the currently released visible demand data, without including 'People Who Missed the Boat" (PWMBs) during July 2007. Expected PWMB until 15 August 2007 cut-off date from September Visa bulletin cut-off date of 15 April 2007 are 8302. We firmly believe any PWMBs before July visa bulletin cut-off date of 08 March 2007 have good chance to get approved by September 30 or even in October, where USCIS usually tend to use some unused visa numbers from the last fiscal year.

So out of total PWMBs of 8,302 for EB2-IC until 15 August 2007, even if we assume that due to the economic recession and other unforeseen reasons, only 50% are eligible to pursue this, numbers still come out to be 4,151. So to sum up, without even crossing EB2-IC PD of July 2007, for next fiscal year EB2-IC has demand of 8,000 + 4,151 = 12,151.

Now we know as and when these PWMBs will become current and file for I-485 in order to become documentarily qualified, by that time we will be in Q2 or beyond for FY 2012. Based on annual limits and not considering any PWMBs, expected movement for EB2-IC is as tabulated below. This is based on no porting and no PWMBs. 

For EB2-India, movement will be very small or expect no movement for first quarter (Q1) and then in Q2 we can expect 1 week movement each month until DOS will try to intake extra inventory in Q3. EB2-China will progress much quicker than EB2-India. For EB2-China we can expect 4 weeks in Q1 and Q2 each, until DOS will allocate any extra movement to intake inventory for spillover season.

EB3-EB2 Porting and PWMBs before 15^th April 2007

Above tabulated estimation can all change, especially for EB2-India, if individuals in EB3 category with PD before 15 April 2007 will start porting. We expect EB3 to EB2 porting for FY 2012  will be at same level as FY 2011. Expected numbers should not be more than 2,800. Other than these porting numbers we should also consider calculated PWMBs before 15^th April 2007, which are 1,958. Again assuming that out of these only 50% are still eligible, this number comes out to be around 979. Out of these we expect 50% or more will use visa numbers from FY 2011 quota. So rollover backlog to FY 2012 will be 488.

So EB3 to EB2 Porting and PWMBs before 15 April 2007 that would be counted towards FY 2012 becomes 2,800 + 488 = 3,288. Of course, porting demand will be realized slowly and hence we can expect little but small movement for EB2- India. Movement depends on PWMB rollover and new porting demand. EB2-China should continue to move as outlined above as we expect no porting, and we expect FY 2011 rollover PWMB demand to be around 150 or less.

What will be the total demand for FY 2012 and how much spillover is required to cross 2007?

So now going back to total demand for FY 2012 as calculated above up to 15 August 2007 and adding demand for PWMBs up to cut-off at that time (4,151- 2,803 = 1,351) assuming dates around 01 June 2007), porting and rollover PWMBs and removing annual limit, (5600) total demand required to cross PD July 2007 (see large font numbers above)

8,000 +1,351 + 3,288 + 150 – 5,600 = 7,189

Total demand of 7,189 will be enough to keep DOS from worrying about taking any new inventory until April 2012. Once year will progress into early Q3, just like this year DOS may start looking into half yearly projected demand for EB1 and EB2-ROW. If at this point, annual visa limit for the EB2-IC (or any of the country) is exhausted due to above stated demand, DOS will start looking into using any available unused visa numbers. Although, DOS/USCIS are constrained to use only 30% of these numbers in first three quarters (but they made exception this year), this move would totally depend upon number of visas available.

If DOS feel there is more than 7189 unused visa numbers that they can expect based on past number use; estimates of future number use and return rates; and estimates of Citizenship and Immigration Service demand based on cut-off date movements (quoted from our previous article), they will plan on taking extra inventory to make I-485 cases documentarily qualified for rest of the fiscal year.  Usually past trend has been around 3000 visa numbers each month for EB2-IC. 

So if expected spillover from half-yearly unused number is 10,000, they will try to intake for 18,000 or less, thus EB2-IC movement will be based on 18,000 – 7,189 = 10,811, thus crossing only 4-5 months from July 2007 at most at first trial and error. If after this movement, in case DOS would see change in demand pattern then they can try to retrogress dates or progress dates in July 2012 (Q4). Next fiscal year ,spillovers can either be used on a quarterly basis or we can expect some big movement in April 2012 and then second recalibration in July 2012.

If first trial and error would cause dates to move until PD December 2007 in early Q3 of FY2012; based on our estimation it will bring 11,664 EB2-I applications; 2,109 more EB2-C application; and  2803 new PWMBs post 01 June 2007 that were not considered above. These EB2-IC numbers comes from PERM data after applying I-140 conversion factor of 78%. After applying this, if we consider most optimistically due to economic recession or other unforeseen reason only 75% are eligible to pursue this anymore, total demand from Aug 2007 until December 2007 becomes  – (0.75 x (11664+2109)) +2803 = 11912 + 2803 = 14715.

Based on above 18,000 spillovers, 10,811 left after July 2007 would only take EB2-India and China to end of November 2007, and dates could retrogress from December 2007 in July 2012 . If we expect next year’s spillover will be same as this FY 2011 (very unlikely), and we will receive 25000 unused visa numbers, EB2-IC in FY 2012 will end up around January 2008. In reality dates can be anywhere between December 2007 to January 2008 for FY 2012.

It should be noted in above scenario I-140 to I-485 conversion is assumed 75% and PWMBs are assumed 50% eligible.

Now final question is if dates will retrogress or move forward after first huge movement in early Q3 for next fiscal year?

We are really hoping that DOS/USCIS should use quarterly spillover than half yearly spillover for next fiscal year. But Mr. Oppenheim being conservative in nature will move dates only in early Q3 around April 2012 and then recalibrate in July 2012. Dates retrogressing or moving forward will totally depend upon EB1 and EB2-ROW demand.

Do we expect retrogression in Q1 for EB2-I?

No, we do not expect retrogression for EB2-I in Q1 FY 2012. In case if that will happen, it will not be more than a month. Chances are very less.  

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.

2012 DIVERSITY LOTTERY PROGRAM Results Voided

**IMPORTANT NOTICE REGARDING THE 2012 DIVERSITY LOTTERY PROGRAM**

We regret to inform you that, due to a computer programming problem, the results of the 2012 Diversity Lottery that were previously posted on this website have been voided. They were not valid and were posted in error. The results were not valid because they did not represent a fair, random selection of entrants, as required by U.S. law.

If you checked this website during the first week in May and found a notice that you had been selected for further processing or a notice that you had not been selected, that notice has been rescinded and is no longer valid.

A new selection process will be conducted based on the original entries for the 2012 program.

If you submitted a qualified entry from October 5, 2010 to November 3, 2010, your entry remains with us. It will be included in the new selection lottery. Your confirmation number to check results on this website is still valid.

We expect the results of the new selection process to be available on this website on or about July 15, 2011.

We regret any inconvenience this might have caused.

Transcript:

“Hello, my name is David Donahue. As the Deputy Assistant Secretary of State for Visa Services here at the U.S. Department of State, I oversee our visa program.

Every year, the Diversity Visa Lottery generates excitement around the world, as entrants hope to be selected for the chance to apply for an immigrant visa to the United States. Some people have already logged on to our Entry Status Check website to view this year’s selection results. Regrettably, the results that were previously posted on this website are not valid. They were posted in error.

These results are not valid because they did not represent a fair, random selection of entrants as required by U.S. law. Although we received large numbers of entries every day during the 30-day registration period, a computer programming error caused more than 90% of the selectees to come from the first two days of the registration period. The computer error that caused this unfair, non-random result has since been corrected. We sincerely regret any inconvenience or disappointment this problem might have caused.

Because this problem unfairly disadvantaged many Diversity Visa Lottery entrants, we will conduct a new, random selection. The new selection will be based on the original entries. If you submitted a qualified entry in 2010 between October 5 and November 3, you do not need to reapply. Your confirmation number to check results on this website is still valid.

We expect the results of the new selection process to be available on the DV Entry Status Check website on or about July 15, 2011. More information is available on our website:

http://dvlottery.state.gov

Again, we sincerely regret any inconvenience or disappointment this problem might have caused. Thank you.”

Frequently Asked Questions

Q: Why was it necessary to invalidate the names that were selected?

• U.S. law requires that Diversity Immigrant visas be made available through a strictly random process. A computer programming error resulted in a selection that was not truly random.

• Since the computer programming error caused an outcome that was not random, the outcome did not meet the requirements of the law, and would have been unfair to many DV entrants.

Q: Is the 2012 Diversity Visa Program cancelled?

• No. The 2012 program will continue. The computer programming error has been identified and corrected. The Department of State will run a new selection using all the qualified entries (ones received between October 5, 2010 and November 3, 2010) it received for the 2012 program.

Q: Do I have to submit a new application?

• No. You may not submit a new application. We will use all qualified entries received during the October 5 to November 3, 2010 registration period.

Q: Will you open a new entry period?

• New entries will not be accepted.

Q: I checked the Entry Status Check website after May 1 and it said I had been selected. Can I apply for a DV visa?

• Unfortunately results previously posted on this website were not valid because the selection process was not fair or random. We will take the entries of all individuals who sent in their registration during the original October 5 to November 3, 2010 time period and run a new lottery. We regret any inconvenience or disappointment this has caused. We expect new results to be available on this website on or about July 15, 2011.

Q: How can I check the results of the new selection?

• The new results should be available on this website on or about July 15, 2011. The confirmation code you received when you registered is still valid for use on the website.

Q: Was the Department of State hacked? Was my personal information at risk?

• We have no evidence that this problem was caused by any intentional act. No unauthorized party accessed data related to the DV program.

This appears to be solely the result of a computer programming error.

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.

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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