Bill Introduced in House to Eliminate Diversity Immigration Visa and Allocate the Numbers to EB based category for individuals with Advanced Degree

A bill has been introduced in House to eliminate Diversity Immigration Visa , referred as DV lottery, and allocate the numbers to EB based category for individuals with Advanced Degree. This bill is much wanted step to overhaul employment based immigration. Professional who have obtained advanced degree in US Universities, and are stuck in limbo due to numbers unavailable will benefit from this bill. To qualify for these numbers individuals should be employed in a profession related to science and mathematics that requires advanced degree, and should be working in US since they graduated.

Details of the Bill

To amend the Immigration and Nationality Act to eliminate the diversity immigrant program and to re-allocate those visas to certain employment-based immigrants who obtain an advanced... (Introduced in House)

HR 3687 IH

111th CONGRESS

1st Session

H. R. 3687

To amend the Immigration and Nationality Act to eliminate the diversity immigrant program and to re-allocate those visas to certain employment-based immigrants who obtain an advanced degree in the United States.

IN THE HOUSE OF REPRESENTATIVES

October 1, 2009

Mr. ISSA introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To amend the Immigration and Nationality Act to eliminate the diversity immigrant program and to re-allocate those visas to certain employment-based immigrants who obtain an advanced degree in the United States.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. ELIMINATION OF DIVERSITY IMMIGRANT PROGRAM.

(a) Worldwide Level of Diversity Immigrants- Section 201 of the Immigration and Nationality Act (8 U.S.C. 1151) is amended--

(1) in subsection (a)--

(A) by inserting `and' at the end of paragraph (1);

(B) by striking `; and' at the end of paragraph (2) and inserting a period; and

(C) by striking paragraph (3); and

(2) by striking subsection (e).

(b) Allocation of Diversity Immigrant Visas- Section 203 of such Act (8 U.S.C. 1153) is amended--

(1) by striking subsection (c);

(2) in subsection (d), by striking `(a), (b), or (c),' and inserting `(a) or (b),';

(3) in subsection (e), by striking paragraph (2) and redesignating paragraph (3) as paragraph (2);

(4) in subsection (f), by striking `(a), (b), or (c)' and inserting `(a) or (b)'; and

(5) in subsection (g), by striking `(a), (b), and (c)' and inserting `(a) and (b)'.

(c) Procedure for Granting Immigrant Status- Section 204 of such Act (8 U.S.C. 1154) is amended--

(1) by striking subsection (a)(1)(I); and

(2) in subsection (e), by striking `(a), (b), or (c)' and inserting `(a) or (b)'.

SEC. 2. VISAS FOR CERTAIN EMPLOYMENT-BASED IMMIGRANTS WHO OBTAIN AN ADVANCED DEGREE IN THE UNITED STATES.

(a) In General- Section 203(b)(2) of the Immigration and Nationality Act (8 U.S.C. 1153(b)(2)) is amended by adding at the end the following:

`(D) CERTAIN ALIENS OBTAINING ADVANCED DEGREES IN THE UNITED STATES- Visas shall be made available, in a number not to exceed 55,000, to qualified immigrants who--

`(i) are a member of a profession holding an advanced degree obtained within the United States;

`(ii)(I) obtained such degree within the United States during the 5-year period preceding the date on which the petition filed under section 204(a)(1)(F) for classification under this subparagraph is filed; or

`(II) has resided continuously in the United States in a lawful nonimmigrant status since obtaining such degree; and

`(iii) whose services in the sciences or medicine--

`(I) are sought by an employer in the United States; and

`(II) will substantially benefit prospectively the national economy of the United States.'.

(b) Numerical Limitation-

(1) IN GENERAL- Section 201(d) of the Immigration and Nationality Act (8 U.S.C. 1151(d)) is amended by adding at the end the following:

`(3) Aliens described in section 203(b)(2)(D) may be issued visas or may otherwise acquire the status of an alien lawfully admitted to the United States for permanent residence in a number not to exceed 55,000 in any fiscal year.'.

(2) CONFORMING AMENDMENT- Section 201(a)(2) of such Act (8 U.S.C. 1151(a)(2)) is amended by striking `and not to exceed' and inserting `and, excluding immigrants described in section 203(b)(2)(D), not to exceed'.

SEC. 3. EFFECTIVE DATE.

The amendments made by this Act shall take effect on October 1, 2009.

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

As of September 25, 2009, approximately 46,700 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Senator Grassley's letter to Director of USCIS to ensure accountability in H-1B visa program

WASHINGTON – One year after an internal assessment showed extensive fraud and abuse in the H-1B visa program, Senator Chuck Grassley today is asking U.S. Citizenship and Immigration Services to hold employers accountable by requesting evidence from petitioners that H-1B visa holders actually have a job waiting for them in the United States.


In his letter to the director of U.S. Citizenship and Immigration Services, Alejandro Mayorkas, Grassley cited an Iowa company that was recently indicted for not having jobs available for the H-1B workers they petitioned for, and placing them in non-pay status upon arrival in the United States. Grassley also noted that the business allegedly submitted Labor Condition Applications with the U.S. Department of Labor that stated prevailing wage data for a location in Iowa rather than the higher prevailing wage for the location outside Iowa where the worker would actually be employed.


“The United States is in need of an immigration overhaul. Porous borders, shoddy workplace enforcement, and fraud-heavy guest worker programs all contribute to our illegal immigration problems. We don’t need a long, arduous legislative process to get at some of the problems. The agency can take immediate steps to eliminate fraud in the H-1B program, including cracking down on body shops that do not comply with the intent of the law. Employers need to be held accountable so that foreign workers are not flooding the market, depressing wages, and taking jobs from qualified Americans,” Grassley said. “Asking the right questions and requesting the necessary documents will go a long way in getting out the fraud in the H-1B program.”


Grassley also asked for an update on the steps being taken U.S. Citizenship and Immigration Services to alleviate other problems found in the 2008 benefits fraud and compliance assessment. The internal report found that more than 20 percent of petitions reviewed were based on fraud. Grassley has proposed several legislative changes to the program, but says this is something that can be done administratively to get at the fraud perpetrated by employers.


Here is a copy of the text of the letter to Mayorkas.


September 29, 2009


The Honorable Alejandro Mayorkas
Director
U.S. Citizenship and Immigration Services
Department of Homeland Security
Washington, D.C.


Dear Director Mayorkas:


It’s been one year since U.S. Citizenship and Immigration Services (USCIS) released its benefits fraud and compliance assessment of the H-1B Non-immigrant Visa Program. This report evaluated the integrity of the H-1B visa program by reviewing a sample of petitions and by taking a comprehensive look at all aspects of the petition process. Unfortunately, the assessment showed that 20.7% of visa cases reviewed were identified as having outright fraud or other program violations associated with them.


Upon release of the benefits fraud assessment, I wrote to Acting Director Jonathan Scharfen to ask what steps USCIS had taken or would take to restore integrity in the program. Acting Director Scharfen reported to me that the agency had issued internal field guidance informing adjudicators of the findings and instructing them to make changes to how they adjudicate H-1B petitions.


While I appreciate the steps taken to alert USCIS Service Center adjudicators about the report and fraud indicators to be watchful for, I am surprised that no guidance has been provided to adjudicators, or to the public, about additional evidence to be gathered from petitioners. Adjudicators were told to “seek to resolve any and all issues through a Request for Evidence” but the guidance did not specify the evidence that should be requested of applicants. One of the changes that USCIS was considering, per Acting Director Scharfen, was clarifying what documentation must be submitted when the alien will be assigned by the H-1B petitioner to a third-party worksite.


We have seen substantial fraud and program violations by employers who bring in H-1B visa holders and then outsource them to other worksites. Such was the case with the indictment of Vision Systems Group, Inc. earlier this year in my home state. U.S. Immigration and Customs Enforcement alleges that the company did not have jobs available for the H-1B workers they petitioned for, and placed them in non-pay status upon arrival in the United States. Additionally, Vision Systems allegedly submitted Labor Condition Applications (LCAs) with the U.S. Department of Labor (DOL) that stated prevailing wage data for a location in Iowa rather than the higher prevailing wage for the location outside Iowa where the worker would actually be employed.


I seek your commitment to tackle this problem immediately. Simply put, adjudicators should be asking companies up front for evidence that H-1B visa holders actually have a job awaiting them in the U.S., i.e. that workers are not coming in only to be “benched” by employers and that the job the workers are filling is the same job and in the same location as the lob/location described in the LCA approved by DOL. I strongly encourage USCIS to request from petitioners that have stated they will be assigning H-1B workers to third-party worksites copies of relevant portions of any and all contracts or agreements between the petitioning company and the third-party worksites that prove the foreign workers will actually have work upon arrival and that the work will in fact be performed at the places described in the approved LCA and in the itinerary submitted with the petition. This evidentiary requirement should be instituted immediately so that USCIS can ensure that H-1B workers are filling true vacancies rather than taking jobs from qualified Americans.


Acting Director Scharfen also noted that the agency was considering other anti-fraud initiatives, including: changing the I-29 petition form; clarifying when a petitioner must file an amended H-1B petition based on a material change in employment; modifying the H-1B evidentiary requirements; prohibiting a petitioner from passing any fee associated with an H-1B petition to the beneficiary; and prohibiting subsequent filings by those who previously were found to have committed fraud in an attempt gain an immigration benefit. I would like an update on these efforts that were being considered by USCIS, including detailed explanations as to why any of them have been shelved or not implemented in the last year.


Acting Director Scharfen also reported that USCIS would “soon begin using independent, open source data available through commercial sources to obtain information regarding the petitioner that would be relevant to the adjudication of the petition.” Has any action on this “independent documentation” effort taken place? Do you, as the new Director, believe that such an initiative is worthwhile, efficient, and necessary?


In addition to the above-mentioned issues, I would like to know what other steps you are taking to alleviate the problems found in the 2008 benefits fraud assessment, including the following:


• Employees are working at locations not identified in the petition and/or Labor Condition Application (LCA);
• Actual job duties differing from those described in the LCA and petition;
• Failure to pay prevailing wage or required the beneficiary to pay some or all of the American Competitiveness and Workforce Improvement Act of 1998 fees;
• Use of fraudulent or forged documents or signatures; and
• Aliens misrepresenting they were maintaining status when returning to the U.S. even though they previously had failed to maintain H-1B status.



Fraud in the H-1B visa program only hurts companies that play by the rules and truly need highly skilled workers. For this reason, it’s vitally important that your agency take all steps necessary to eliminate abuse and take action against those who do not comply with the law.


When we met prior to your confirmation hearing, you committed to rooting out fraud and abuse in all visa programs, but specifically the H-1B visa program. Upon being confirmed, you also answered several questions for the record, including ones that I submitted about the H-1B visa program. You said, “I believe the existence of fraud in the H-1B visa program needs to be addressed forcefully.” Your statement complements that made by Secretary Napolitano herself in her testimony before the Senate Judiciary Committee last May: “From an enforcement standpoint, my priority is to make sure that there’s not fraud occurring within the H-1B program at all.” You also said you would promptly conduct a thorough review of USCIS programs to identify areas in need of improvement and in need of increased focus, and that you would develop a close working relationship with ICE to ensure that fraud and abuse are addressed through criminal prosecution.


I look forward to hearing about the thorough review that you promised to undertake as soon as you were confirmed. I appreciate your consideration of the issues I have raised, and await your speedy response to this letter.


Sincerely,




Charles E. Grassley
United States Senator

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

As of September 18, 2009, approximately 46,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Questions & Answers: Pending Employment-Based Form I-485 Inventory

Questions & Answers: Pending Employment-Based Form I-485 Inventory

Q: Why is the wait so long for my employment-based green card?

A: A visa must be available before a person can obtain an employment-based green card. Because more people want a green card than there are visas available, not everyone who wants a green card can get one immediately. Therefore, some people have to wait in line until a visa is available. The U.S. Department of State (DOS) gives out 140,000 employment-based visas each year. About 85% of those visas go to people seeking a green card in the United States, while about 15% go to people seeking to immigrate from abroad. Currently, about 234,000 people have employment-based adjustment of status (green card) applications pending in the United States and are waiting to get a visa. How long you wait for a visa depends on the supply and demand for your particular preference category, your priority date, and the country your visa will be charged to, usually your country of birth.

Q: How can I determine my place in line based on my priority date?

A: Your preference category, priority date, and country of origin determine your place in line for a visa. The earlier your priority date is, the closer you are to the front of the line. To better assist you in knowing your place in line, we are posting a report of our total pending inventory of applications for employment-based green cards (Form I-485, Application to Register Permanent Residence or Adjust Status) for those seeking to adjust status in the United States. See the “Pending Employment-Based Form I-485 Report” link to the right. We are also posting five other reports by country of chargeability (China, India, Mexico, Philippines, and All Other Chargeability) (see the links to the right).

The “Pending Employment-Based Form I-485 Report,” displays the total number of pending adjustment of status applications, per preference classification. The report shows how many pending adjustment of status (green card) applications in each preference classification have priority dates in a given month and year. You can use this chart to determine how many applicants in your preference classification have priority dates in the same month and year as your own. Also, you can determine how many applicants in your preference classification are ahead of you in line for a visa number by adding together the number of cases with an earlier priority date than your own.

The All Other Chargeability report shows how many applicants from countries other than China, India, Mexico, and the Philippines have priority dates in a given month and year. The report is broken down into separate charts for each preference classification. If you are from a country other than China, India, Mexico, or the Philippines, you can use this chart to determine how many applicants for adjustment of status in the same preference classification have a priority date in the same month and year as your own. This chart also lets you know how many applicants in the same preference classification have earlier priority dates.

Because of historically higher demand for visas from China, India, Mexico, and the Philippines, each of those countries has its own separate report. As published in the DOS Visa Bulletin, applicants from those countries will need to have earlier priority dates than like applicants from other countries to get a visa in any given month. If you are from China, India, Mexico, or the Philippines, you may want to use the report for your particular country. Your country report will show you how many applicants from the same country and preference classification have a priority date in the same month and year as your own. The report will also let you know how many applicants from the same country and preference classification have earlier priority dates.

Q: Which report should I use, the Pending Employment-Based Form I-485 Report or the country-specific reports?

A: All applicants for an employment-based green card may use the pending Form I-485 report to determine their place in line for a visa. Because certain countries experience higher demand than others, applicants in these “oversubscribed” countries may move forward in line more slowly than applicants in countries experiencing less demand. In other words, in order to obtain a visa, applicants in oversubscribed countries may need to have earlier priority dates than applicants in countries experiencing less demand. Applicants in oversubscribed countries may therefore want to also refer to the report for their specific country of chargeability to determine where they stand in line with other applicants from that country.

Q: What information do I need to have before using the pending Form I-485 inventory reports?

A: You need to know your priority date and your preference category to use the pending Form I-485 inventory reports. For more information on priority dates and preference categories, see the “Visa Availability & Priority Dates” and “Green Card Eligibility” links to the right.

Q: How do I read the pending I-485 inventory reports?

A: First, click on the link to the report you want to view. Once you click on the link, the report will appear and you will see a series of charts, one for each preference category. You will see that each chart has different numbers for each month and year. These numbers show how many green card applicants have priority dates in that month and year. To figure out how many applicants have earlier priority dates, add all the numbers from all the cells that correspond to earlier months.

Q: Can you tell me when I will get a visa?

A: Unfortunately, we cannot determine how long it will take for you to get a visa. However, we hope that by showing applicants with a pending Form I-485 where they stand in line to get a visa, you will get a better sense of how long it may take. We intend to update the data in these reports quarterly. By comparing newer versions of the reports with older ones, you may see that the number of applicants ahead of you has gotten smaller, and you may be able to tell how much shorter the line has become. We hope this will give you an even better sense of how long it may take for you to get a visa.

Reference

Case Status Inquiries with the Service Centers

WASHINGTON - U. S. Citizenship and Immigration Services (USCIS) has issued instructions on making inquiries with the agency's four Service Centers. Customers, community-based organizations and liaison groups should follow this guidance when inquiring about case related issues. This new process standardizes customer service and streamlines processing of customer inquiries at USCIS Service Centers. The step-by-step instructions are as follows:

Step 1: Contact the National Customer Service Center (NCSC) at 1-800-375-5283. The NCSC can assist customers, community-based organizations and liaison groups with case related inquiries. Before calling the NCSC please have available your receipt number, alien registration number, type of application filed and date filed. During your call we recommend that you take note of the following information:

-The name and/or id number of the NCSC representative

-The date and time of the call

-Any service request referral number, if a service referral on a pending case
is taken

Step 2: If more than 30 days have passed since you contacted the NCSC and the issue has not been resolved or explained you can email the proper USCIS Service Center to check the status of your case.

-California Service Center: csc-ncsc-followup@dhs.gov

-Vermont Service Center: vsc.ncscfollowup@dhs.gov

-Nebraska Service Center: ncscfollowup.nsc@dhs.gov

-Texas Service Center: tsc.ncscfollowup@dhs.gov

Please note: Emails should be sent to the Service Center that has jurisdiction over your case. The receipt notice will indicate EAC for the Vermont Service Center, SRC for the Texas Service Center, LIN for the Nebraska Service Center, and WAC for the California Service Center.

When contacting the Service Centers by email you will need to provide the information outlined in Step 1. If the NCSC did not issue a service request after your call, please indicate the reason the NCSC representative did not issue the request.

Step 3: In the event you do not receive a response within 21 days of contacting the appropriate Service Center, you may email the USCIS Headquarters Office of Service Center Operations by email at: SCOPSSCATA@dhs.gov. You will receive a response from this email address within ten days.

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

As of August 28, 2009, approximately 45,100 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

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

As of July 3, 2009, approximately 45,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

H1B FY 2010 Cap Count : June 29, 2009

As of June 26, 2009, approximately 44,800 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Bill gives in-state tuition to foreign professionals, families in Washington on H1B visa

A little-noticed measure passed by the Legislature and signed into law by the governor will extend in-state tuition rates at Washington state colleges and universities to foreign professionals at companies such as Microsoft and Amazon, as well as to their children and spouses.

Under House Bill 1487, which takes effect July 1, the foreign workers would qualify for the same tuition rate as state residents if they have been in the state at least a year on certain kinds of temporary work visas, such as the H-1B.

The measure passed amid a roiling budget crisis and hundreds of millions of dollars in cutbacks to higher education. It was nicknamed the "Microsoft subsidy bill" by some lawmakers who say the software giant and its workers surely could afford to pay the higher tuition rates.

Subject to lively legislative debate, the bill received little attention outside the Capitol. An analysis put the immediate tuition revenue loss at the University of Washington at about $430,000, with potential for bigger losses in future years, and about $215,000 at Washington State University.

State Rep. Ross Hunter, D-Medina, the bill's sponsor, retired from Microsoft in 2000 after 17 years. He said employers in his Eastside district sought the provision as a tool for recruiting foreign talent.

"There are a bunch of people in my district who are in this situation," said Hunter, who is running for King County executive.

The bill passed the House 59-38 and the Senate 31-13.

Lydia Tamez, associate general counsel and director of global migration at Microsoft, said it would allow Washington to attract and keep talented foreign professionals and to compete with about 13 other states, including Oregon, that already offer tuition breaks to foreign workers.

Microsoft has thousands of workers who may qualify.

The company said spouses of the visa holders often cannot work legally in the U.S., leaving the costs of college classes or pursuing a college degree to be borne on a single income.

"These are people who are here lawfully, and are going to be here for a long period of time," Tamez said. "It makes it affordable for workers who are your neighbors, pay taxes, buy homes and whose kids hang around with your kids to possibly earn a second degree at night."

A state resident who is a full-time undergraduate at UW will pay $7,677 in tuition and basic fees next year, compared with $24,352 for a full-time nonresident student. Read Full Article ...

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

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

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

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

H1B FY 2010 Cap Count : June 19, 2009

As of June 19, 2009, approximately 44,500 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

USCIS to Resume Premium Processing for I-140 Petition Starting June 29, 2009

WASHINGTON—USCIS announced today that effective June 29, 2009, it will resume Premium Processing Service for Form I-140, Immigrant Petition for Alien Worker, in accordance with 8 CFR 103.2(f)(2). After an evaluation of its I-140 backlog reduction efforts and increased I-140 adjudicative efficiencies, USCIS has concluded that it is now able to provide Premium Process Service for this benefit. USCIS will accept Premium Processing requests for Form I-140 Immigrant Petition for Alien Worker ,involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Workers other than Skilled Workers and Professionals.

Premium Processing Service is still not available for Form I-140, Immigrant Petition for Alien Worker, involving EB-1 Multinational Executives and Managers and EB-2 Members of Professions with Advanced Degrees or Exceptional Ability seeking a National Interest Waiver.

Under the Premium Processing Service, USCIS guarantees petitioners that, for a $1,000 processing fee, it will issue either an approval notice, or where appropriate, a notice of intent to deny, a request for evidence or open an investigation for fraud or misrepresentation, within 15 calendar days of receipt. If the petition is not processed within 15 calendar days, USCIS will refund the $1,000 fee and continue to process the request as part of the Premium Processing Service. In addition to faster processing, petitioners who participate in the program may use a dedicated phone number and e-mail address to check on the status of their petition or ask any other questions they may have concerning their petition.

Premium Processing Service continues to be available for previously designated classifications within Form I-140 and Form I-129, Petition for Nonimmigrant Worker.

Information about the expanded Premium Processing Service, including what classifications are eligible to request such processing, is available on the USCIS website at www.uscis.gov or by calling the USCIS National Customer Service Center toll free at 1-800-375-5283.

Indian and China Born Natives : Is it time to bid adieu to the 'American Dream' ?

Mr. Charles Oppenheim of the Department of State Visa Office recently issued predictions for the movement of priority dates for the remainder of the fiscal year and future years. This article will be important to individuals from India and Mainland China. If you have applied for or planning to apply for a permanent residence in employment based: EB1 , EB2 or EB3 category and currently stuck in a ' Green Card ' limbo, your wait can be indefinite unless we see legislative Immigration Reform in Senate. Predictions don't look positive for these individuals.

Some of the predictions that Mr. Oppenheim stated are :

• EB1 category : Options for the best and the brightest graduates are unscrupulously limited. The first preference category reserved for multinational executives, people of extraordinary ability and outstanding researchers and professors who were born in India or China could require the establishment of a cut-off date in August or September, should the demand for visa numbers remain heavy.This will be after a longtime, one will ever see a cut-off date for these individuals.

• EB2 category: If you have Masters Degree from a top Ranked American University and you are one of the major research contributor in your company or you are an individual with 5 years experience in a niche field, you have to wait long for your permanent residence. Reason being simple that you were born in India or China. Predictions: Department of Labor has certified unavailability of visa numbers can cause these workers might have to wait as long as 10 years to process a green card. This category may become completely unavailable in August or September of fiscal year 2009.

• EB3 category : At this time, no immigrant visas are available to persons with mere bachelor’s degrees, even in science, engineering, technology or mathematics. Predictions: Department of State currently estimates that, as of October 1, 2009, the EB-3 worldwide cut-off date will be March 1, 2003.

Mr. Oppenheim also mentioned that the historically underused categories for religious workers, immigrant investors and other special immigrants have also experienced a surge. This has caused less number of these unused visa numbers to be available for Employment-Based EB1 and EB2 category. This means that EB-2 immigrants from China and India could have an even longer wait to obtain green cards.

Countries like Australia, Canada and New Zealand have point system for immigration to the country. Once individual have achieved specific points, he or she can migrate to country and attain permanent residence. Senate should look into such alternatives to overcome some loopholes in the immigration system. Other alternative can be that an employment based program should have quota based on occupation (Science, Technology (IT), Engineering, Mathematics, Business, Management, Healthcare and so on) and not based on countries. For America to prosper, it need skilled workers based on their qualification and not based on race. DOL/DHS could issue occupation pressure list every month, thus making quota current and unavailable as per need.

If we will not see any overhaul in the employment based program, soon US will no more be an attractive destination for students and skilled workers. Many skilled workers would start looking at other countries to study, to conduct research, to invest in and to live in, thus other nations will leap ahead at lightening speeds. These countries would love to have skilled workers to have edge over their counterpart. Recently to take advantage of broken immigration system in US, Canada has started Fast-Track Immigration program for skilled workers who are in US on H1B visa. This program doesn't require valid job offer for an individual to migrate to Canada. In addition, EU brought reform in the immigration to attract skilled workers by introducing "Blue Card". We will soon see more of such reforms by other nations to attract skilled labor class.

On other hand, Foreign students and workers who might prefer to stay in the US can, and increasingly will, also return to their home countries to launch businesses. They can then compete with American companies instead of adding value to them. And when they return home, they can honestly say that America is not the land of opportunity for people like them. In addition, dearth of skilled workers will cause many companies to outsource their businesses to countries like India and China. This will cause nothing but increase mobility of many American jobs being bangalored to these countries.

Does it make sense to educate international students at top universities and then, when at the point where they are ready to contribute to US economy, say it’s time to go home? It has been 20 years since Senate increased the quota for employment immigrant visas. While US went from Senior Bush to George W. Bush in past two decades, employment visa quotas have been hopelessly stuck in limbo. If an individual from India and China is expecting that they will see something like July 2007 fiasco by DOL/DHS in near future, then answer is NO. DOL will be very careful in releasing their visa predictions after July fiasco. If soon we will not see any reform in immigration for skilled worker class, then it may be a good time to bid adieu to the 'American Dream'.

H1B FY 2010 Cap Count : June 12, 2009

As of June 12, 2009, approximately 44,400 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

July Visa Bulletin 2009 : Visa Numbers Retrogress for EB2 China Mainland Category

July 2009 visa bulletin is out. As predicted, the cutoff date for China in the EB2 category has retrogressed to January 1, 2000. The June Visa Bulletin will become effective as of July 1st. Thus, the June Visa Bulletin, with an EB2 China cutoff date of February 15, 2005 remains effective through June 30, 2009. So applicants with priority date before February 15, 2005 should rush their applications as soon as possible.


Last month DOL retrogressed the EB2 numbers for category India. DOL claims that high level of demand in the EB2 category, and the need to keep within the annual limits is set by law. The DOS also stated that it is currently not possible to estimate whether this retrogression will continue for the rest of the fiscal year. Cut off date in EB-2 category is current for ROW, where as it is January 1, 2000 for natives from India and China Mainland.

Visa numbers for EB3 is Unavailable for everyone in this category. It is predicted that this may be unchanged for entire fiscal year. Wait for green card could be indefinite for applicants from India and China category. Soon this long waited "American Dream" will become nothing but "American Nightmare".

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

As of June 5, 2009, approximately 44,400 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

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

Senators Durbin-Grassley: When will we get our Reform Bill?

Senator Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) introduced the H-1B and L-1 Visa Reform Act last month–that would reform the H-1B and L-1 guest-worker programs to prevent abuse and fraud and to protect American workers.

Senator mentioned in their bill that they would mend H-1B visa program, not end it, while making reasonable reforms that will not reduce H1Bs which are available. Bill talks about amending H1-B and L1-B visa programs. Some of the key requirements of the bill are

• Require all employers who want to hire an H-1B guest-worker to first make a good-faith attempt to recruit a qualified American worker. Employers would be prohibited from using H-1B visa holders to displace qualified American workers.

• Prohibit the blatantly discriminatory practice of “H-1B only” ads and prohibit employers from hiring additional H-1B and L-1 guest-workers if more than 50% of their employees are H-1B and L-1 visa holders.

It is rational by all means that Senators want to protect American workers and would like to prevent abuse and fraud that take place at some companies, especially the one which relates to replacing American worker group. But Senators should note that DOL is already getting tough on scrutinizing LCAs from petitioners and USCIS would not approve cases unless petitioner is clean. So DOL/INS is already working on overcoming some loopholes. This bill would not add anything to what DOL/USCIS is currently working on. There is no need of such amendment in the system when steps are already taken. This bill will do nothing but restrict employer from hiring skilled workers to avoid unnecessary audits and paperwork.

If Senator’s main objective behind such bills is to overcome the loopholes in H-1B and L1-B visa program, then there are other ambiguities in the program that should be addressed. Some of these ambiguities are:

• H1-B and L1-B workers pay Social Security and Medicare taxes every year. Once skilled worker leaves the country, not an iota of this tax is returned, but rather goes into Federal Reserve. Program calls for immediate reform to amend the system that will allow returning skilled worker to withdraw their contribution. These taxes should be returned fully, or at least some percentage should be available to withdraw. This could be based on number of years skilled worker was in the country.

• L1-B program allows dependents to obtain EAD and work full-time while the principal beneficiaries are in the country. Such amendment should be added to H1B program as well. Spouses of these skilled workers are well educated and could contribute to American economy. Currently spouses (H4 visa beneficiary) either have to give up their career to accompany the principal beneficiary or have to wait long time till they could find a petitioner to file their work visa to join them. Amendment in the program could also be achieved by counting these dependents towards small amount of H1B visa number cap, and their case being approved depending on individuals skill set. DOL could also issue H4 visa approved skilled occupations by which they will qualify for some visa numbers.

• H1-B worker when laid off, has only 2 weeks to find a new job that will transfer their H1-B visa. Unsuccessful to find a job, they become out of status and have to leave the country in 10 days. Country allows Americans to collect unemployment benefits for 33 weeks (46 weeks with a new rule), assuming that individual will take at least 33 weeks to find a new job. Similar time period should be provided for skilled workers as long as he/she has valid 3 years on his/her visa left. It is totally impractical to find a new job in 2 weeks.

• Most of the skilled worker visas are utilized by Computer/IT/Software engineers. System calls for different visa-type for such workers. H1B visa should only be available for other occupations. Cap on H1B visa could be reduced if new form of visa will be available of Computer/IT/Software workers.

• Employment based green card program should have quota based on occupation (Science, Technology (IT), Engineering, Mathematics, Business, Management, Healthcare and so on) and not based on countries. For America to prosper, it need skilled workers based on their qualification and not based on race. DOL/DHS could issue occupation pressure list every month, thus making quota current and unavailable as per need.

There is an acute need to have aforementioned reforms in the system. When will we see such amendments or bills from these Senators that will benefit skilled worker class? Or as said by various source, all we should expect from them is more xenophobic legislation?

U.S. Inquiry Into High-Tech Hiring

SAN FRANCISCO — The Justice Department has begun an investigation into whether the recruiting practices of some of the largest technology companies violated antitrust laws, according to two people with knowledge of the investigation.

The investigation targets some of Silicon Valley’s best known companies, including Google, Yahoo, Apple and several others, these people said.

The exact focus of the inquiry is unclear, but the people familiar with it said Justice Department lawyers appeared to be looking into whether the companies involved agreed to not actively recruit employees from each other.Read Article ...

H1B FY 2010 Cap Count Update: May 29, 2009

As of May 29, 2009, approximately 45,800 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.