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

EB2 Category will see atleast 12,000 Spillover from EB1 for FY 2011

As per recent statement by Mr. Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting Division, U.S. Department of State, it appears that India EB2 cutoff dates will advance, perhaps substantially, in May. This means that China EB2 cutoff dates will also advance with them.

Mr. Oppenheim said “[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

Statement in red could be read in two ways

a) This means bare minimum 12000 will be available for entire fiscal year based on current indication or trend.
OR
b) This means 12000 visa numbers are available from EB1 right now and we can expect 24,000 unused visa numbers for rest of the year.

On a conservative side, I would think at least 12000 unused EB1 visa numbers will be available for spillover for the entire fiscal year. Apart from this we could also expect spillover from unused EB4, EB5 and EB2-ROW-P-M category later in the last quarter.

But contradictory to a) is the statement published on the other website which suggests "The Department of State announced that the Indian EB2 category is expected to advance one week in the May Visa Bulletin. The demand for EB1visa numbers has decreased by 50 percent this fiscal year. Last year from October 2009 to February 2010, 22,000 EB1 numbers were used. During the same period this year, only 10,000 to 11,000 have been used. EB1 will be current worldwide all fiscal year. This will free up an estimated 12,000 visa numbers to fall down from EB1 to EB2 this year."

Please ignore the statement on movement by only one week, which seems little too unrealistic. If we closely look at statement in red, this suggest at least 18000 spillover from EB1 to EB2 category this year.

Based on above two scenarios, a) and b), we will update our "May visa Bulletin Prediction" and "Prediction for EB2 Category for FY 2011".

Indeed this is a good news for EB2-India and China applicants who are waiting for some visa numbers for long time.

PERM Processing Time Starts to Slump

DOL recently released current PERM processing times. It looks like fire-sale is almost over and PERM processing time will again start creeping towards 1-2 months wait or more in coming months. 5 days approval will be a history. Temporary Government shutdown is still not in effect and this will delay the processing time further when some decision about it will be made during April 8, 2011. The Senate votes to fund the federal government through April 8. But the stalemate over 2011 spending remains, and no one wants to pass another short-term stopgap. Is the stage now set for a government shutdown next month is yet to be known. How this will affect further processing times no one knows.

PERM Processing Times as of March 9, 2011

• Analyst Reviews: February 2011
• Audits: March 2009
• Standard Appeals: June 2008
• Government Error Appeals: Current

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.)
©MurthyDotCom
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.
©MurthyDotCom
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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US Labor Department issues proposed rulemaking revising H-2B program

Proposed rule seeks to enhance access to jobs, benefits and protections for US workers

WASHINGTON — The U.S. Department of Labor's Employment and Training Administration and its Wage and Hour Division today announced the publication of a proposed rule that seeks to improve the H-2B temporary non agricultural worker program. The proposed rule, to be published in the March 18 edition of the Federal Register, includes changes to several aspects of the program to ensure that U.S. workers receive the

same level of protections and benefits as temporary foreign workers recruited under the H-2B program, and to provide better access for employers with legitimate labor needs.

The H-2B program allows the entry of foreign workers into the United States on a temporary basis when qualified U.S. workers are not available and when the employment of those foreign workers will not adversely affect the wages and working conditions of similarly employed U.S. workers. The H-2B program is limited by law to a program cap of 66,000 visas per year.

"As our economy continues to recover, it is important for U.S. workers to receive access to all jobs, and that the H-2B program is used as it was intended," said Secretary of Labor Hilda L. Solis. "At the same time, workers employed through the H-2B program must be treated fairly."

In order to streamline and improve the program for employers, the proposed rule would create an H-2B registration process that would allow employers to conduct labor market tests closer to their date of need before applying for a certification. It also would eliminate job contractors as users of the program.

The department further proposes to improve U.S. workers' access to jobs and increase worker protections by creating a national job registry for all H-2B job postings; requiring employers to provide documentation that they have taken appropriate steps to recruit U.S. workers, rather than permitting employers to attest to such compliance; enhancing transparency by requiring employers to submit agency agreements and through the

use of foreign recruiters; reinstating the role of state workforce agencies in providing expertise on local labor market conditions and recruitment patterns; and increasing the amount of time during which U.S. workers must be recruited.

Additionally, the department proposes to extend H-2B program benefits to workers employed alongside those recruited under the H-2B program; require employers to pay transportation costs and other fees; and enhance enforcement by giving the department's Wage and Hour Division independent debarment authority.

To view a copy of the forthcoming Federal Register notice, visit http://s.dol.gov/DK. Members of the public are invited to submit comments on this proposed rule via the federal e-rulemaking portal at http://www.regulations.gov. The deadline for comments is May 17, 2011.

Read this news release en Español.

ETA News Release: US Labor Department issues proposed rulemaking re...

H·2B Notice of Proposed Rule making Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States

The Immigration and Nationality Act provides that the Secretary of the Department of Homdand Security (DHS) must consult with "appropriate agencies of the Government" before granting any H-2B visa petitions. Through regulation, DHS delegated to DOL labor certification and enforcement authority for the H·2B program. As part of its labor certification responsibility, DOL's Employment and Training Administration (ETA) certifies whether U.S. workers capable of performing the jobs for which employers are seeking foreign workers are available, and whether the employment of the foreign workers will adversely affect the wages and working~ conditions of U.S. workers similarly employed. As part of its enforcement responsibilities, DOL's Wage and Hour Division (WHO) enforces compliance with the conditions of an H-2B petition and DOL-approved temporary labor certification.

The proposed rule will:

• Address the critical issue of U.S. worker access to the jobs for which employers see~ H·2B workers through a re-engineered program design which focuses on enhanced U.S. worker recruitment and strengthened worker protections.

• Through more robust domestic recruitment, assist employers to find domestic labor lor those positions the employers would otherwise seek to fill with temporary H-2B wOIk.ers.

• Strengthen existing worker protections. establish new protections, and enhance program integrity measures and enforcement to ensure adequate protections for both U.S. and H2B workers.

• Ensure that only those employers who demonstrate a legitimate temporary need for temporary foreign workers have access to the H·2B program.

Major features of the NPRM include:

• Creating a national electronic job registry for all H·2B job orders (an expansion of ti le H2A job registry) to improve U.S. worker access to nonagricultural jobs and help employers find workers from across the U.S.

• Enhancing the recruitment of U.S. workers, increasing the amount of time for which U.S. workers must be recruited, and requiring the hiring back of fanner employees when available.

• Requiring employers to engage in post-filing recruitment of U.S. workers, thereby demonstrating compliance with the prerequisites for bringing H-2B workers into the country.

• Creating an H-2B Registration process in which employers must demonstrate temporary need before applying for a labor certification. Temporary need (other than for a one-time occurrence) can be no more than 9 months. This would result in a more streamlined process that would allow employers to conduct the labor market test closer to the date of need without the simultaneous adjudication of temporary need.

• Reinstating the critical role of the State Workforce Agencies (SW A) in assisting employers by using their expertise on local labor market conditions and recruitment patterns, thereby expanding job opportunities for U.S. workers.

• Maximizing the use of the program by employers with legitimate temporary need through the elimination of job contractors from the program, on the basis that they have a permanent need for workers.

• Providing greater transparency by requiring employer disclosure of agency agreements and use of foreign recruiters in the solicitation ofH-2B workers.

• Extending H-2B program benefits, such as wages and transportation, to similarly employed U.S. workers to ensure these workers are not receiving lower wages or benefits than the foreign workers.

• Strengthening worker protections through inclusion of the following provisions:

· ./ Payment or reimbursement of transportation and subsistence for workers tolfrom the place from which the worker has come to work for the employer;

· ./ Payment or reimbursement of visa, border crossing and related governrnent-maIdated fees;

· ./ Provision of all tools, supplies and equipment;

· ./ Offering each worker employment for a total number of work hours equal to at least three-fourths of the workdays of each 4-week period and requiring full-time work of at least 35 hours per week;

· ./ Provision of accurate earnings statements with clear and lawful deductions; and

· ./ Requirement that employers provide workers with copies of the job orders no la :er than the time at which the worker applies for the visa, if the worker is departing directly from his or her home country, and display a poster describing employee rights and protections in English and another language common to the workers, t the work site.

• Strengthening debarment authorities by providing WHD with independent debarment. It authority in addition to ETA, and providing revocation authority to ETA.

Source: http://aila.org/content/default.aspx?docid=34889

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

Process for H2B visa

Who is eligible?

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

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

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

Visa validity

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

Filing the I-129 Petition

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

Applying for the Visa

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

The H-2B visa application includes:

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

  The necessary filing fees

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

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

Entry into the US

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

When to file

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

Bringing family members

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

Petitioning for several workers

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

Process for H1B Visa

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

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

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

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

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

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

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

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

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

H-1B frequently asked questions

Q. Can the H1B employee work at different sites?

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

Q. Can employment/contracting agencies sponsor H1B visas?

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

Q. How many H1B visas are available each year?

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

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

Q. What happens when the annual quota is reached?

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

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

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

Q. How long does the process take?

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

Q. Is it possible to speed up the process.

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

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

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

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

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

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

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

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