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

May 2011 Visa Bulletin Predictions - EB Category

Updated 03/29/2011 - Based on recently released data

Here is the prediction for May 2011 Visa Bulletin. We should see following movements in each category as long as USCIS/DOL would use visa numbers for each category as per statutory allocations.

Predictions

• EB3- China could advance to 08 April 2004


• EB3-Philippines could advance to 22 August 2005.


• EB3-Mexico could advance to 15 August 2004.


• EB3-ROW could advance to 22 August 2005.


• EB2 will be current for ROW, Mexico and Philippines.


• EB3-India could advance to 15 April 2002.


• EB2-India would see movement till 15 December 2006 (based on EB1 spillover of 12000, half yearly EB2-demand and half-yearly unused EB4 and EB5 numbers).


• EB2-China could advance to 15 December 2006.

Finally, a Startup Visa That Works!!!

This bill is currently discussed a lot among immigrant community. This would add new category EB6 to the employment-based category with out addition of visas to total annual quota of 140,000 visas. This visa is an amazing opportunity for individuals who would like to start a business or a company in USA. On other hand it has been proposed that any unused EB5 numbers should Fall down to this EB6 category before the numbers could be made available to EB1. Introduction of this visa will definitely impact spillover in long run. Investment involved is not that high, so definitely there is a scope for fraud or to use this visa as a stepping stone visa to transfer to other non-immigrant visas during an open window of 2 years. Time would tell. Until then it is necessary that more information is published on this new visa type.

Finally, a Startup Visa That Works
- By Vivek Wadhwa

In my last post about the Startup Visa, I was very critical of the Kerry–Lugar legislation. That’s because it required immigrant entrepreneurs to raise at least $250,000 in financing for their startups, of which $100,000 had to come from American VCs or Super Angels. Few startups raise this kind of seed money—even in Silicon Valley. I couldn’t foresee this bill generating more than a few dozen jobs. Yet our political leaders would have claimed “Mission Accomplished”, and we would have lost a valuable opportunity to stem the brain drain.

I was delighted to receive an e-mail, last week, from Garrett Johnson, who works for Senator Richard Lugar (R-Ind.). Garrett said that the Senator had read my articles and asked his staff to consider my comments. After consulting with Bob Litan, of Kauffman Foundation; Brad Feld, of Foundry Group; Eric Ries, of the lean-startup movement; and other champions of the visa, Garrett had revised the legislation. He sent me a draft of the bill that was introduced today. This new legislation is even better than I had hoped for. If it gets through both houses—and doesn’t have bureaucratic constraints—I expect it to unleash a flood of entrepreneurship.

The new legislation provides visas to the following groups under certain conditions:

1. Entrepreneurs living outside the U.S.—if a U.S. investor agrees to financially sponsor their entrepreneurial venture with a minimum investment of $100,000. Two years later, the startup must have created five new American jobs and either have raised over $500,000 in financing or be generating more than $500,000 in yearly revenue.
2. Workers on an H-1B visa, or graduates from U.S. universities in science, technology, engineering, mathematics, or computer science—if they have an annual income of at least $30,000 or assets of at least $60,000 and have had a U.S. investor commit investment of at least $20,000 in their venture. Two years later, the startup must have created three new American jobs and either have raised over $100,000 in financing or be generating more than $100,000 in yearly revenue.
3. Foreign entrepreneurs whose business has generated at least $100,000 in sales from the U.S. Two years later, the startup must have created three new American jobs and either have raised over $100,000 in financing or be generating more than $100,000 in yearly revenue.

The investor must be a qualified venture capitalist, a “super angel” (U.S. citizen who has made at least two equity investments of at least $50,000 every year for the previous three years), or a qualified government entity.

The really good news is that this enables foreign students and workers who are already in the U.S. to qualify for a visa. The requirements for them are very reasonable—they must show that they have enough in savings not to be a burden to American taxpayers, and get a qualified investor or a government entity such as the Small Business Administration to validate their ideas by making a modest investment.

Yes, there is a risk for holders of this visa that, if their venture fails or doesn’t go anywhere, they must start again or leave the U.S. But that’s entrepreneurship—there are no guarantees. This won’t appeal to everyone, and it is not meant to. The Startup Visa is for risk takers.

This version of the bill will, I expect, encourage tens of thousands of workers trapped in “immigration limbo”, and foreign students who would otherwise return home after graduation, to try their hands at entrepreneurship. Many of these people would not otherwise have considered entrepreneurship; they will now have the incentive to take the risk.

Even though the bill doesn’t allow visa holders to work for any company other than their own, I have no doubt that the anti-immigrants will rally against it. They always do, regardless of what is good for the country and of what is good for them. They fear competition and will make claims that these startups will, somehow, take their jobs away.

But the fact is that skilled immigrants create jobs; and recipients of the startup visa will not be allowed to stay in the U.S. permanently unless they do. Right now, these job creators have no choice but to take their ideas and savings home with them and become our competitors. This legislation allows them to create the jobs here.

A lot of hard work has gone into this bill, over the last two years, by tech notables Brad Feld, Eric Ries, Dave McClure, Manu Kumar, Shervin Pishevar, Fred Wilson, and Paul Kedrosky. This group is launching a campaign to gain the bill political support. It is using social-lobbying tools powered by Votizen to take tweets, Facebook posts, and SMS messages and hand-deliver them to Congress. The Startup Visa website details how you can get involved and help the bill to succeed. Now it is your turn to speak up and help us revitalize the economy.

Editor’s note: Vivek Wadhwa is an entrepreneur turned academic. He is a Visiting Scholar at UC-Berkeley, Senior Research Associate at Harvard Law School, Director of Research at the Center for Entrepreneurship and Research Commercialization at Duke University, and Distinguished Visiting Scholar at The Halle Institute for Global Learning at Emory University. You can follow him on Twitter at @vwadhwa and find his research at www.wadhwa.com.

EB3 to EB2 Porting Calculations - Part II

We have completed our analysis to calculate EB3 to EB2 porting which is shared herein. Google analytics and 'EB3 to EB2 porting' poll on this website were used to crunch some numbers for yearly EB3 to EB2 porting. Please note as mentioned in my previous post, this site has three posts which could be of interest to individuals looking to port from EB3 to EB2 category.

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Google Analytics

With Google Analytics, we looked at each of these topics and noted number of "unique visits" we had receive every day. Unique visits with direct traffic from Google search were ONLY considered. Please see table below to see number of visits. Any visits referred from other forums and websites were ignored. This way any error in the method to calculate EB3 to EB2 porting is offset by number of ignored visits from other sites. If we assume that only 70% of these individuals are eligible or would qualify to port their priority date, we can assume total monthly and subsequently total yearly EB3 to EB2 porting.

EB3 to EB2 Porting Polls

Result from EB3 to EB2 porting polls was further used to calculate distribution of yearly porting among different priority date based on poll results. This is an ongoing effort but so far we have received 115 votes; which is believed to be a good sample size to evaluate distribution of current EB3 to EB2 porting rate. Further breakdown is done to predict monthly porting between PD Jan 2006 and PD Dec 2007. This results will be of interest for current fiscal year when unused visa numbers will be available due to spillover and for next fiscal year especially when this demand will hit I-485 inventory or would start using annual visa numbers once date will become current for these PDs. Moving EB3 to EB2 porting is also calculated. See table below. For every primary applicant, family size is considered to be 2.25 to calculate Porting (Primary + Dependents)


Poll Results

Note: This is just one way to analyze this data. If you have any other better way please feel to comment or contact us and we can add your analysis to this site as well. Our goal is to help immigrant community.

Pageviews and Unique PageViews based on three posts used to calculate EB3 to Eb2 porting

Admission Application Tracker - For Graduate and Undergraduate Students

We have released new admission application tracker for graduates and undergraduates. Please use this tracker to enter details of your application to schools and universities in US. Please fill in as much details as possible and edit the tracker as and when you will get more information on your application status. Use this tracker also to see what score would you get you into which schools.

Please see "Undergraduate and Graduate Admissions Application Tracker"

Visa Bulletin - April 2011

April 2011 Visa Bulletin was released today. Little movement for Family-Based categories. We expect more retrogression for Family-Based F-1 and F-2A category in coming months. For Employment-Based category, EB-3 overall saw some movement in cut-off dates for each country. EB2 is current for all other countries except India and China. EB2-India did not see any movement. EB2-China progressed to 22 July 2006. EB1, EB4 and EB5 are still current.

Family-Based

Family 1st – retrogressed for most countries;

Family 2A – most countries advanced to April 2007; Mexico advanced to July 2006.

Family 2B – world numbers stalled at April 2003; Mexico saw no movement and Philippines advances to December 1999.

Family 3rd – most countries advanced to March 2001; Philippines advances by nine months to Novemeber 1992; Mexico retrogresses advances to 08 November 1992.

Family 4th – most countries stalled at January or February 2000; Philippines stalled at 08 March 1988; Mexico advances three weeks to February 1996.

RETROGRESSION OF FAMILY PREFERENCE CUT-OFF DATES

Continued heavy applicant demand for numbers in the Family First (F1) preference category has required the retrogression of the Worldwide, China-mainland born, and India cut-off date for the month of April.

Further retrogressions cannot be ruled out should demand continue at the current levels for some categories and countries.

Employment-Based

Employment 1st – still current in all categories

Employment 2nd – no movement for India; two week improvement for China (22July 2006) and still stalled for India (8 May 2006).

Employment 3rd – Eb3 saw overall movement for each country and category

Employment 4th – still current in all categories

Employment 5th – still current in all categories

Diversity Visa Scams - Sample Email Attached

I received this email today saying that I have been selected for DV program. Please be aware that this is a scam that is going on all over the internet. Please see sample e-mail below that I received in the email.

Fraudsters will frequently e-mail potential victims posing as State Department or other government officials with requests to wire or transfer money online as part of a “processing fee.” You should never transfer money to anyone who e-mails you claiming that you have won the Diversity Visa (DV) lottery or been selected for a Green Card.

These e-mails are designed to steal money from unsuspecting victims. The senders often use phony e-mail addresses and logos designed to make them look more like official government correspondence. One easy way to tell they are a fraud is that the e-mail address does not end with a “.gov”.

Be Aware of Diversity Visa Scams

Individuals have contacted U.S. Citizenship and Immigration Services (USCIS) about fraudulent e-mails and letters saying they have been selected in the Diversity Visa program. The scammers pose as the U.S. government in an attempt to get money from people hoping to get a visa.

U.S. Department of State runs the Diversity Visa Program and has excellent information on how to protect yourself against these scammers. To educate yourself about the Diversity Visa program visit the Department of State website. For information on avoiding other types of immigration scams, visit our Don't be a Victim webpage.

See this Blog

Sample Scam Letter- Beware--_US_Department_of_State_-_United_States_Permanent_Resident_Card_for_xxxxxxx

Demand Data used to determine April 2011 Visa Bulletin released

Demand Data used to calculate priority date cut-off for April 2011 Visa Bulletin has been released. Demand for visa numbers for most category and country has reduced from March 2011 to April 2011. We expect to see movement in April visa bulletin for all categories except EB2-India. Demand for EB2-India has increased in April Demand Data by 25. This is due to heavy EB3 to EB2 porting.

April 2011 Demand Data


March 2011 Demand Data

Temporary Government Shutdown and Its Affect on Visa Processing

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

Temporary Government Shutdown: How Immigration Might be Affected

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

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

Background: Disagreement Over Funding Levels

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

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

History of Government Shutdowns

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

Not a Complete Shutdown: Services that Must Remain Open

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

Impact on USCIS and Other Immigration Applications / Petitions

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

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

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

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

Read More at Murthy.Com

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

America's visa restrictions lead to reverse brain drain

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

No new H or L visa appointments will be made at the Mumbai Consulate

Partial Reduction in Visa Operations at U.S. Consulate, Mumbai

March 3, 2011

The U.S is committed to facilitating the visa interview process throughout India. We are constructing a new Consulate for Mumbai. The new multi-million dollar Mumbai Consulate facility is scheduled to open later this year.

Unfortunately, the current Mumbai Consulate building’s aging infrastructure has forced us to close several of the interview windows in Mumbai, limiting the number of applicants that can be accommodated at a given time.

If you have already scheduled an H or L visa interview appointment at the Mumbai Consulate, you may keep that interview time. No new H or L visa appointments will be made at the Mumbai Consulate. New H and L interviews may be scheduled at the other U.S. Consulates in India or the Embassy in New Delhi.

Appointments will be scheduled via VFS at https://www.vfs-usa.co.in/USIndia/Index.html. Appointment times can be found on the VFS website.

April 2011 Visa Bulletin Predictions - EB Category

April 2011 Visa Bulletin will be out soon. Here is the prediction for April 2011 Visa Bulletin. We should see following movements in each category as long as USCIS/DOL would use visa numbers for each category as per statutory allocations.

Predictions

• EB3- China could advance to 15 April 2004
  
• EB3-Philippines could advance to 01 August 2005. (Correction : EB3 - Philippines would advance to 22 July 2005. At no point retrogressed country can have Priority Date beyond EB3- ROW)
  

• EB3-Mexico could advance to 22 February 2004.
  
• EB3-ROW could advance to 22 July 2005.
  
• EB2 will be current for ROW, Mexico and Philippines.
  
• EB3-India could advance to 01 April 2002.
• EB2-India would not see any movement.
  
• EB2-China could advance to 15 Jul 2006.

H1B FY 2012 Will Not Require Online Preregistration of Employers to File H-1B Cap Petitions

As per recent press release by USCIS, it seems like H1B Pre-registration rule will not be effective until March 2012. So individuals planning to apply for H1B-FY 2012 should not worry about this at this time. Please read press release and FAQ on the rule below. The proposed rule was posted to the Federal Register today for public viewing. USCIS encourages formal comments on the proposed rule through www.regulations.gov. The comment period runs for 60 days, beginning March 3, 2011, and ending May 2, 2011.

USCIS Announces Proposed H-1B Electronic Registration System to Reduce Costs for U.S. Businesses

March 2, 2011

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) is publishing tomorrow a proposed rule that could save U.S. businesses more than $23 million over the next 10 years by establishing an advance registration process for U.S. employers seeking to file H-1B petitions for foreign workers in specialty occupations. The proposed electronic system would minimize administrative burdens and expenses related to the H-1B petition process—including reducing the need for employers to submit petitions for which visas would not be available under the statutory visa cap.

USCIS Director Alejandro Mayorkas today announced the opening of a 60-day comment period that will allow businesses and the general public to provide input on the proposed system in order to ensure it best meets the needs of employers that rely on H-1B visas to bring in foreign workers for specialty occupations.

“The proposed rule would create a more efficient and cost-effective process for businesses interested in bringing workers in specialty occupations to the United States,” he said. “Improving the H-1B petition process is part of USCIS’s ongoing efforts to leverage new ideas and innovation to streamline our operations and enhance customer service.”

Under the proposed rule, employers seeking to petition for H-1B workers subject to the statutory cap would register electronically with USCIS—a process that would take an estimated 30 minutes to complete. Before the petition filing period begins, USCIS would select the number of registrations predicted to exhaust all available visas. Employers would then file petitions only for the selected registrations. The registration system would save employers the effort and expense of filing H-1B petitions, as well as Labor Condition Applications, for workers who would be unable to obtain visas under the statutory cap.

The proposed rule, which posted to the Federal Register today for public viewing, contains complete details about the registration system and estimated cost savings. USCIS encourages formal comments on the proposed rule through www.regulations.gov. The comment period runs for 60 days, beginning March 3, 2011, and ending on May 2, 2011.

For more information on the proposed H-1B rule, please see the accompanying Fact Sheet. For more information on USCIS and its programs, visit www.uscis.gov.

USCIS Seeks Public Comment on Proposed H-1B Registration System Fact Sheet

March 2, 2011

Advance Registration Process Would Reduce Costs for U.S. Businesses

Introduction

U.S. Citizenship and Immigration Services (USCIS) is seeking public comment on a proposed rule that could save U.S. businesses more than $23 million over the next 10 years, according to USCIS estimates. This proposed rule would establish an electronic registration process for U.S. employers seeking to file H-1B petitions for foreign workers in specialty occupations. The proposed electronic system would minimize administrative burdens and expenses related to the H-1B petition process—including reducing the need for employers to submit petitions for which visas would not be available under the statutory visa cap.

The proposed rule was posted to the Federal Register today for public viewing. USCIS encourages formal comments on the proposed rule through www.regulations.gov. The comment period runs for 60 days, beginning March 3, 2011, and ending May 2, 2011.

Background

The H-1B is a non-immigrant visa which allows U.S. employers to temporarily employ foreign workers in specialty occupations. USCIS proposes to establish an advance, electronic registration process for U.S. employers seeking to file H-1B petitions 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.

Under the proposed rule, USCIS would establish an advance registration system. USCIS would inform the public of the registration process for any given year on its website at www.uscis.gov. The proposed advance registration process would require employers seeking to petition for H-1B workers subject to the statutory visa cap to simply register electronically with USCIS—a process that would only take 30 minutes to complete. Before the petition filing period begins, USCIS would select the number of registrations estimated to exhaust all available visas. Employers would then file petitions only for the selected registrations. The registration system would save employers the currently imposed effort and expense of submitting H-1B petitions, as well as Labor Condition Applications (LCA), for workers who would be unable to obtain visas under the statutory cap.

Questions & Answers

Q1. Why is USCIS proposing a change to the H-1B filing process?
A1. This rule reflects the Obama administration’s commitment to smart, tough and effective strategies that leverage the U.S. immigration system to the greatest benefit of immigrants and businesses. The proposed registration system would save employers the effort and expense of submitting full H-1B petitions, as well as LCAs, for prospective employees who will not be able to obtain visas under the statutory cap.

The current process requires U.S. employers to first obtain an LCA from the U.S. Department of Labor. Upon certification of the LCA, the employer may then file an H-1B petition with USCIS on Form I-129 (Petition for an Alien Worker). USCIS may only accept the properly filed H-1B petition if the statutory cap has not been reached.

Q2. Will the proposed advance registration process go into effect right away?
A2. No. Publication of the proposed rule is only the beginning of the regulatory process where USCIS announces its proposal and solicits public comments on that proposal. This proposed rule provides for a 60-day public comment period, which will allow businesses and the general public to provide input on the proposed system in order to ensure it best meets the needs of employers that rely on H-1B visas to bring in foreign workers for specialty occupations. After receipt and analysis of the comments, USCIS will draft a final rule. The registration process would only become effective after the final rule is published.

Q3. How would this advance registration impact the processing time for H-1B petitions?
A3. This proposed rule would not impact the processing times for Form I-129, once an H-1B petition has been accepted for adjudication.

Q4. What is the estimated financial impact of this proposed rule for businesses?
A4. USCIS prepared an economic assessment of the benefits and costs anticipated to occur as a result of this rule, and we estimate that the net savings for H-1B petitioners would be more than $23 million over the next 10 years.

Q5. When could USCIS use this advance registration process?
A5. This electronic registration system will not go into effect until a final rule is published and becomes effective. If a final version of the rule is published by January 2012, USCIS could implement the proposed registration system for the fiscal year 2013 H-1B season, which opens in April 2012.

Q6. How may I provide comments on the proposed registration process?
A6. To comment on the proposed rule, members of the public can submit written comments by using any one of the following methods:

• Federal Rulemaking Portal: www.regulations.gov. Follow the instructions for submitting comments.
• E-mail: rfs.regs@dhs.gov. Please include DHS Docket No. USCIS-2008-0014 in the subject line of the message.
• Mail: Chief, Regulatory Products Division, U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW, Washington, DC 20529-2020. To ensure proper handling, please reference DHS Docket No. USCIS-2008-0014 on your correspondence. This mailing address may also be used for paper, disk, or CD-ROM submissions.
• Hand Delivery/Courier: U.S. Citizenship and Immigration Services, Department of Homeland Security, 20 Massachusetts Avenue, NW, Washington, DC 20529. Contact telephone number: 1-202-272-8377.

Source: www.uscis.gov

USCIS released I-140 Statistics for EB1 (EB1-A and EB1-B) Category

USCIS yesterday released Approval and Denial Statistics for I-140 for EB1 Category for fiscal years 2005 to 2010. USCIS release specifically points that released statistical data for I-140 is for E-11 and E-12 category. As per DHS, definition for E11 and E12 is "Aliens with extraordinary ability, new arrivals (E11)" and "Outstanding professors or researchers, new arrivals (E12)". New arrivals are usually individuals who has applied from outside the US or CP cases (physically residing outside US), whereas Adjustments are individuals who are currently present in the US in a non-immigrant category adjusting to a immigrant status to receive permanent residence. Since E11 and E12 includes data released for new arrivals it should not include AOS numbers. But this does not look right when you compare USCIS released data and DHS released data on FY 2009 I-485 Visa Number Use as per Class of Admissions. We can see that the numbers are very close when recent released data is viewed in terms of AOS + new arrival. As far as I think, USCIS data does include AOS applicants as well. as new arrivals Please note that I-140 data would only include primary applicants i.e. E11, E16, E12 and E17

DHS Vocabulary on Class of Admissions

Aliens with extraordinary ability, new arrivals (E11)

Aliens with extraordinary ability, adjustments (E16)

Outstanding professors or researchers, new arrivals (E12)

Outstanding professors or researchers, adjustments (E17)

Multinational executives or managers, new arrivals (E13)

Multinational executives or managers, adjustments (E18)

Fiscal Year 2009 Data

Type and class of admission --------------------------Total----AOS-- New Arrivals

Aliens with extraordinary ability, new arrivals (E11)---------308 -----NA------- 308

Aliens with extraordinary ability, adjustments (E16) --------3,134- - 3,134 ------NA

Outstanding professors or researchers, new arrivals (E12) ---20------NA------- 20

Outstanding professors or researchers, adjustments (E17)-- 3,412--- 3,412------NA

Multinational executives or managers, new arrivals (E13)---- 214 ----NA------ 214

Multinational executives or managers, adjustments (E18) ---9,718 ---9,718-----NA

FY 2009 I-485 Visa Number Use as per Class of Admissions


Approval and Denial Statistics for I-140, Immigrant Petition for Alien Workers

Can one initiate H1B Transfer after Visa and I-94 has expired when H1B Extension is Pending with USCIS?

If one’s H1B and I-94 has expired and his/her current employer has filed an extension which is pending with USCIS, can one change his/her employer?

Can one initiate H1B transfer when a H1B extension is pending with USCIS?

Different people interpret this in a different way. There is no defined statutory rule about this. This is gray area and solely depends upon discretion of an USCIS official. Your case could be argued in many ways.

a) Since you have filed an extension, your presence in US is legal and hence starting a new transfer should not be a problem. As long as your extension is not revoked or withdrawn by your current employer and you can get your H1B transfer approved before it is withdrawn, you should be fine. In such scenario please ask your new employer to process your H1B transfer case in Premium Processing and do not resign from current employer before your transfer case is approved. It will be wise to stay put.

b) Some officials could argue that since you were assumed to be in legal status based on H1B extension filing, and successive withdrawal of a H1B extension before approval after leaving your current company (even if H1B transfer case was approved before extension withdrawal) makes your presence after your I-94 expiry unlawful in US and hence H1B transfer should be void. You should leave the country immediately.

c) In other cases, officials could cancel your extension and just award you H1B transfer based on Consular processing. In this case you have to go outside the country to get your H1B stamped before you can start working for new employer.

d) Even if your H1B transfer is approved without any hiccups before extension is approved, there is always a chance that question on your legal presence in country could come up during I-485 interview or an approval.

Some of the approaches you can take are

• Do premium processing in both cases. (Start transfer after Extension approval),
• Do premium processing for the H1 extension and then after approval of which you can start a normal H1 transfer. You can start working on receiving I-797 receipt
  
• Wait until Extension is approved before starting Transfer.

Best approach in this scenario would be to wait till the extension is approved and then start a H1B transfer. In any case please talk to a lawyer before taking any action as this clause is interpreted differently depending on the facts of the case.

Senator Hatch wants White House to seek H-1B expansion

Treasury secretary says he agrees with Hatch on need to increase H-1B visa program

Computerworld - WASHINGTON -- U.S. Sen. Orrin Hatch (R-Utah) berated the White House on Wednesday for failing to urge expansion of the H-1B program.

Hatch, the ranking member of the Senate Committee on Finance, raised his concern at a committee hearing on President Obama's proposed 2012 federal budget. U.S. Treasury Secretary Timothy Geithner was its sole witness.

One of the things that would "help our country a great deal is to expand the H-1B and allow these Ph.D.s who are educated here who want to stay here, who are brilliant, who can help us in the high-tech world and other worlds, to stay here," Hatch told Geithner.

"It's ridiculous that the administration doesn't weigh in on [H-1B], and I know why they don't -- but it's ridiculous not to," Hatch said, "And we've now created real competitors in India and China, just to mention two places, but others as well. "

In China, but especially in India, the H-1B visa is critical to offshore outsourcing companies in providing overseas services. These companies were critical of the Senate last year for approving a $2,000 visa fee increase specifically aimed at them. U.S. Sen. Charles Schumer (D-N.Y.), who sought the fee increase, said the H-1B program has created "multinational temp agencies."

"We are not doing things that we really ought to do to get competitive," Hatch said. "Weigh in on this H-1B thing. That would help us a great deal."

In response, Geithner said, "I agree with you on H-1B, by the way. It's just a question about how best to do it."

Hatch quickly answered, "Expand it."

The U.S. issues 85,000 H-1B visas each year, of which 20,000 are reserved for advanced-degree graduates of U.S. universities.

The Obama administration has said little about the H-1B program specifically, but in his State of the Union address last month, he urged an easier path to immigration for foreign students who graduate with advanced degrees from U.S. institutions.

Legislation to accomplish that may soon emerge from U.S. Rep. Zoe Lofgren (D-Calif.). Lofgren drafted a proposal that would create a new employment-based permanent residency, or green card, category for advanced-degree graduates. It would bypass the need for an H-1B visa.

Two other senators, Dick Durbin (D-Ill.) and Charles Grassley (R-Iowa), want to limit the number of H-1B or L-1 visas to 50% of a company's U.S. workforce, the so-called 50/50 rule.

Patrick Thibodeau covers SaaS and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov or subscribe to Patrick's RSS feed . His e-mail address is pthibodeau@computerworld.com.