The 2012 H-1B Season is Upon Us . . . Will This Year's Economy Bring a Lottery? At this juncture, it does not seem likely. However, as the statistics from last year show, planning for the H-1B is the key to being able to continue your authorized work status in the U.S. It need not be said, but it is always best to seek competent immigration legal counsel to be able to find a way to legally remain in authorized work status in the U.S.
Yes, it is that time of year again! We always hear the accountants moan and groan about the approaching April 15th deadline each year, but you have to listen a bit more closely and you will hear (and see) the U.S. business immigration lawyers and attorneys manifesting their continuing distaste for the April 1st filing date for cap-subject H-1B professional and specialty occupation workers. Well, here we go again . . .
April 1st, 2012 marks the first day when prospective H-1B petitioning employers and prospective H-1B employees will be able to apply to the U.S. Department of Labor (DOL) for Labor Condition Application (LCA) and H-1B visa petitions to the U.S. Citizenship and Immigration Services (CIS) for employment in the fiscal 2012-2013 year (FY 2012). Our advice to our H-1B employer clients continues to be that they need to think about filing H-1B petitions on (or very close to) April 1st for new and existing employees (usually international students in Optional Practical Training [OPT]) who will be eligible for first-time H-1B visas to begin their employment on or after October 1st, 2012.
By way of background, each Fiscal Year (FY), Congress has mandated an annual cap of 65,000 H-1B visas for "professional and specialty occupation workers" who possess the equivalence of a U.S. Bachelor's Degree. There are also an additional 20,000 H-1B visas available for individuals who possess the U.S. Master's Degree or other advanced degrees from U.S. Colleges or Universities.
Some cases are not subject to the cap. It continues to be the case that H-1B visa petitions filed on behalf of current workers who have been counted previously against the H-1B visa cap are not included in the annual cap established by Congress. Additionally, pursuant to the Chile and Singapore Free Trade Agreement, 6,800 H-1B visas are available exclusively to Chile and Singapore Nationals. The Singapore/Chile numbers reduce the total allotment of H-1B visas available each fiscal year to 58,200.
For many years, our office has assisted international students who had to deal with the "cap-gap" issue. We also assist employers with E-Verify applications, so that they can offer international students who are working for them in Optional Practical Training (OPT) a 17-month STEM extension.
In 2008, there was a regulation that gave some assistance to international students in the U.S. who applied for H-1B in their OPT period. At that time, a regulation was promulgated that provided "cap-gap" relief for F-1 students with pending H-1B petitions. For example, F-1 student visa holders who received work authorization in OPT were permitted to extend the authorized period of stay and work authorization as long as they have received approved H-1B visas prior to the expiration of the OPT.
Also, many Science, Technology, Engineering, and Mathematics (STEM) students continue to use the STEM extension as a way to have the time they need to petition in the appropriate H-1B cycle. However, to get the STEM extensions, the employer needs to be enrolled in E-Verify.
For the last three (3) fiscal years, the H-1B allotment actually lasted for almost eight to nine months. This past year, the H-1B allocation lasted until the end of November. However, in some years past, the H-1B allotment was actually exhausted within three (3) days of the H-1B visas becoming available. This required the CIS to conduct a "lottery" and only one of three visas submitted was accepted for processing by the CIS. Those were scary times for individuals and companies seeking H-1Bs.
It is likely that the demand for H-1B visas this fiscal year may be greater than it was for last year. We keep hearing that "economic recovery" is on the way. For this reason, we continue to advise our H-1B employers to consider filing on April 1st, or as close to April 1st as possible.
Employers Feel the VIBE . . . Look Out For A New Validation Instrument for Business Enterprises (VIBE).
CIS announced in its several recent stakeholders' meetings that it will continue to use a new web-based tool called the Validation Instrument for Business Enterprises (VIBE). The VIBE program is purportedly designed to enhance the speed and accuracy for the adjudication of certain employment-based immigrant and nonimmigrant petitions.
The U.S. Citizenship & Immigration Services (CIS) has implemented the Validation Instrument for Business Enterprises (VIBE) Program in the process of adjudicating certain employment-based immigrant and nonimmigrant petitions, including H-1B.
The VIBE Program uses public information and previously accumulated data by third party provides to validate data about the organizations that file petitions for the temporary and permanent employment of foreign national workers in the U.S.
The VIBE Program allows CIS to electronically "ping" databases. One such database is Dun & Bradstreet (D&B). The D&B database contains information about the petitioner organization including, but not limited to:
1. Business activities, such as type of business (North American Industry Classification System code), trade payment information, and status (active or inactive);
2. Financial standing, including sales volume and credit standing;
3. Number of employees, including onsite and globally;
4. Relationships with other entities including foreign affiliates;
5. Status, for example, whether it is a single entity, branch, subsidiary, or headquarters;
6. Ownership and legal status, such as LLC, partnership or corporation;
7. Company executives;
8. Date of establishment as a business entity; and
9. Current physical address.
The idea is that a CIS adjudicator will consider the information submitted by the H-1B petitioner and also compare that information to the information that they glean from the VIBE database.
Since the VIBE database is not fully populated, it is likely that H-1B petitions will continue to be met with requests for evidence (RFEs), when the H-1B petitions are submitted to the CIS. The receipt by an employer of an RFE is likely to cause delays in processing of the H-1B (even when the cases are submitted with premium processing requests).
As an aside, the CIS also announced that it is working on an electronic registration for H-1B employers to attempt to more streamline the process and to avoid the "run on cap-subject H-1Bs" that has occurred in prior years.
The CIS announced a proposed rule that would establish a system which will allow an H-1B employer to submit an electronic registration prior to the submission of the H-1B. The idea behind the registration is that before April 1st, the CIS will be able to predict how many visas are being demanded by cap-subject H-1B employers/employees. The implementation of this system is still in its genesis.
Other important issues in the H-1B arena that employers need to know about include:
(1) that CIS announced a review of its policy on H-1B cap exemptions for nonprofit entities that are related to or affiliated with institutions of higher education (examples include teaching hospitals that are affiliated with medical schools or organizations affiliated with nonprofit colleges or universities); and
(2) that U.S. employers seeking to sponsor foreign nationals on H-1B, H-1B1 (Chile/Singapore), L-1, and O-1A visas must certify to compliance with Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR).
VISA BULLETIN FOR MARCH 2012
The following information is provided by the Visa Office regarding the cut-off dates for the month ofMarch 2012.
FAMILY PREFERENCES
F1-Family first preference: Unmarried sons and daughters over the age of 21 years of U.S. Citizens. The cut-off date has moved forward by five (5) weeks for most of the countries including India toFebruary 1, 2005.
F2A - Family second preference: Spouses and minor children, and unmarried sons and daughters of permanent residents. The cut-off date has moved forward by six (6) weeks for most of the countries including India to July 22, 2009.
F2B- Family second preference: Unmarried sons and daughters over 21 of permanent residents. The cut-off date has moved forward by four (4) weeks for most of the countries including India toNovember 15, 2003.
F3-Family third preference: Married sons and daughters of U.S. Citizens and their spouses and children. The cut-off date has moved forward by four (4) weeks for most of the countries includingIndia to January 1, 2002.
F4-Family fourth preference: Brothers and sisters of U.S. Citizens. The cut-off date has moved forward by four (4) weeks for most of the countries including India to October 8, 2000.
EMPLOYMENT PREFERENCES
EB1 - Priority Workers: The cut-off date for this category for all countries including IndiaisCURRENT.
EB2 - Advanced Degree holders: The cut-off date for this category for most countries isCURRENTand for India it has moved forward by four (4) months to May 1, 2010.
EB3 - Professional Skilled Workers: The cut-off date for this category has moved forward by three (3) weeks to March 15, 2006 for most of the countries and for India it has moved forward by one (1) week to August 22, 2002.
EB3 - Other Workers: The cut-off date for this category has moved forward by three (3) weeks toMarch 15, 2006 for most of the countries and for India it has moved forward by one (1) week toAugust 22, 2002.
EB4 (Certain Special Immigrants), EB4 (Certain Religious Workers), EB5 (Targeted Employment Areas)& EB5 (Pilot Programs) are CURRENT for all countries including INDIA.