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As of November 14, 2011, USCIS has received approximately 56,300 H-1B petitions subject to the FY 2012 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS has received 20,000 H-1B petitions subject to the FY 2012 US master’s degree cap, of which there are 20,000 visas each fiscal year.  When the master’s cap is reached, USCIS has stated that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap.  These numbers are starting to move very quickly and it appears that the cap will be reached by the end of the year.  

Once these numbers are exhausted, then new petitions subject to the cap can be filed as early as April 1, 2012, requesting a start date of October 1, 2012.

The fiance visa petition processing should be relatively quick. In the golden days (if there is such a thing in the world of immigration law), I could get a fiance visa petition approval within several months. Now it has slowed down to approximately six months, and this is just for the first stage when USCIS must adjudicate the petition. Then there’s no saying how long the National Visa Center could take to start the visa processing and send the case to the US Consulate. For most cases it can be be three to six months on average depending on the luck the beneficiary has with his or her background check. If there is a problem with the background check, and your client happens to share the same name as some unsavory character whom the US government has found to be a threat to our nation’s security, then all bets are off and the US Department of State becomes like “big brother.” There is absolutely no way to expedite the matter or get more definitive information on the delay.

So what is the silver lining to all this? Maybe it’s a true test of the relationship – for anyone who could maintain a long distance relationship with no guarantee of success must be pretty committed. Although the real challenge is maintaining a long relationship with little space from one’s partner!

As of October 14, 2011, USCIS has received approximately 43,300 H-1B petitions subject to the FY 2012 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS has received 19,600 H-1B petitions subject to the FY 2012 US master’s degree cap, of which there are 20,000 visas each fiscal year. If the master’s cap is reached, USCIS has stated that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap. These numbers are still moving very slowly and it appears that the cap may not be reached until the end of this year or even later, since the numbers moved by only 1,000 for the bachelor’s cap in one week.

Once these numbers are exhausted, then new petitions subject to the cap can be filed as early as April 1, 2012, requesting a start date of October 1, 2012.

As of July 5, 2011, USCIS has received approximately 20,500 H-1B petitions subject to the FY 2012 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS has received 12,800 H-1B petitions subject to the FY 2012 US master’s degree cap, of which there are 20,000 visas each fiscal year. If the master’s cap is reached, USCIS has stated that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap. These numbers are still moving very slowly and it appears that the cap may not be reached until the end of this year or even later, since the numbers moved by only 1,000 for the bachelor’s cap in one week.

Once these numbers are exhausted, then new petitions subject to the cap can be filed as early as April 1, 2012, requesting a start date of October 1, 2012.

US Senator Robert Menendez (D-NJ) has introduced the Military Families Act, a welcome piece of legislation that would grant legal permanent residency to immediate family members of active military service members. Under the Act, US DHS could adjust the status to legal permanent residency of a spouse, child, son or daughter (unmarried child over 18) of an Armed Forces member who is serving or who has actively served honorably in active-duty in the military, air or naval US forces, or the immediate relative of an Armed Forces member who died as a result of an injury or disease incurred in the military after September 11, 2001.

As of May 26, 2011, USCIS has received approximately 13,100 H-1B petitions subject to the FY 2012 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS has received 9,000 H-1B petitions subject to the FY 2012 US master’s degree cap, of which there are 20,000 visas each fiscal year. If the master’s cap is reached, USCIS has stated that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap. These numbers are still moving very slowly and it appears that the cap may not be reached until the end of this year or even later, since the numbers moved by only 1,000 for the bachelor’s cap in one week. Once these numbers are exhausted, then new petitions subject to the cap can be filed as early as April 1, 2012, requesting a start date of October 1, 2012.

US Immigration and Customs Enforcement (ICE) has published an expanded list of science, technology, engineering and math (STEM) degree programs that qualify F-1 Optional Practical Training (OPT) students to extend their OPT for another 17 months. Under the OPT program, foreign graduates may obtain up to one year of post-graduation work authorization in the US for up to 12 months, and if they qualify under the STEM program and their employers participate in E-Verify, then they may apply for an additional 17-month period. This STEM extension was instituted to address shortages of talented foreign students in the STEM fields in the US. The expanded list includes fields such as Neuroscience, Medical Informatics, Pharmaceutics and Drug Design.

The US Department of State (DOS) has voided the results of the 2012 Diversity Visa Lottery that were previously posted on its website. The results were invalid because they did not represent a “fair, random selection of entrants, as required by US law” according to the DOS. The DOS will run a new selection process and the results will be published on or about July 15, 2011. No new applications need be submitted or will be accepted, since the DOS will use all qualified entries received during the October 5 to November 3, 2010 registration period.

As of May 13, 2011, USCIS has received approximately 11,200 H-1B petitions subject to the FY 2012 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS has received 7,900 H-1B petitions subject to the FY 2012 US master’s degree cap, of which there are 20,000 visas each fiscal year. If the master’s cap is reached, USCIS has stated that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap. These numbers are still moving very slowly and it appears that the cap may not be reached until the end of this year or even later, since the numbers moved by only 1,000 for the bachelor’s cap in one week.

Once these numbers are exhausted, then new petitions subject to the cap can be filed as early as April 1, 2012, requesting a start date of October 1, 2012.

In Take Solutions, Inc., 2010-PER-00907 (April 28, 2011), BALCA found that where the employer receives two different prevailing wage determinations (PWD) for the same position based on its primary and alternative minimum requirements, it must use the higher of the two. In this case, the employer filed a Form ETA 9089 PERM labor certification application with the primary requirements a bachelor’s degree and five years of experience and its alternative minimum requirements a master’s degree plus one year of experience. The employer had obtained two different PWDs for the same position. On the Form ETA 9089 PERM labor certification application, it referred to the lower PWD based on the master’s and one year of experience (given skill level 2). In response to an audit, the employer provided the higher PWD based on a bachelor’s degree plus five years of experience (based on skill level 4). The CO denied the PERM application stating that the PWD provided by the employer did not match the PWD noted on the PERM application. The employer filed a motion for reconsideration along with the PWD noted on the Form ETA 9089, which was a lower PWD and based on the alternative minimum requirements of a master’s degree plus one year of experience. The CO denied the motion because the PWD referred to in the PERM application did not match the PWD provided on audit and the CO did not consider the PWD provided by the employer on reconsideration.

BALCA held that where the employer receives two different PWDs and provides such evidence that it must use the higher PWD. BALCA reasoned that this was to protect the wages of US workers, since if the employer paid the lower wage, based on the alternative minimum requirements of a master’s plus one, to workers with a bachelor’s plus five years of experience, it would have an adverse affect on these workers by underpaying them. BALCA also held that its decision was compelled by the fact that the PERM regulations require that the job application be clearly held open to the broadest possible minimally qualified applicant pool.