USCIS Updates H-1B Count as of November 18th

November 20th, 2009

As of November 13, 2009, USCIS has received approximately 55,600 H-1B petitions subject to the FY 2010 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS states that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap. 

Employers can continue to file H-1B petitions for a start date before October 1, 2010, so long as H-1B numbers are available.  However, the start cannot be more than six months in advance of the date of preparation on the Form ETA 9035 Labor Condition Application (LCA), which is filed with the Department of Labor.  The employer may now file an uncertified LCA with USCIS in support of the H-1B petition and USCIS will send out a request for additional evidence for the certified LCA.  The H-1B petition can be filed no earlier than seven days after the LCA was submitted.  This policy will last until March 4, 2010.  Currently, the DOL is taking seven days to certify an LCA, unless it requests evidence verifying the employer’s information.  DOL has been denying many LCAs based on its inability to verify the employer’s FEIN.  This can delay the certification another two weeks.  USCIS has acted reasonably in waiving the LCA certification as one of the requirements in light of DOL’s unreasonable delays (it has admitted bugs in its system).  However, USCIS should allow the employer to file the H-1B petition as soon as the LCA is filed in light of the looming H-1B cap.

USCIS Updates H-1B Count as of October 25, 2009

November 3rd, 2009

As of October 25, 2009, USCIS has received approximately 52,800 H-1B petitions subject to the FY 2010 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS states that any petitions filed on behalf of aliens with an advanced US degree will be counted toward the general 65,000 H-1B cap. 

Employers can continue to file H-1B petitions for a start date before October 1, 2010, so long as H-1B numbers are available.  However, the start cannot be more than six months in advance of the date of preparation on the Form ETA 9035 Labor Condition Application (LCA), which is filed with the Department of Labor.  The employer must file a certified LCA in support of the H-1B petition with USCIS.  Currently, the DOL is taking 7 days to certify an LCA, unless it requests evidence verifying the employer’s information. 

H-1Bs and Self-Employment – Why Not?

November 2nd, 2009

This year, USCIS, and in particular, the Vermont Service Center (VSC), has been denying hitherto approvable H-1B petitions for single-member limited liability corporations (LLCs) where the beneficiary is the sole member of the LLC.  In the past, USCIS had found that the LLC was a legally distinct entity that could sponsor the beneficiary for professional employment (Matter of Aphrodite, Matter of X) and defined the requisite employer-employee relationship more liberally.  However, following a new dangerous and wrong-headed trend, the VSC is now strictly defining an employer-employee relationship as one where the employer may hire, fire, supervise or otherwise control the employee. 

While it should be acknowledged that the treatment of single-member LLC as a true traditional employer-employee relationship was a stretch, it was rational and beneficial to the US economy.  There is no reason that there should be a prohibition against self-employment for H-1B petitions.  So long as the beneficiary is working in a professional position for a genuine company and paying herself the prevailing wage, why should she not be able to contribute to our economy and generate jobs?  Some may argue that there is an E-2 treaty investor visa for that, but there are formidable restrictions to obtaining an E-2 visa, including being a foreign national of country that has a qualifying treaty with the US (India has no such treaty) and requiring a significant initial investment.

US immigration law needs a wholesale revision to make the US competitive in this precarious global economy.  Why not start with eliminating the bar to self-employment for H-1B petitions?