Extraordinary Ability Petition Approved

December 28th, 2009

I just had an O-1 extraordinary ability petition approved in record time – a little under 2 weeks – without premium processing!  It was great news and a needed counterbalance against recent news that the H-1B cap had been reached for FY 2010. 

Let’s see how quickly next year’s H-1B numbers go – I wager that the cap will not be reached on April 1, 2010.  If the economy is taking that long to heat up and create jobs, and the most recent rate of H-1B usage was approximatly 4,500 per month, then in the next three months the pent-up demand would round out to about 15,000.  Let’s estimate up a bit to 20,000 and there will still probably be visa numbers around for the early Spring. 

O-1 Extraordinary Ability Petition Approved in Record Time

December 23rd, 2009

The downturn in the economy has brought some wonderful gems, such as relatively quick processing of petitions.  My H-1B practice has seen H-1B petitions approved in as little as two weeks with no premium processing.  Most recently I filed an O-1 petition for an alien of extraordinary ability and it was approved within several weeks without premium processing.  Usually the H-1Bs or O-1s take at least several months. 

With the economy picking up speed, I guess we need to anticipate slower processing times.  It’s too bad that it can’t be a win-win situation in immigration land.

USCIS Reaches FY 2010 H-1B Cap

December 23rd, 2009

USCIS announced that as of December 21, 2009, it received enough H-1B petitions to reach the fiscal year 2010 cap.  All petitions received on that date will be subject to a computerized random lottery to select enough petitions to meet the cap. 

USCIS will continue to accept H-1B petitions not subject to the cap, such as extensions of H-1B status, changes of employer, concurrent H-1B employment and petitions for cap-exempt institutions.  For all other H-1B petitions, the earliest that they can be filed is April 1, 2010, and the earliest start date is October 1, 2010. 

It will be interesting to see how many H-1B petitions are filed during the first week of April 2010.  If the economy is expected to grow as slowly as they are predicting, then the H-1B cap will most likely not be reached within the first week.  If the economy heats up more quickly, then we will be stuck with the irrational lottery once again.  Now is the time to rid of the cap and let US employers determine how many H-1Bs they need.

USCIS Q&A on H-1B Petitions Filed Without Certified LCAs

December 10th, 2009

In a Q&A dated December 8, 2009, on its website, U.S. Citizenship and Immigration Services (USCIS) announced that it has extended the filing period of H-1B petitions without Labor Condition Applications (LCAs) that have been certified by the U.S. Department of Labor (DOL).  The effective dates are Nov. 5, 2009 through Mar. 9, 2010.  At this time, USCIS is only providing temporary relief to deal with the Department of Labor’s (DOL) problems with its iCERT System. 

What is most troubling about its guidance is that it has stated that it will not accept H-1B petitions filed without a certified LCA where the DOL denied the original LCA because it could not find the employer’s valid Federal Employer Identification Number (FEIN).  In the case of an FEIN denial, after the employer files its initial LCA, the DOL sends an e-mail to the employer stating that the LCA was denied because DOL could not verify the employer’s FEIN.  Then, the DOL asks the employer to submit evidence that the FEIN is valid.  After it validates the FEIN, which can take one week, the employer must refile the LCA and wait seven more days for a certification.
USCIS is now stating that it will not accept H-1B petitions where the DOL denied the first LCA because of lack of FEIN verification, even when the original LCA was filed more than seven days prior to the filing of the H-1B petition (the guidance states that the LCA must have been filed at least seven days prior to filing the H-1B petition without the certified LCA).  Instead, the employer must wait for FEIN verification, refile the LCA and wait seven more days before filing the H-1B petition. 
This is outrageously unfair in light of the employer’s lack of culpability and the impending attainment of the H-1B cap.  If employers do not file their H-1B petitions soon, their petitions will be rejected and they will have to wait until April 2010 to refile for a start date of October 2010.  USCIS should accept H-1B petitions without a certified LCA where the employer can document that it filed the first LCA more than seven days before the filing of the H-1B petition and that LCA was denied because of the DOL’s faulty iCERT system and inability to verify the employer’s valid FEIN.
USCIS does state that it “will review the totality of the circumstances to determine whether it can exercise discretion and excuse the late filing if the petitioner submits evidence to establish that the reason for the failure to timely file an extension of stay or change of status H-1B petition was due to the erroneous denial of an LCA.”  This does not help petitioners whose H-1B petitions are subject to the H-1B cap.

USCIS Updates H-1B Count as of 12/4/09

December 10th, 2009

As of December 4, 2009, USCIS has received approximately 61,100 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.