USCIS Updates Fiscal Year 2011 H-1B Cap as of May 21, 2010

May 27th, 2010

As of May 21, 2010, USCIS has received 19,600 H-1B petitions subject to the FY 2011 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS has received 8,200 H-1B petitions subject to the FY 2011 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 number are moving quite slowly and we could have another record year where visa numbers remain available until the end of 2010, like last year’s cap, which was reached in December 2009.  However, if the economy does heat up, then these numbers should start moving more quickly. 

Employers can continue to file H-1B petitions for a start date before October 1, 2011, 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 with USCIS in support of the H-1B petition.  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 Updates Fiscal Year 2011 H-1B Cap as of April 27, 2010

May 6th, 2010

As of April 27, 2010, USCIS has received 16,500 H-1B petitions subject to the FY 2011 bachelor’s degree cap, of which there are 65,000 visas each fiscal year. Also, USCIS has received 6,900 H-1B petitions subject to the FY 2011 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 number are moving quite slowly and we could have another record year where visa numbers remain available until the end of 2010, like last year’s cap, which was reached in December 2009.  However, if the economy does heat up, then these numbers should start moving more quickly. 

Employers can continue to file H-1B petitions for a start date before October 1, 2011, 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 with USCIS in support of the H-1B petition.  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. 

Federal Defense of Marriage Act to be Challenged!

May 6th, 2010

For the first time, a serious challenge has been leveled against the Federal Defense of Marriage Act (DOMA) through a lawsuit filed in the federal court in Boston, MA.  The plaintiffs consist of a group of same-sex married couples who are now demanding equal rights under the federal law.  The essence of their argument is that the federal government’s ability to ignore some and recognize other marriage certificates violates the Equal Protection Clause of the US Constitution as discriminatory.  The plaintiffs may have a strong case, since the federal government has never before discriminated against certain types of marriages under the domain of the states, deferring to the conflict of laws and states’ rights.

If DOMA is found unconstitutional, this would mean that a foreign national could now secure legal permanent residency based on marriage to someone of the same gender so long as the marriage was valid where it occurred.  This would be no small revolution in US immigration law and would finally bring about fairness, compassion and rationality to same-sex couples.