As of June 18, 2010, USCIS has received 22,900 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 9,700 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 numbers are still moving very slowly and it appears that we may have another year where the cap will not be reached until the end of this year or even later.

USCIS has received 22,200 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 9,400 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 numbers 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.  For example, since May 21, 2010, the bachelor’s cap numbers have only progressed by a little over 5,000 and the master’s cap have increased by approximately 3,000.  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.    

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.    

As of April 22, 2010, USCIS has received 16,025 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 6,739 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.  

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 announced that it will start accepting H-1B visa petition subject to the H-1B cap for Fiscal Year 2011 on April 1, 2010.  The earliest start date under this program is October 1, 2010.  There are 65,000 H-1B visa numbers available each year pursuant to the bachelor’s cap and an additional 20,000 numbers for those with a master’s degree from a US institution.  If the demand exceeds the cap, then USCIS will subject petitions received by a cut-off date to a random computerized lottery.  For those petitions that do not receive a number, USCIS will return these petitions along with the filing fees and without prejudice.

Certain petitions are cap exempt and these are for beneficiaries working at: (1) institutions of higher education or affiliated nonprofit entities, (2) nonprofit research organizations and (3) governmental research organizations.  Also, for those individuals who have been counted against the cap within the past six years, and have not departed the US for more than one year, are not subject to the cap.  These individuals include those extending or amending their status, changing employers or filing concurrent petitions.

Based on last year’s track record, during which time the cap was not reached until December 2009, and the continuing sluggishness of our economy, it is doubtful that we will reach the cap in April 2010.  However, I would not venture to bet when we do reach it.

Donald Neufeld’s, Associate Director, Service Center (USCIS) Operations, memo of January 8, 2010, providing guidance on the requisite employer-employee relationship for H-1B purposes, is utterly wrongheaded and harmful to our nation’s economy.   It seems that as our economy has crumbled, USCIS (US Citizenship and Immigration Services) and DHS (Department of Homeland Security) have made a special effort to retard the US economy’s growth and restrict innovation by resorting to deleterious, old-fashioned and prejudicial immigration policies.  Neufeld’s memo is particularly harmful in that it will restrict the competitiveness of US companies in the midst of the most challenging global marketplace the US has ever faced. 

In particular, Neufeld states that in order for there to exist a proper employment relationship for H-1B purposes, the employer must maintain control over the beneficiary employee, even at third party sites.  However, companies rely on contracting IT professionals for their projects so as to avoid high costs and flexibility to grow and streamline as necessary.  Why should H-1B employers not be allowed to contract out their IT employees to third party sites at end clients?  So long as the employer is paying the employee the prevailing wage and the employee is working in the profession designated on the H-1B petition, the employer should be able to delegate control over the specific project to the end client.  However, Neufeld’s memo prohibits such delegation of control in the situation that he calls the “Third-Party Placement”/”Job Shop.”

The US’s immigration policies need to be more liberal and expansive, allowing for creativity and innovation in the workforce so that American employers can create jobs and compete more effectively with businesses worldwide.  Why not rid of the esoteric and regulatory-laden H-1B visa, as well as the L-1 and O-1, and have one temporary working visa that allows for professionals and nonprofessionals, intracompany transferees and extraordinary ability aliens and any other assortment of workers to work in the US so long as there is employment for them (either self-employment or through another employer).  Other requirements could be worked out in terms of a prevailing wage and recruitment to protect US workers.  It’s time to think outside the box!

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. 

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 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.