Categories News & Updates USCIS

USCIS Announces Initial H-1B Receipt Numbers

The U.S. Citizenship and Immigration Services (USCIS) has just announced that it has received?approximately 5,900?H-1B petitions under the regular H-1B cap of 65,000, and that?around?4,500?have been counted toward the 20,000 set aside for those with advanced U.S. degrees.? This means that USCIS continues to accept applications for initial H-1B status a week after the H-1B filing season opened up on April 1st.? This seems to be a reflection of the economy as it continues its slow improvement.?

It is interesting to note that fewer H-1B numbers have been accounted for during the first week of this cap-filing season than were received during the same timeframe last year.? However, considering that H-1B numbers for last year’s H-1B cap were available through most of January, it is logical that fewer H-1B petitions were stockpiled for an April 1st filing.

Last year’s H-1B cap for FY2011 also experience much lower demand, with H-1B numbers?being available until January 26, 2011 – the?FY2011 cap opened on April 1, 2010.?The lower demand of the past two years is in stark contrast to the FY2009 H-1B cap when 133,000 H-1B petitions were received within the first two days of filing.? Again, the usage of H-1B numbers appears to be in direct correlation with the health of the economy.

In light of the announcement today, H-1B petitions will continue to be accepted by USCIS.? If the 20,000 set aside for those with advanced U.S. degrees is exhausted first, H-1B numbers for these applicants will be taken from the regular cap of 65,000.? On the day USCIS determines that sufficient petitions have been received to meet the annual limit, a random selection lottery will be conducted for all cases received on that day. Cases not selected in the lottery will be rejected.

Categories News & Updates USCIS

USCIS Proposes New H-1B Pre-Registration Process

Today, the U.S. Citizenship and Immigration Services (USCIS) announced a proposal to amend its regulations to require companies filing H-1B petitions to pre-register each new cap-subject H-1B case prior to filing.? The proposed rule will be printed in the Federal Register tomorrow, March 3, 2011, and will be open for comments for 60 days.

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Under this new rule, USCIS would create an internet-based electronic registration process for U.S. employers that anticipate filing H-1B petitions subject to the annual limitation of 65,000 under the regular H-1B cap or 20,000 under the advanced U.S. degree cap.? Employers would go into the electronic registration system and provide information about the company and specific employee to be sponsored.? A separate registration is required for each beneficiary.? In part, this is to avoid certain petitioners from monopolizing large numbers of H-1Bs for unknown potential beneficiaries in the future.? In other words, employers would need to name a specific individual for which H-1B sponsorship will be sought.? The registration acceptance would need to be paired with the H-1B petition, which avoids substitution of one beneficiary for another.

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The thrust of the new proposal is to save time, money and other resources in years where the annual H-1B cap numbers are exhausted within the first few days.? For example, the FY2009 H-1B cap, which opened up on April 1, 2008, saw 133,000 H-1B petitions filed within the first few days under the regular cap of 65,000.? These cases were put into a random lottery and those not selected were rejected and returned.? According to USCIS, this created a significant burden to manage the additional filings and return them to petitioners.? In a year where demand is significantly higher than availability, such as with the FY2009 H-1B cap, the pre-registration rule would essentially streamline the selection process by managing it electronically before any case is filed.? While all cases properly registered will receive a notice of acceptance, an H-1B case would only be filed upon receipt of a notice of selection.? Each notice will have a unique identifying number for tracking purposes.

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As far as the specific process goes, USCIS anticipates opening registration a minimum of two weeks prior to the start of the H-1B filing season.??? If the number of registrations is not sufficient to meet the annual H-1B cap allotment, the registration period will remain open until the cap is exhausted and all cases received during the initial registration period will be accepted.? Once USCIS believes sufficient H-1B cases have been received, it will announce the closing of registration and conduct a random selection of all registrations received on the last day of the registration period.

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When an employer receives a notice of selection, it will have 60 days from that time to file the corresponding H-1B petition.? Petitions filed after the 60-day filing period would be rejected.? Again, USCIS will not permit the substitution of beneficiaries.?

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This rule would create a number of significant differences in internal processing.? We will monitor the progress of this proposed rule and will send out another news alert and communications to our clients once the final rule has been confirmed.? We will work with clients to ensure compliance with the final rule.? Please contact Graham Adair with questions about how this proposed rule might affect annual H-1B cap processing.

Categories Compliance News & Updates USCIS

New Combined EAD and AP Card

The U.S. Citizenship and Immigration Services (USCIS) just announced that it will start issuing a new combined employment authorization document (EAD) and advanced parole document (AP) to certain individuals who have a pending employment or family based I-485 application to adjust status. This new combined EAD/AP card will look similar to the current EAD card, but will contain language on the face of the card that states ?Serves as I-512 Advanced Parole.? The new card will be issued to individuals who concurrently apply for their EAD and AP documents with their I-485 application. The card will also be issued to applicants who file for extensions of their EAD and AP documents concurrently, so long as their EAD and AP documents expire within 120 days of each other.

The new card will be issued for one to two years at the discretion of USCIS. This new card will allow individuals to carry only a single document for work and travel authorization while the I-485 applications are pending.

Employers will be able to treat this document as a List A document for purposes of I-9 verification.

If you have further questions about this document please contact Graham Adair.

Categories News & Updates USCIS

H-1B Cap Reached

The U.S. Citizenship and Immigration Services (USCIS) announced this evening that it received sufficient petitions to exhaust the FY2011 H-1B cap as of Wednesday, January 26th.? Cases properly filed and received before Wednesday the 26th will be accepted and processed to adjudication.? Cases received on Wednesday will be subjected to a computer-generated random selection process.? Cases not selected in the lottery will be rejected and filing fees returned.? No announcement has been made yet on how many petitions will be subjected to the random selection, nor how many numbers are available for those cases.

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It should be noted that even if postmarked on or before Wednesday the 26th, cases not physically received by USCIS by that date will be rejected and filing fees returned.

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The FY2012 H-1B cap will open on April 1, 2011.? Cases approved for FY2012 will not become effective until October 1, 2011, which is when the new fiscal year begins.? Employers wishing to employ individuals who missed the FY2011 cap will need to ensure continued U.S. work authorization through at least September 30, 2011, to keep them on payroll until a new H-1B can be obtained.

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There are a number of options available to those who missed the H-1B cap.? For specific guidance, please contact Graham Adair: info@grahamadair.com.

Categories Department of State News & Updates

U.S. Department of State Provides Guidance L-1B Specialized Knowledge

The Department of State (DOS) issued a memorandum to U.S. consular posts in an effort to define L-1B specialized knowledge. The memorandum lays out criteria that L-1B visa applicants can expect to encounter.? Of course, policy memoranda have a tendency to take some time for full implementation, but the guidance may permeate through U.S. consular posts fairly quickly.?? ?

The memorandum essentially applies a stricter standard than what has been seen at U.S. consular posts in recent history.? While this higher threshold has been applied over the past few years at U.S. Citizenship and Immigration Services (USCIS), it will be new for U.S. consular posts.

It is noteworthy that the law being relied upon for the heightened specialized knowledge scrutiny dates back to before the enactment of the Immigration Act of 1990.? Indeed, it goes contrary to more recent policy memoranda issued by USCIS applying a more relaxed burden of proof on sponsoring employers.

?Proprietary Knowledge?

The DOS notes that knowledge of proprietary products, services, or processes is not required, but recommends that adjudicators take it into consideration when making a determination.? It seems, therefore, that employees with knowledge of proprietary company information stand a better chance of success. The DOS cites the former INS standard that if ?it would be difficult to impart to another without significant economic inconvenience,? this may be dispositive to the outcome of determining specialized knowledge.?

?Key Personnel?

For larger companies with more than one employee holding a specified position, the issue of ?key? versus ?normal? personnel should be considered, according to the memorandum. ?In other words, consideration should be given to whether this employee is more experienced or otherwise has a deeper level of knowledge of a specific company function. This is not to say that only one employee of a particular job family can qualify.? Instead, he or she should be distinguishable from other ?ordinary? skilled workers within the company.?

?More than Ordinary?

The memorandum also instructs that the ?more than ordinary? standard should also be applied.? The dichotomy here is that the DOS also explains that the employee need not be extraordinary.? In trying to explain where this factor comes down, the memorandum notes that the employee?s work should involve knowledge of special company projects or greater than normal experience or knowledge.? There appears to be some overlap between the ?key personnel? and ?more than ordinary? standards.

Employer-Employee Relationships

Similar to USCIS?s position on this issue, in instances where an employee will be placed at the worksite of an unaffiliated company, DOS requires proof that the employee will be controlled and supervised by the sponsoring employer.? While the unaffiliated company may have input into what the employee does on a day-to-day basis, the main issue is the ultimate right of control ? this must reside in the sponsoring employer to maintain the requisite employer-employee relationship.

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Graham Adair?will work?with?clients to anticipate the application of this stricter standard by supplying additional information about the nature of the transferring employee?s skills and experience. ?If a distinction about the employee?s specialized knowledge cannot be made, his or her visa application could be denied.