H1B FY 2012 Prediction and CAP Count - 18 May 2011

As per recent release by USCIS, regular cap has utilized till date 11,200 visas and Masters quota has utilized 7,900 visas as of 13th May 2011. It is interesting to see that H1B visa under Master Cap has utilized more than 35% of the quota. As of now number of petitions increased from last week is 1,600. Based on past months trend, regular cap can reach by 27th January 2012 and Masters Cap by 30 September 2011. Please see our extrapolated Prediction Graph below.

The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers.

H1B FY 2012 CAP Count

Predicted Graph for CAP Count based on current trend

Click Image to Enlarge

H1B FY 2012 CAP Count - 05 May 2011

As per recent release by USCIS, regular cap has utilized till date 10,200 visas and Masters quota has utilized 7,300 visas as of 05th My 2011. It is interesting to see that H1B visa under Master Cap has utilized more than 35% of the quota. As of now number of petitions increased from last week is 1,700.

The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers.

H1B FY 2012 CAP Count - 29 April 2011

As per recent release by USCIS, regular cap has utilized till date 9,200 visas and Masters quota has utilized 6,600 visas as of 29th April 2011. It is interesting to see that H1B visa under Master Cap has utilized more than 25% of the quota. We should remember that TARP funded companies are allowed to file for H1-B this year will little less restrictions. This will affect how early the cap will reach this year. As of now number of petitions increased from last week is 700.

The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers.

H1B FY 2012 CAP Count - As of 22 April 2011

As per recent release by USCIS, regular cap has utilized till date 8,000 visas and Masters quota has utilized 5,900 visas as of 22th April 2011. It is interesting to see that H1B visa under Master Cap has utilized its 25% of the quota. We should remember that TARP funded companies are allowed to file for H1-B this year will little less restrictions. This will affect how early the cap will reach this year. As of now number of petitions increased from last week is 1,800 which is substantial increase in number.

The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers.

H1B FY 2012 CAP Count - 15th April 2011

As per recent release by USCIS, regular cap has utilized till date 7,100 visas and Masters quota has utilized 5,100 visas as of 15th April 2011. It is interesting to see that H1B visa under Master Cap has utilized its 25% of the quota. We should remember that TARP funded companies are allowed to file for H1-B this year will little less restrictions. This will affect how early the cap will reach this year. As of now number of petitions increased from last week is 1,800 which is substantial increase in number.

The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers.

H1B FY 2012 CAP Count - 7th April 2011

As per recent release by USCIS, regular cap has utilized till date 5,900 visas and under Masters quota has utilized 4,500 visas as of 7th April 2011. It is interesting to see that H1B visa under Master Cap has utilized its 25% of the quota. We should remember that TARP funded companies are allowed to file for H1-B this year will little less restrictions. This will affect how early the cap will reach this year.

The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers.

H-1B FY 2012 Cap Season Starts Tomorrow

The H-1B Program

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

For more information about the H-1B program, see the link to the left under temporary workers for H-1B Specialty Occupations and Fashion Models.

How USCIS Determines if an H-1B Petition is Subject to the FY 2012 Cap

We use the information provided in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (Form I-129, pages 17 through 19) to determine whether a petition is subject to the 65,000 H-1B numerical limitation (the “cap”). Some petitions are exempt from the cap under the advanced degree exemption provided to the first 20,000 petitions filed for a beneficiary who has obtained a U.S. master’s degree or higher.

FY 2012 H-1B Cap Count

Cap Type	Cap Amount	Cap Eligible Petitions	Date of Last Count
H-1B Regular Cap	65,000
H-1B Master’s Exemption	20,000

Cap Eligible Petitions

This is the number of petitions that USCIS has accepted for this particular type of cap. It includes cases that have been approved or are still pending. It does not include petitions that have been denied.

Cap Amounts

The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

When to File an FY 2012 H-1B Cap-Subject Petition

We will begin accepting H-1B petitions that are subject to the FY 2012 cap on April 1, 2011. You may file an H-1B petition no more than 6-months in advance of the requested start date.

• Petitions seeking an FY 2012 H-1B cap number with an Oct. 1, 2011 start date can be filed no sooner than April 1, 2011.

Note: If you request a start date for a FY 2012 cap-subject H-1B petition that is prior to Oct. 1, 2011 or submit a cap-subject petition prior to April 1, 2011, your petition will be rejected.

How to Ensure USCIS Considers Your H-1B Cap-Subject Petition Properly Filed

Please comply with the following to ensure that your petition is properly filed:

• Complete all sections of the Form I-129 petition, including the H Classification Supplement to Form I-129 (pages 11 and 12 of Form I-129) and the H-1B Data Collection and Filing Fee Exemption Supplement (pages 17 through 19). We accept Form I-129 with a revision date of November 23, 2010, or later.
  • Original signatures, preferably in blue ink, are required on each form.
• Include a signed check or money order with the correct fee amount.
• Ensure that all required documentation and evidence is submitted with the petition at the time of filing to ensure timely processing.

Note: It is your responsibility to ensure that Form I-129 is completed accurately. Failure to complete Form I-129 with the correct information and provide the required fees or documentation may result in the rejection or denial of the H-1B petition.

Additionally, be sure to file the petition at the correct USCIS Service Center. We will reject all H-1B petitions filed at the wrong location. See section below on “Where to Mail Your H-1B Cap-Subject Petition.”

Additional Documents Required With Your Petition

Labor Condition Application (LCA)

You must submit a certified Department of Labor (DOL) LCA (Form ETA 9035) at the time of filing your petition. A copy of the LCA is acceptable.

Note: USCIS encourages petitioners to keep DOL LCA processing times in mind when preparing the H-1B petition and plan accordingly. If the LCA certified by DOL is for multiple positions, you must provide the name and USCIS case receipt number of any alien who has previously utilized the LCA.

Petitioners should ensure that they have signed the LCA prior to the LCA being submitted with the petition to USCIS.

Please see Department of Labor’s Office of Foreign Labor Certification website for further information on the LCA process.

Evidence of Beneficiary’s Educational Background

You must submit evidence of the beneficiary’s educational degree at the time of filing. If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted:

• A copy of the beneficiary’s final transcript; or
• A letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded).

If you are indicating that the beneficiary is qualified based on a combination of education and experience, please provide substantiating evidence at time of filing.

A Duplicate Copy of the H-1B Petition

You must submit a duplicate copy of your H-1B petition at the time of filing if the beneficiary will be seeking nonimmigrant visa issuance abroad. USCIS will not make a second copy if one is not provided.

You may also choose to submit a duplicate copy of the petition if the beneficiary is requesting a change of status to H-1B or an extension of stay in case the beneficiary later decides to seek visa issuance abroad or the H-1B petition is approved but the beneficiary’s concurrent change of status or extension of stay request is denied.

You may review the Department of State website to make sure that the consulate indicated on Form I-129 is able to process the beneficiary’s nonimmigrant visa application and for any other consulate-specific special instructions.

Multiple or Duplicative Filings

On March 19, 2008, USCIS announced an interim final rule on H-1B visas to prohibit employers from filing multiple or duplicative H-1B visas for the same employee. To ensure fair and orderly distribution of available H-1B visas, USCIS will deny or revoke multiple or duplicative petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.

Where to Mail Your H-1B Cap-Subject Petition

You must file your petition at the correct Service Center depending on the jurisdiction of the H-1B beneficiary’s work location as specified in the petition. We have established specific mailing addresses for purposes of identification and processing of H-1B cap-subject cases.

To determine which jurisdiction you are in, see the link to the right for H-1B filing locations.

Note: A separate mailing address has been established for certain types of educational or nonprofit organizations which file H-1B petitions on behalf of beneficiaries that are exempt from the H-1B numerical limitations.

Please read the filing instructions very carefully. If you file your petition incorrectly, we will reject the petition. Rejected petitions will not retain a filing date.

Required Fees

There are different fees depending on the type of H-1B petition you are submitting. Please refer to Fee Exemption and/or Determination (pages 17 and 18 of Form I-129) for detailed instructions on fees.

The following fees may be required with a cap-subject petition:

Base filing fee:

• $325

American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee

(see H-1B Data Collection and Filing Fee Exemption Supplement, Part B):

• $750 for employers with 1 to 25 full-time equivalent employees, unless exempt
• $1,500 for employers with 26 or more full-time equivalent employees, unless exempt

Fraud Prevention and Detection fee:

• $500 to be submitted with the initial H-1B petition filed on behalf of each beneficiary by a petitioner (does not apply to Chile/Singapore H-1B1 petitions)

Public Law 111-230

• $2,000 to be submitted by a petitioner which employs 50 or more employees in the United States where more than 50 percent of its employees in the United States are in H-1B or L-1 nonimmigrant status.

Premium Processing fee:

• $1,225 for employers seeking Premium Processing Service

Checks

Make checks payable to the Department of Homeland Security or U.S. Citizenship and Immigration Services, dated within the last 6-months, and include the proper guarantee amount and signature.

Money Orders

Money orders must be properly endorsed.

Non-payable Checks or Other Financial Instruments

USCIS will reject all applications or petitions submitted with the incorrect filing fee. Rejected petitions and petitions in which the check or other financial instrument used to pay the filing fee is returned as non-payable will not retain a filing date. See 8 CFR 103.2(a)(7)(i).

While petitioners are generally provided the opportunity to correct a fee deficiency, pursuant to the regulations, the filing date is not established until and unless the fee deficiency has been corrected. H-1B cap-subject petitions with non-payable fees will be given a new filing date the day the fee deficiency has been corrected, as long as the cap has not been met. If the new filing date is after the cap has been met, the petition will be rejected.

Premium Processing Service

H-1B petitions are eligible for the Premium Processing Service. Petitioners may choose to file a Request for Premium Processing Service (Form I-907) to have their petition processed within 15 calendar days. To request premium processing submit:

• the Form I-907 and
• the filing fee of $1,225 (this fee is in addition to the required base filing and other applicable fees and cannot be waived).

You can file the Form I-907 and corresponding fee:

• at the same time as Form I-129 or
• at any time after you file Form I-129 while it is still pending.

If filed after the Form I-129, be sure to include the receipt number (e.g., EAC 11 123 51234) of the Form I-129 in the pertinent section of Form I-907.

Note: We will only accept the 08/10/09N (or later) edition of Form I-907.

Please see the link to the right for more information concerning the Premium Processing program.

Organizing your H-1B package

Clearly label all H-1B cap cases, preferably in red ink, on the top margin of Form I-129. Use the following codes:

• Regular Cap (65,000 regular cap cases, not including Chile/Singapore cap cases)
• C/S Cap (Chile/Singapore H-1B1s)
• U.S. Master’s (20,000 exemption for beneficiaries with U.S. master’s or higher degrees)

A separate check for each applicable filing fee (Form I-129, Premium Processing, Fraud Fee, ACWIA fee, and Public Law 111-230) is preferred. Applicable fees should be stapled to the bottom right corner of the top document.

Preferred order of documents at time of submission:

• Form I-907 (if filing for Premium Processing Service)
• Form G-28 (if represented by an attorney or accredited representative)
• Form I-129, Petition for a Nonimmigrant Worker
• H Classification Supplement to Form I-129
• H-1B Data Collection and Filing Fee Exemption Supplement
• All supporting documentation to establish eligibility
• Provide a Table of Contents for supporting documentation
  • Tab items as listed in Table of Contents
  • Arrival-Departure Record (Form I-94) if the beneficiary is in the U.S.
  • SEVIS Form I-20 if the beneficiary is a current or former F-1 student or F-2 dependent
  • SEVIS Form DS-2019 if the beneficiary is a current or former J-1 or J-2
  • Form I-566 if the beneficiary is a current A or G nonimmigrant
  • DOL certified LCA, Form ETA 9035
  • Employer/attorney/representative letter(s); and
  • Other supporting documentation.
• Duplicate copy of the petition, if necessary. Clearly indentify the duplicate copy of the petition as “COPY”, so that it is not mistaken for a duplicate filing.

How to mail multiple petitions together

If multiple petitions will be included in the same courier service or Post Office package, please place individual petitions into separate envelopes within the package. Individual petition envelopes should be marked with the following labels to reference the type of petition:

• Master’s Premium
• Master’s
• Regular Premium
• Regular
• Chile/Singapore

Filing Tips:

Form G-28, Notice of Entry of Appearance as Attorney or Representative

If the petitioner will be represented by an attorney or other accredited representative, a properly executed Form G-28 should be submitted. Each Form G-28 should include the following:

• All sections completed
• The printed name and signature of the representative
• The original signature of the petitioner.

Form I-129, Petition for a Nonimmigrant Worker

• Complete all sections of the form accurately.
• Ensure that the petition is properly signed. Please see the Related Links section for more information on properly signing the petition.
• Provide the petitioner name and address on the USCIS petition form. It is critical that petitioners accurately provide their name and address on the USCIS petition form. This facilitates USCIS in matching information from the petition with information received from the Independent Information Provider (IIP) through the Validation Instrument for Business Enterprises (VIBE). Listing an attorney or representative’s address in the “Petitioner Information” section of the form may result in the issuance of an RFE.
• Ensure the beneficiary’s name is spelled properly and that his/her date of birth is displayed in the proper format (mm/dd/yyyy). Also, country of birth/citizenship and the I-94 number (if applicable) should be reviewed for accuracy.
• If the beneficiary will ultimately be seeking issuance of a visa at a consular office abroad, a copy of the petition and supporting documentation should be included with the filing. For cases where the beneficiary will be seeking a change of status or extension of stay in the United States, a copy is suggested, but not necessary.
• If the beneficiary is seeking an extension or change of status, the petition should include evidence (e.g. Form I-94 or Form I-797 approval notice) to establish that the beneficiary will have maintained a valid nonimmigrant status through the employment start date being requested.
• Include a copy of the beneficiary’s valid passport.

H Classification Supplement to Form I-129 (pages 11 and 12 of Form I-129)

• Please be sure to complete all sections of the form accurately.
• In listing previous periods of stay in H/L classification (question 3), please also include the actual nonimmigrant classification held (e.g. H-1B or L-1).
• Petitioner must sign the form, preferably in blue ink.

H-1B Data Collection and Filing Fee Supplement form (pages 17 through 19 of Form I-129)

• Please be sure to complete all sections of the form accurately.
• Please enclose page 17 through 19 of the Form I-129 (with a revision date of November 23, 2010 or later).
• Be sure to answer appropriately in Part A, question 5 and Part C, question 2 if the beneficiary has earned a master’s degree or higher from a U.S. educational institution.

Form I-907, Request for Premium Processing

• Please be sure to complete all sections of the form accurately with original signatures. Note: We will accept the 08/10/09 edition of Form I-907 (or later)
• The representative may sign in both Parts 3 and 4 of the Form I-907 if there is a valid Form G-28 with the filing. Otherwise, the petitioner’s signature is required. Preferably, the signature(s) should be in blue ink.
• Please include a copy of the Form I-129 receipt notice along with the Form I-907 when Form I-907 is filed after the filing of Form I-129.

Source - www.uscis.gov

H1B FY 2011 Cap Reached - 26th January 2011

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011. USCIS is notifying the public that yesterday, Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.

The final receipt date is the date on which USCIS determines that it has received enough cap-subject petitions to reach the limit of 65,000. Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2011 that arrive after Jan. 26, 2011.

USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on Jan. 26, 2011. USCIS will use this process to select petitions needed to meet the cap. USCIS will reject all remaining cap-subject petitions not randomly selected and will return the accompanying fee.

On Dec. 22, 2010, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the ‘advanced degree’ exemption. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Pursuant to the Immigration and Nationality Act, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally-mandated FY2011 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

a) extend the amount of time a current H-1B worker may remain in the U.S.;
b) change the terms of employment for current H-1B workers;
c) allow current H-1B workers to change employers; and
d) allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as scientists, engineers, or computer programmers.

For more information on USCIS and its programs, visit www.uscis.gov.

H1B FY 2011 Cap Count - Still 1500 visas available

As per recent release by USCIS, regular cap has utilized till date 62,800 visas. Just to remind our readers, all application submitted under Masters Cap will be counted towards regular cap.

As per American Immigration Lawyer Association (AILA), USCIS has 6,350 H-1B Singapore and Chile unused numbers from FY 2010. The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers.

Taking this into account, H1B Cap for FY 2011 will not be reached until regular cap has utilized around 64,350 total visas under regular cap.

H1B FY 2011 Cap Count - 14 January 2011

As per recent release by USCIS, regular cap has utilized till date 60,700 visas. As per American Immigration Lawyer Association (AILA), USCIS has 6,350 H-1B Singapore and Chile unused numbers from FY 2010. The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers. Taking this into account, H1B Cap for FY 2011 will not be reached until regular cap has utilized around 64,350 total visas under regular cap. Just to remind our readers, all application submitted under Masters Cap will be counted towards regular cap.

H1B FY 2011 Cap Count - 7th Jan 2011

As per recent release by USCIS, regular cap has utilized till date 58,700 visas. As per American Immigration Lawyer Association (AILA), USCIS has 6,350 H-1B Singapore and Chile unused numbers from FY 2010. The readers should remember that available visa numbers for regular cap cases is not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. From last year we still have these 6,350 unused visa numbers. Taking this into account, H1B Cap for FY 2011 will not be reached until regular cap has utilized around 64,350 total visas under regular cap. Just to remind our readers, all application submitted under Masters Cap will be counted towards regular cap.

H1B FY 2011 - Still 1000 Visas Available under Regular Cap

AS of 31st December 2010, USCIS announced that atleast 1000 visa numbers are still available under Regular Cap Quota. Masters Quota has been reached. USCIS is still accepting application under Master's quota that will be counted towards regular cap. Regular Cap eligible petitioned received till date is 57,300

Visas Still Available : H1B FY 2011 Cap Count - 24 December 2010

As per recent release by USCIS, Masters Cap has been reached. Still 2000 visa are available under regular cap. The readers should remember that available cap numbers for regular cap cases are not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

Regular Cap still has 2000 visas left. If you are looking to sponsor your employee, please 'Hurry Up!!!'

H1B FY 2011 Cap Count
Regular Cap Reached	55800
Regular Cap Limit	65000
Masters Cap Reached	20000
Masters Cap Limit	20000
Last Counted	24th December 2010

H1B FY 2011 Cap Count - 17 December 2010

These are the latest update on H1B FY 2011 CAP Count. The readers should remember that available cap numbers for regular cap cases are not 65,000. Not all H-1B visa are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. Also when number is reached for Masters Cap, all Masters application will start using the numbers from Regular Cap Case. H1B FY 2011 Quota would likely be reached by New Years.

H1B FY 2011 Cap Count
Regular Cap Reached	53900
Regular Cap Limit	65000
Masters Cap Reached	19700
Masters Cap Limit	20000
Last Counted	17th December 2010

H1B FY 2011 Cap Count - April 15, 2010

USCIS has received approximately 13,600 H-1B petitions counting toward the 65,000 cap. The agency has received approximately 5,800 petitions for individuals with advanced degrees until April 15th, 2009..

RENEGING REFORM - Have President Obama's immigration reform promises faded from mind? - By Martin Desmarais

A year ago spirits in the immigration law industry were flying high as many anticipated newly elected President Barack Obama would deliver on his campaign promise of comprehensive immigration reform. However, that optimism has swung deeply south as many now feel comprehensive immigration reform is as far off as it has ever been.

“Obama made a lot of promises to a lot of different groups, but the reality on the ground is bit different,” said Charles H. Kuck, managing partner of the Atlanta-based immigration law firm Kuck Casablanca LLC and immediate past president of the American Immigration Lawyers Association. “He should be pushing immigration reform along … regardless of the economy, regardless if his health care passes.”

Kuck does not doubt President Obama’s interest in immigration reform. However, he is not satisfied with the tactic of relying on Congress to put forth legislation on the matter. Kuck believes that, due to the hot button nature of immigration reform, this is not something that America’s legislators have an interest in doing. He stressed that President Obama needs to put Congress’ “feet to the fire” or they will not act.

And now, with elections looming for legislators, Kuck does not anticipate any movement on comprehensive immigration reform. “On the ground the feeling is the chance of immigration reform are slim,” he said.

According to him, the immigration situation has reverted back to what it was when former President George H.W. Bush was in office, which is disheartening sentiment for many of the immigration reform supporters who welcomed the onset of President Obama administration.

“It puts us in an immigration malaise,” Kuck said. “It puts us trying to protect the same laws we have been trying to protect for 20 years.”

Kuck believes that some immigration reform may come piecemeal piggybacked on other legislation, but he has put his hopes of comprehensive immigration reform aside for the moment.

He also pointed out that Obama’s administration has actually been tougher on immigration than Bush’s ever was, with aggressive audits of immigration workers and a recent memo from the U.S. Citizenship and Immigration Services, which has made it even harder to obtain H1-B visas due to the bureau’s new stricter interpretation of H1-B definitions.

Kuck

“The practice of immigration law has become that much harder,” Kuck said. “Sure clients are turning to us but we have less and less of the answers … It is just that much more difficult to obtain the status they want.

“Right now is a difficult time. Usually there is a rush to get H1-Bs, but there is no rush right now. There are no H1-Bs,” he added. “They are not going to hit the cap for many years.”

Sheela Murthy, head of Owing Mills, Md.-based, immigration-focused, Murthy Law Firm, had less optimism than most about the reality of immigration reform happening in 2009, so she is less surprised that the tide seemed to have turned, but this does not make things any easier to swallow from her perspective.

“I think it has been shoveled aside because there are bigger problems [such as health care, war and the economy],” Murthy said. “It is frustrating because you keep hoping something will happen for people who have spent their life working [on immigration].

Regardless, she stressed that immigration reform cannot be continually swept under the rug. “There are no simple solutions for any of this, but it all makes perfect sense that we need to do something about this. There is a problem,” she said. “There seems to be a huge systematic overhaul problem that we are dealing with.”

Like Kuck, Murthy sees an impact on the way her immigration law firm does business.

“Yes, the climate has changed. Things have become more difficult,” she said.

Murthy is particularly dissatisfied about the USCIS memo that has made it harder to get H1-Bs and she feels that the bureau has out stepped its legal bounds through the document. Her law firm is prepared to sue the government over the memo and has drafted a 28-page brief for a lawsuit and also sent a letter to the USCIS.

“We are challenging the government and telling them to revisit it,” Murthy said. She expects to get a response to her letter and will proceed forward depending on the response.

Though she feels confident that her firm has a case in regards to USCIS attempting to increase H1-B restrictions without going through the proper legislative channels to do so, she does admit concerns that moving forward with a lawsuit may be difficult because companies do not want to come forward and be part of it, choosing instead to try and work around the USCIS’ increased stringency.

Sheela Murthy

“Everyone is afraid of repercussions,” Murthy said. “The problem is I don’t want to threaten a lawsuit if people are not going to help me sue.”

At the end of the day, she feels the increased immigration scrutiny is increasingly coming down on immigration lawyers, who have to work harder and harder to get the results clients are looking for.

Scott Cooper, managing partner for the Michigan office of immigration law firm Fragomen, Del Rey Bernsen & Loewy PLLC, sees less and less of the results clients want happening – especially in regards to the different visa categories.

“[The documentation process for most visa categories] is very burdensome on the employer and it is very discouraging,” Cooper said.

Fragomen, Del Rey Bernsen & Loewy, which was started in New York, has more than 1,000 immigration professionals in over 30 offices in 14 countries and Cooper said the United States is increasingly becoming one of the most difficult places for immigrants to come and start businesses. “We are trying to shoehorn these people who want to create small- and medium-sized businesses into one category or another and the government is fighting us tooth-and-nail.”

He believes the more difficult the United States makes it to transfer in skilled personal the more companies will look outside the country for options. “It is almost like the government is trying to offshore jobs,” Cooper said. “And it is very counterproductive.”

When asked what he thinks it will take for immigration reform to happen, Cooper admits the belief that there is very little that good trigger any movement on the topic currently. “We are just too close to an election for an immigration bill. It is just too hot of a topic,” he said.

Beyond that he is not too optimistic. “They are trying to get health care done and it is a question of who is up next,” Cooper added. “I am not very encouraged.”

Immigration attorney Hanishi Ali, a founding partner at Westborough, Mass.-based Mithras Law Group, takes heart in the fact that President Obama continues to publicly say he is still supporting immigration reform.

“It is promising to hear that Pres. Obama still supports comprehensive immigration reform,” Ali said. “At least he hasn’t forgotten, but clearly we are going to deal with health care and the economy first.”

Still, like most of her immigration colleagues, she is insistent that comprehensive immigration reform must happen and that is the message that must be sent to the nation’s lawmakers. “We have to make legislators understand the pros and cons of this and really there aren’t that many cons.”.

The Employment Based Green Card Process And The Dramatic Negative Impact Of Country Based Quotas On Persons of Indian and China Origin

United States immigration laws are preventing many of the most talented immigrants in the world from migrating to the United States. On January 10, 2010, the United States Citizenship and Immigration Services (USCIS) released new data confirming that some prospective highly skilled immigrants from one country – India – may have to wait as much as 35 years to get a green card, unless Congress takes steps to change the current nationality based visa quota system and increases the annual quota.

Under the Immigration and Nationality Act (INA), 140,0001 employment based immigrants, inclusive of spouses and children, may migrate to this country annually in one of five general categories.

First Preference Employment Based Immigrants (EB‐1) : This category is for Priority Workers and is limited to 40,000 visas each year (28.6% of the worldwide employment‐based preference level). Any unused visa numbers from the EB‐4 and EB‐5 categories may be added to this quota. 15, 184 workers and 21,494 spouses and children immigrated under this category in FY 2008, which is the latest available detailed data.

Second Preference Employment Based Immigrants (EB‐2): This category is for workers in professions holding advanced degrees or persons of exceptional ability. The number of visas available annually in this category are 40,000 (28.6% of the worldwide employment‐based preference level), plus any visas that are not used in the EB‐1 category. 34,535 workers and 35,511 spouses and children immigrated under this category in FY 2008.

Third Preference Employment Based Immigrants (EB‐3): This category is for skilled workers, professionals, and lesser skilled workers referred to as "other workers: The annual limit for workers in this category is 40,000 (28.6% of the worldwide employment‐based preference level), plus any visas that are not used in the EB‐2 category for that year. However, no more than 10,000 visas can be allocated to the lesser skilled "other workers" in this category. 20,596 workers and 28,303 spouses and children immigrated under this category in FY 2008.

Fourth Preference Employment Based Immigrants (EB‐4): This category is for certain special immigrants such as religious workers, certain long‐time employees of the U.S. government, citizens of Iraq or Afghanistan that have worked for the U.S. Armed Forces as a translator for at least 1 year, some physicians who have residence in the U.S. for a number of years, juvenile dependents of a court who are eligible for foster care, some dependents of diplomats and others . It is limited to a maximum of 10,000 visas per year (7.1% of the worldwide employment‐based preference level). 5,164 workers and 4,346 spouses and children immigrated under this category in FY 2008.

Fifth Preference Employment Based Immigrants (EB‐5): This category is for investor immigrants who create employment . It is limited to a maximum of 10,000 visas each year (7.1% of the worldwide employment‐based preference level). 427 workers and 922 spouses and children immigrated under this category in FY 2008.

The employment based categories are further restricted by country of nationality, and no more than 7 percent of each category can be allocated to any single nationality. Thus, no more than 2800 visas may be initially allocated to a single nationality group in each of the first three categories. Similarly, no more than 700 visas in each of the last two categories may be awarded to nationals of any single country.

This seemingly arbitrary across‐the‐board limitation has proven disproportionately disadvantageous to visa applicants from more densely populated countries. For example, under this formula, the maximum number of visas allotted to nationals of China and India, each with a population of over one billion citizens – is the same as that for nationals from smaller states such as Nauru with a population of 10,000 or even the Vatican, which has a population of only 800 citizens.

In recent years, there have been times when the total number of available visas in a particular category have not been entirely allocated. When this happens, these unused visas become available to oversubscribed countries such as India and China. The complex numerical allocation system cannot be fully explained here. The Department of State has a detailed explanation of this process at its website http://www.travel.state.gov/pdf/Immigrant%20Visa%20Control%20System_operation%20of.pdf . In 2000, Congress passed legislation which allowed the use of approximately 130,000 unused visas from the 1999 and 2000 fiscal years to be used in future years when the 140,000 annual limit was reached. This allowed additional visas to be issued in the EB‐2 and EB‐3 categories. The following chart shows the number of immigrant visas (green cards) allocated worldwide on an annual basis as well as the immigrant visas issued to Indian and Chinese nationals in the two categories that are oversubscribed – EB‐2 and EB‐3:

For the past seven years, in my role as the nation's first Citizenship and Immigration Services Ombudsman and subsequently as an immigration attorney in private practice, I have requested from USCIS the data on the total number of pending employment‐based cases by category, priority date, and country of chargeability. Common sense dictates that USCIS would maintain and monitor such statistics in the course of performing its core immigration functions. Without this data, USCIS would appear to be violating the very basis of the law that established the numerical limits on employment‐based immigrant visas. The responses to my queries have been disheartening at best.

In August 2009 USCIS released a report that, for the first time, publicly revealed some of this important data that I had been requesting since 2003. On January 10, 2010, USCIS released an updated version of the data. USCIS has acknowledged that it has not included all the data since its systems do not allow it to do so. The data excluded some pending cases for which visa petitions had not been approved, even though USCIS accepted the I‐485 applications concurrently. USCIS also excluded applications pending at field offices, which are apparently on a different database system, and excluded the pending cases with the Department of State's National Visa Center (NVC).

DOS recently released data on pending cases at the NVC. The combined data paint a bleak picture for EB‐2 and EB‐3 applicants. However, for Indian and Chinese nationals, the news is even worse.

The following chart shows total combined pending number of employment based visa applications pending at the two USCIS Service Centers based on the Jan 10, 2010 report as well as the number of employment based visa applications pending at the Department of State's National Visa Center:

As pointed out earlier, Table 2 reflects the estimated total number of pending applications for employment based immigrant visas based on the available data. USCIS has always insisted that the data from the two service centers reflects most of the applicants. However, in a strange twist of events, on January 28, 2010, the Department of State provided the author with data on visa requests from various USCIS offices including the two service centers. The data reveals that during the first four months of the fiscal year, USCIS service centers requested 4,200 employment based immigrant visas while district (field) offices requested 8,400 employment based immigrant visas. This suggests that field offices may have many more pending cases than USCIS has previously represented. If USCIS has a large number of employment based immigrant visa applications pending at the field offices, as indicated by the visa requests from field offices in the first four months of this fiscal year, the ominous predictions for the estimated number of years to process the EB‐2 and EB‐3 cases for India and China could rise dramatically.

On February 3, 2010, the Department of State released the current pool of visa applicants and documentarily qualified applicants for whom USCIS has already requested a visa number. The following charts, Tables 3 & 4, replicate the charts published by DOS and confirm the information provided above. It should be noted that this set of numbers includes all visa applicants waiting abroad and registered with the NVC and also includes a portion of the current pending applicants at USCIS Service Centers shown in Table 2 and some additional USCIS pending applicants at USCIS field offices. Unfortunately, neither USCIS nor DOS have been able to reconcile and account for the numbers reported by USCIS into the DOS database. For applicants, their lawyers, researchers and anyone else reviewing the data, including Congress, this situation presents an environment where there is no ability to hold the government agencies accountable for their actions or inactions in this area since data can be manipulated without regard to legislative requirements:

The data in Table 3 and Table 4 is used to set the monthly visa priority dates which is the official process by which the visa quotas are allocated. The monthly Visa Bulletin and a more complete explanation of the Visa Bulletin can be accessed at http://www.state.gov/ .

Solution
The immediate solution is full accountability of all pending applicants for employment based immigrant visas both at USCIS and DOS. Without accurate data, it is difficult to hold the agencies accountable for their actions or inactions.

Another solution is to "recapture" lost visas. Between 1994 and 2006, USCIS underutilized the visa numbers by approving less than the 140,000 employment based applications each year even though USCIS had more than enough applications pending. Due to the statutory calculation method (explained more fully by USCIS and DOS on their websites), USCIS's failure to timely process a sufficient number of applications resulted in the loss of approximately 349,000 visa numbers that could not be used in future years since the law prevents usage in future years. In 2000, Congress authorized the use of 130,000 these "lost" visa numbers by what has come to be known as the "visa recapture" method. However, approximately 219,000 numbers have not been "recaptured". The current worldwide pending cases in all employment based categories is approximately 340,000 applicants. A one‐time recapture of the 219,000 unused visa numbers could go a long way to eliminating this backlog and bringing much needed relief to many applicants who currently face the prospect of becoming residents of the United States after they retire.

The most important solution is resolving the nationality based discrimination built into our immigration laws, especially with regards to attracting the "best and the brightest" talent regardless of nationality. Congress must act now to end this nationality‐based discrimination against would‐be immigrants. Stakeholders in this issue — including U.S. employers in need of highly skilled workers— should let their lawmakers know in this election year that such discrimination is no longer tolerable. It is time to remove this blemish from our immigration system.

It is imperative that lawmakers review these ominous statistics. Congress needs to take action to remedy this problem. The problem was caused in part by inefficiencies and lack of accountability at USCIS and its predecessor agency, the Immigration and Naturalization Service (INS); in part by the failure of two agencies, USCIS and DOS to cooperate and share data; and, in part by the national origin based discriminatory statute, which is having an unintended effect of preventing tens of thousands of the most talented individuals from equally competing for visas that should be given to those that this country most needs rather than by discriminating based on national origin.

- By Prakash Khatri

Fakhoury Law Group

Prakash Khatri has a national Immigration Law practice based out of Washington, DC. He has been practicing law for more than 25 years. He is a nationally recognized expert on Immigration law and process. He is also the President and CEO of KPK Global Solutions, LLC, a consulting firm specializing in strategic-level immigration issues and is "of Counsel" to the Fakhoury Law Group.

H1B FY 2011 Cap Count - April 09, 2010

USCIS Continues to Accept FY 2011 H-1B Petitions

WASHINGTON - U.S. Citizenship and Immigration Services (USCIS) today announced it continues to accept H-1B nonimmigrant petitions subject to the Fiscal Year 2011 (FY 2011) cap. USCIS will monitor the number of petitions received for both the 65,000 general cap and the 20,000 U.S. master’s degree or higher educational exemption.

USCIS has received approximately 13,500 H-1B petitions counting toward the 65,000 cap. The agency has received approximately 5,600 petitions for individuals with advanced degrees.

USCIS will provide regular updates on the processing of FY 2011 H-1B petitions. These updates and helpful filing information can be found at USCIS’ Web site. Should USCIS receive the necessary number of petitions to meet the cap, it will issue an update to advise the public, that the FY 2011 H-1B cap has been met as of a certain date (the “final receipt date”). The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition has been postmarked. The date USCIS informs the public that the cap has been reached may differ from the actual final receipt date.

To ensure a fair system, USCIS may randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.

For cases filed for premium processing during the initial five-day filing window of April 1-7, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date that the petition is physically received at the correct USCIS Service Center.

Petitions filed by employers who are exempt from the cap or petitions filed on behalf of current H-1B workers who have been counted previously against the cap within the past six years will not count toward the congressionally mandated H-1B cap.

Therefore, USCIS will continue to process all petitions filed. For more information on USCIS and its programs, visit www.uscis.gov.

H-1B in General: U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in fields, such as scientists, engineers, or computer programmers.

H1B FY 2010 Cap Count - September 25, 2009 - 46,700

As of September 25, 2009, approximately 46,700 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

H1B FY 2010 Cap Count - September 18, 2009 - 46,000

As of September 18, 2009, approximately 46,000 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.