February 2014 Newsletter
In This Issue
H-1B Alert: Filing starts April 1 for Next Fiscal Year
Congress sets a limit on the number of H-1B visas available each year. This past fiscal year, H-1B numbers were exhausted within the first five days of filing. The Alliance of Business Immigration Lawyers (ABIL) anticipates that the numbers will run out quickly again this year.
If U.S. Citizenship and Immigration Services (USCIS) receives more petitions than it can accept, it will use a lottery system to randomly select the number of petitions filed during that period to reach the numerical limit. USCIS did this last year. The agency will reject petitions that are subject to the cap but not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap.
Every time an employer hires an individual for a specialty occupation, an H-1B number must be available. (An exception arises where the individual is already with another employer in H-1B status, but this employer cannot be a university/college or a non-profit government research organization.) When numbers run out, the employer must wait until the next fiscal year to file for an H-1B. In some cases, there may be no other nonimmigrant visa option for the individual and the individual may have to leave the U.S. or, at least, not be able to work for the employer until a year later.
While the H-1B numbers for the next fiscal year do not become available again until October 1, 2014, employers may file petitions to request numbers as early as six months in advance, beginning on April 1, 2014. That date signals the start of what has become an annual race to get petitions filed as early as possible to ensure acceptance before the cap of 85,000 visas is reached. The 85,000 cap includes the basic cap of 65,000, plus an additional 20,000 H-1B visas available to foreign nationals who have earned an advanced degree (master’s or higher) from a U.S. university.
As in past years, some foreign nationals are not subject to the H-1B cap, including individuals who already have been counted toward the cap in a previous year and have not been outside the United States subsequently for one year or more. Also, certain employers, such as universities, government-funded research organizations, and some non-profit entities are exempt from the H-1B cap. All other employers should be aware of the H-1B cap.
HLG encourages employers to review their hiring needs and determine whether they should initiate H-1B processing for anticipated hires, or even recent hires in other nonimmigrant status now.
You should consider filing an H-1B petition this April if:
HLG recommends that clients keep their US attorney apprised of all new hires needing H-1B status before October 1, 2014. Examples would include F-1 students hired with optional practical training that expires before April 1, 2014, or current L-1B non-immigrants who will have spent five years in that status as of any date before October 1, 2014. Contact us now if you have any questions or would like to file an H-1B petition.
Highlights of US Embassy London Webchat 29 January 2014
The following are interesting tidbits which were discussed during the US Embassy London's recent Webchat.
The entire transcript of the Webchat can be found here.
USCIS Expands Site Visits To Review of L-1 Petitions
USCIS's Fraud Detection and National Security (FDNS) Directorate has expanded its employer site visits to include review of L-1 post-adjudication petitions. Recent reports indicate that the agency is reviewing extensions of L-1 petitions and L-1 job duties and salaries to determine whether they are consistent with the L-1's classification as an executive or manager (L-1A) or specialized knowledge worker (L-1B).
USCIS may conduct announced or unannounced site visits as part of the visa petition process. Employers have been reporting that the FDNS inspectors' queries are similar to those made in H-1B site visits, particularly about whether wages are appropriate for the visa application, visa category, work location, hours, job duties, title, and experience of the employee. The employee may be questioned directly about his or her job duties.
FDNS's site visits are funded by the $500 anti-fraud fee paid with H-1B and L-1 petitions. Until recently, such compliance audits have primarily involved H-1B employers. More than 17,000 such visits occurred in FY 2011, which was an increase over 2010.
USCIS's Office of Inspector General in August recommended, among other things, that USCIS make a site visit a requirement before extending a one-year new office L-1 petition. USCIS concurred and said it expected to begin conducting post-adjudication domestic L-1 compliance site visits in FY 2014.
The report is available here.
US Embassy London now allows visa applicants to bring mobile phones with them to visa interviews
Mobile phones are no longer prohibited at American Citizen Services or visa application appointments. Applicants are still prohibited from taking large electronics to the Embassy; however, mobile phones are now permitted. Please click here for an updated list of prohibited items.
Half a million companies now participate in E-verify, USCIS announces
U.S. Citizenship and Immigration Services (USCIS) announced on January 23, 2014, that more than 500,000 companies now use E-Verify. Employers use the online E-Verify system to check an employee's work authorization status. USCIS said that 98.8 percent of work-authorized employees are confirmed "instantly or within 24 hours, requiring no further employee or employer action."
USCIS noted that its efforts to enhance the system's security include agreements with select states' departments of motor vehicles to ensure the authenticity of driver's licenses that employees use as identity documents; Self Check, which allows workers to look up their own employment eligibility status and correct their records before they seek employment; and a program that locks Social Security numbers suspected of being misused for employment eligibility verification.
E-Verify has experienced significant growth since its establishment in 1996. Annual enrolments increased tenfold during the program's first 16 years, from 11,474 in fiscal year (FY) 1996 to 111,671 in FY 2012. During FY 2013, employers used E-Verify more than 25 million times.
To commemorate the half-million-participant milestone, USCIS released "E-Verify for Business Leaders," a video that introduces the program to prospective users. USCIS also updated its E-Verify website with "plain-language" content and easy-to-follow graphics.
USCIS adds countries to participation in H-2A & H-2B programs
U.S. Citizenship and Immigration Services (USCIS) announced that the Department of Homeland Security, in consultation with the Department of State, has added Austria, Italy, Panama, and Thailand to the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs for the coming year.
The notice listing the 63 eligible countries was published January 17, 2014, in the Federal Register.
New Publications and Items of Interest
Immigration enforcement actions in FY 2012. The Department of Homeland Security has released "Immigration Enforcement Actions: 2012." The report presents information on the apprehension, detention, return, and removal of foreign nationals in fiscal year 2012. Key findings include:
Click here for the report.
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:
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