April 2013 Newsletter
In This Issue
H-1B Filing for FY 2014 Starts April 1
H-1B filing for fiscal year 2014 started on April 1, 2013. To facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013.
Companies should file H-1B petitions now, and evaluate their anticipated hiring needs for H-1B professionals (specifically, those requiring initial H-1B visas) for the 12-month period beginning on October 1, 2013. That is the date on which new H-1B visas become available under the annual cap. Employers can file H-1B petitions no earlier than six months in advance of the anticipated start date, so April 1, 2013, 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.
The H-1B cap for fiscal year 2013 was reached in June 2012. The pace of hiring this year means that the demand for new H-1B workers could result in the new cap being reached in early April. 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 nonprofit entities are exempt from the H-1B cap. All other employers should be aware of the H-1B cap.
Please keep Hodkinson Law Group apprised of all new hires who will need 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 nonimmigrants who will have spent five years in that status as of any date before October 1, 2014.
U.S. Citizenship and Immigration Services (USCIS) said it anticipates receiving more petitions than the H-1B cap between April 1 and April 5, 2013. If 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. 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. The lottery for the H-1B cap was last used in April 2008.
USCIS noted that filers of H-1B cap cases may continue to request premium processing concurrently. Due to "historic" premium processing levels, combined with the possibility that the H-1B cap will be met quickly, USCIS said it has temporarily adjusted its current premium processing practice. As noted above, to facilitate the prioritized data entry of cap-subject petitions requesting premium processing, USCIS will begin premium processing for H-1B cap cases on April 15, 2013, even if they are filed earlier.
USCIS' announcement is available here.
A related announcement on premium processing for H-1B cap-subject petitions is available here.
No Wages Due if H-1B Employee Is Voluntarily Nonproductive, ALJ Finds
The Department of Labor's Office of Administrative Law Judges recently found that North Shore School for the Arts (NSSA) did not owe an H-1B nonimmigrant employee back pay for voluntarily nonproductive "work" time. NSSA had employed Natsuko Imai as a piano/music teacher for 20 hours per week at a wage rate of $40 per hour.
Among other things, an NSSA representative stated that Ms. Imai took some students into her own private studio rather than continuing to work with them as NSSA students, which was against NSSA policy. The representative also stated that Ms. Imai was uncooperative in working to get more students. The representative made suggestions for doing so that Ms. Imai rejected. Despite claims to the contrary, Ms. Imai was trying to get into graduate school and spent much of her time practicing piano rather than teaching or performing related outreach duties.
Administrative Law Judge (ALJ) Stephen M. Reilly noted that wages are to be paid for nonproductive time if the employee is "ready, willing, and able" to work and the nonproductive time resulted from a decision of the employer. He found Ms. Imai's testimony "rife with evasiveness, equivocation and forgetfulness." He said that her demeanour during testimony "raised questions regarding her truthfulness." He also found her disregard of the law "troubling" because she admitted to working while on an F-1 student visa and also to working outside NSSA while she was in H-1B status, which are violations. She further admitted that she did not report income for tax purposes. She said she knew these actions were against the law when she did them. ALJ Reilly gave her testimony "little weight" because of these factors and her evasive answers. For example, the ALJ noted that she said that obtaining a doctoral degree was not her plan, but acknowledged that she had applied to doctoral programs and sought and obtained several recommendations for that purpose.
ALJ Reilly also noted that although Ms. Imai spent long hours at the school, her focus was on practicing the piano, not teaching or performing her job duties. He found that Ms. Imai did not make herself available to perform her job duties and thus was not ready, willing, and able to work. The ALJ did not hold the NSSA's representative blameless either, stating that she was "blinded to reality." ALJ Reilly found the employer responsible for back pay for work performed (74.5 hours plus interest, for a total of $2,980), but not for the hours in dispute during which Ms. Imai was not performing work.
The case is available here.
Changes in U.S. Passport Information Services at U.S. Embassy, London
On April 2, 2013, the telephone service of the US Passport Unit at the U.S. Embassy, London – Passport Unit was replaced by an expanded email information service. This will enable the unit to provide faster, more comprehensive service. If you wish to renew a passport, register the birth of your child, add extra pages to a passport, or ask a question about citizenship, you can email the Consular Information Unit 24 hours a day, 7 days a week, and they will respond to your inquiry as soon as possible during office hours, 8:00 am to 5:00 pm, Monday through Friday. You will find further detailed information concerning this new service here.
Changes to Form I-94
Customs and Border Protection (CBP) notice of interim final rule which will add a new definition or the term “Form I-94” and also transition to an automated process whereby DHS will create a Form I-94 in an electronic format and will eliminate the paper Form I-94. CBP has published an interim final rule in the Federal Register to automate Form I-94, Arrival/Departure Record. Form I-94 provides nonimmigrants evidence that they have been lawfully admitted to the United States. The interim final rule, effective on April 26, 2013, streamlines the admissions process for nonimmigrants arriving to the United States. Affected nonimmigrants travelling to the United States by air or sea will no longer need to fill out a paper Form I-94. Instead of receiving a paper I-94 on entry, foreign nationals will be able to visit a government website to print out an I-94 that can be used to demonstrate their lawful status and period of admission. However, individuals who go through secondary inspection, such as asylees, refugees, and parolees, will be provided a paper copy of Form I-94 by a CBP officer.
New Publications and Items of Interest
2012 statistics on U.S. legal permanent residents. The Department of Homeland Security has released "U.S. Legal Permanent Residents: 2012." The report notes that in 2012, a total of 1,031,631 persons became legal permanent residents (LPRs) of the United States. The majority (53 percent) already lived in the country when they were granted lawful permanent resident status. Nearly 66 percent received it based on a family relationship with a U.S. citizen or LPR. The leading countries of birth of new LPRs were Mexico (14 percent), China (7.9 percent), and India (6.4 percent). The report is available here.
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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