Visas – H-1b, L-1, E, O, TN

More on the H-1b cap

In the days since the USCIS announced the large number of H-1b cap petitions filed this year, numerous articles have been written on the topic discussing the need for immigration reform and an increase in the number of H-1b’s available each year. Here are a few to read:  BloombergBusinessWeek ; Computerworld; and our friend and fellow immigration attorney Cyrus Mehta published an insightful blog post on the subject.

172,500 H-1b cap cases filed

Today, the USCIS announced that they received approximately 172,500 H-1b cap petitions. The lottery was completed today and 85,000 lucky petitions were selected for further processing. The remaining 87,500 rejected petitions will be returned. We expect to start receiving receipts and rejections in the next week. Premium processing of cases is expected to start no later than April 28th.  Earlier this week, President Obama made a speech declaring how important it is for U.S. economic growth to keep the best and the brightest in the U.S. and to encourage entrepreneurship. With today’s announcement that over 50% of the best and brightest, as selected by U.S. employers, are being rejected for jobs in the U.S., it may provide the impetus for House Speaker Boehner and the Republicans in the House to stop holding CIR hostage and give appropriate consideration to the Senate bill which was passed in the summer of 2013 with wide bi-partisan support but, has not even been considered in the House.

H-1b cap reached

The USCIS has officially announced that the H-1b cap for FY 2015 has been reached and that they received a significant number of petitions for both the US masters quota and the regular quota.  They did not announce when the lottery would be held or when receipts and returns should be expected but, if past history is any indication, the process of receipts and returns will take several weeks.

H-1b lottery, CIR, and Silicon Valley

The H-1b cap filing season officially opens today and the USCIS once again expects a lottery with the end result being that literally tens of 1000′s of professionals, some of them holding US graduate degrees will be rejected and told to go home ! As this unfolds, tech leaders from the Silicon Valley have made a push in Washington to pass immigration reform emphasing the job creation that is a direct result of H-1b workers.

H-1b cap filing deadline upon us !

The H-1b cap season is in full swing with filings accepted starting Tues. April 1st. The USCIS has set up the link to it’s H-1b FY2015 page which will provide updates periodically.  The USCIS has also issued a press release reminding people that cases received during the first 5 business days will be considered as part of the lottery. Given that the DOL is taking seven days to issue a certified Labor Condition Application (LCA) and that a certified LCA is a pre-condition to filing an H-1b case, tomorrow will be the absolute last day in which an H-1b cap case can be started and be given any hope of being considered in the lottery. Some people are predicting as many as 175,000 cases may be received in the 1st 5 days this year. The USCIS also advised that the clock on premium processing cases will begin no later than April 28, 2014.  Good luck in the lottery and may the odds be ever in your favor !

L-1 Visa Statistics Released by USCIS

Pursuant to a Freedom of Information Act (FOIA) request, the USCIS last week released data regarding the adjudication of L-1 petitions. This data reveals that the denial rate of L-1 cases rose over 10% from FY 2012 to FY 2013 and in FY 2013,  an astounding 35% of all L-1 petitions filed were denied. This data covers all sectors of employment from manufacturing to  IT. Anecdotal evidence from attorneys that handle L cases for manufacturing companies, reveal an almost 100% rate of approval while those handling IT cases report a denial rate exceeding 50% and some even claim to be seeing a rate of denial as high as 75%.   The data produced from the USCIS reveals an RFE rate of over 47%. In FY 2013, the USCIS approved approximately 12,000 petitions. Contrast this to FY 2005 during which the USCIS approved over 40,000 petitions.  The practical result is that many IT projects which would be completed in the US employing a mix of L-1 and US workers and generating tax revenues, consumer spending, etc are now being completed overseas with no benefit to any US worker or the US economy. Instead of opening our arms to entrepreneurs and innovators and welcoming all jobs that benefit the US economy, our immigration policy, not dictated by Congress but,  rather dictated by the policy desires of a few is most assuredly a closed door policy.

DHS Releases Updated List of H-2a/b eligible countries

Last week, the DHS published the updated list of countries where US employers could hire H-2a or H-2b workers. The omission of India from the list prevents the use of the H-2b category for IT positions.

Filing H-1b Cap cases April 1st ?

HLG will be hosting a conference call on Feb 5th to discuss H-1b cap filings. Check out the HLG events page. To register, click here.

USCIS Releases Anti-fraud Memo

Pursuant to a FOIA request filed by a news organization, the USCIS released its current anti-fraud memo detailing procedures that examiners should follow in reviewing H-1b cases to insure that no fraud is taking place.

Federal Judge Rules Against the DOL in H-1b LCA Investigation

And they say ignorance and poor advice doesn’t pay off ! In this case it sure did. A Federal Judge ruled in favor of an IT Staffing co. and stated that they did not willfully violate the DOL’s posting regulations when they failed to post at 3rd party sites where they placed H-1b workers because they had tried to post at those sites and personnel at the company thought that trying really hard was sufficient. The ruling does NOT stand for the proposition that postings are not required at the actual worksites as the Court acknowledged that is the law. I also think it would be a mistake to think that the ruling stands for the proposition that if you try really hard that you are compliant. Rather, I think this ruling should be viewed in the context of an over-reaching DOL trying to claim bad acts i.e. willful acts when the facts supported negligence or ignorance. As any prosecutor will tell you, don’t over charge or you risk ending up with a not guilty verdict. Did the company clearly violate the DOL regulations by not posting at 3rd party worksites where their H-1b workers were placed ? yes. But, did they deserve a fine of almost $200,000 ? The Court obviously thought no and found a way to serve justice. I also think the facts in this case cry out for a legislative fix. What is the proper course of action when a customer says that, “you can’t place that notice on our premises “? In this case, the company had documented emails and letters to their customers requesting them to post the required notices and yet they were met with refusal after refusal. Many of their customers added to their level of ignorance by telling them that they did not have to post at the work-site location. Surely, the brilliant legislators in Washington can come up with a solution to this problem.  Anyone say national registry of postings ?