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The H-1B “cap” of 65,000 was reached back in November of 2011, preventing employers from hiring any H-1B professionals until October 1, 2012. As the economy continues to pick up, it is anticipated that the cap will be reached even earlier this year. Fluctuations in the job market determine when the 65,000 visas are used up during any given year. For example, In 2007, just prior to the downturn in the economy, the 65,000 cap was reached on the first day that petitions could be filed (April 2, 2007). In the past two years, the cap was reached much later than April 1st due to the weak economy.
What does this mean for employers? Simply put, employers should file on April 1, 2012 for the H-1B employee to start work on October 1, 2012. This is the earliest possible date to file to get the earliest employee start date of October 1, 2012.
What does this mean for potential H-1B employees? If you have an employer who wants to file an H-1B petition on your behalf, you should begin collecting your documents and finalizing any employment offers or agreements with your employer.
Because extensive documentation is necessary to successfully file an H-1B petition, both employers and employees should retain an Immigration attorney and begin compiling the required documents as soon as possible. For employers, this means, among other things, drafting an appropriate job description, finalizing any offer of employment, compiling company information and determining the wage to be paid. For employees, this means collecting your education and immigration related information, including copies of your passport and current I-94; your resume; copies of your degrees and transcripts; letters from previous employers confirming your dates of employment, your job title, job duties, special skills used/learned and any tools used in your job. ( You should obtain these any way for possible use in a labor certification application.)
Those employees who are currently in OPT status that expires prior to October 1st can take advantage of “cap gap” measures to extend their OPT status (F-1) and work authorization until the change of status to H-1B takes effect on October 1st. There are certain restrictions, however, so it is important to make sure that petitions are timely filed and that the H-1B employer is aware of the filing deadlines. An Immigration attorney can help clarify this for you.
U.S. Citizenship and Immigration Services (USCIS) announced on Wednesday, November 23rd, that it had received enough H-1B petitions to reach the cap of 65,000 for fiscal year (FY)2012. According to USCIS, Nov. 22, 2011, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2012 (October 1, 2011 – September 30, 2012). Any petition physically received (not postmarked) after November 22, 2011 will be rejected by USCIS. Petitions that are otherwise exempt from the cap (institutions of higher education, for example) will continue to be accepted.
Employers who were counting on being able to utilize this program to grow their businesses, creating jobs for Americans in this time of high unemployment, are out of luck until October 1, 2012. Employers may apply on April 1, 2012, for an H-1B worker to start October 1, 2012.
Many in the business commnunity across the United States have been vocal about this artificial barrier put up to “protect the U.S. labor force.” In fact, if there were enough American workers who were willing and able to take these jobs, we would not need this program. It is often cited, however, that the United States workers lack the education and level of competence necessary to fill these positions. Our congressional representatives tell us that it is a matter of improving our education system.
Frankly, my clients do not have the 20 years (at least) that it will take to see any results from any kind of education reform, whatever that may be. They need to fill these positions now with qualified workers, no matter what their country of origin. Without the ability to hire qualified workers, this country will be faced with two consequences: 1) The best and the brightest students will not come here to study because they won’t have a job here when they graduate; and 2) employers will leave the U.S. because they cannot find suitable employees.
Over the past six months, the Department of Homeland Security and ICE ( Investigations and Customs Enforcement) have issued new policy changes to attempt to eliminate the backlog of immigration cases now pending in the Immigration Courts. Generally, the changes involve removing “high priority” individuals such as those with serious criminal convictions and those who have been previously removed from the United States, and putting on hold the cases of “low priority” individuals such as those with no criminal records or minor immigration violations.
Specifically, ICE Director John Morton issued a Memo on June 17, 2011 outlining the new policy changes. Since that time, members of ICE’s senior leadership team have traveled around the country to discuss implementing these changes in a uniform manner around the country. Training of all ICE enforcement officers and attorneys nationwide is expected to be completed by January 13, 2012.
ICE will be reviewing approximately 300,000 cases that are pending in the Immigration Courts. According to the Guidance issued by ICE today, “beginning immediately, ICE attorneys nationwide will review all incoming cases in immigration court. This review, based on the Prosecutorial Discretion Memorandum and guided by a set of more focused criteria, will help reduce inefficiencies that delay the removal of criminal aliens and other priority cases by preventing new low priority cases from clogging the immigration court dockets.”
The remainder of the cases pending nationwide will be reviewed in a gradually phased in process. According to ICE, “beginning December 4, DHS and DOJ will launch pilot programs in two jurisdictions to test run the process for reviewing all cases pending in immigration court. There will be a “test run” of the process in Baltimore and Denver. This second initial phase of review is also expected to be complete by January 13, 2012.
After this initial two month period, DHS will review that data and other results of the initial review and, where appropriate, consult with the Department of Justice, who administers the Immigration Courts and Judges, to determine the best ways to put these changes into effect nationwide. During the entire period of this review, ICE attorneys, officers, and agents will be applying the policies and principles of Prosecutorial Discretion that were set forth in the June 17, 2011 memo.
So what is “prosecutorial discretion,” anyway? The term “prosecutorial discretion” in this situation means that the attorneys who represent ICE in the Immigration Courts, who prosecute all of the removal cases, will be allowed to use their judgment and authority to put a case temporarily “on hold”, while they better use their resources to prosecute those whose cases should go forward for removal from the U.S. Whether a case will be temporarily closed will depend on the facts and circumstances of each case. It is important to note that “closing” the case does not mean the case is “terminated.” The temporary closure will not give an individual any “status” in the U.S. and does not guarantee that at some future time a case won’t be put back on the court calendar. However, an individual whose case is temporarily closed may be eligible for work authorization during the period of time the case is closed.
If you or someone you know has a pending case in the Immigration Court, and you think you may benefit from “prosecutorial discretion”, contact an Immigration Attorney who can determine whether to make this request with ICE. Do not be fooled by any scams that claim to be able to get “legal status” for you or a work permit. Consult a licensed Immigration Attorney to be sure.
As of October 21, 2011, USCIS has received approximately 46, 200 H-1B petitions subject to the cap of 65,000 for the fiscal year 2012 (October 2, 2011-September 30, 2012). This leaves less than 20,000 H-1B visas available for the remainder of the current fiscal year. It is expected that the cap will be reached sometime in December, 2011, much sooner than expected. Any employers considering filing an H-1B petition for a specialty worker should act now before the cap is reached.
Masters Cap Reached!
The 20,000 visas available under the “Masters Cap”, for those foreign nationals who have obtained a Masters Degree or higher from a U.S. college or university, has been reached. Any petitions for foreign nationals with U.S. advanced degrees will now be counted toward the regular cap of 65,000.
As of 9/23/11, USCIS has received approximately 36,300 petitions to be counted toward the cap of 65,000. In addition, 17,700 H-1B petitions have been received that apply to the “Masters Cap” of 20,000 for aliens with advanced degrees.
As of September 9, 2011, USCIS has received approximately 32,200 H-1B petitions that are subject to the annual cap of 65,000. USCIS has also received 16,700 H-1B petitions out of 20,000 “exempt” visas under the “Masters Cap”.
DHS has created a working group to review 300,000 removal cases currently pending in the Immigration Courts, the Board of Immigration Appeals and the Federal Circuit courts, to temporarily close and provide work authorization to those individuals who are determined to be a “low priority” for removal from the United States.
These cases will not be terminated, they will only be administratively closed. That means that the case is only taken off the court calendar. The removal case does not go away, it is just temporarily closed. The case can be restored to the court calendar at any time, and the removal proceeding may continue after it is restored to the calendar.
Individuals whose cases have been administratively closed will be eligible to apply for temporary work authorization. Details of the work authorization process for these cases have not yet been formulated.
What are “low priority” cases?
-veterans
-long-time permanent residents
-minors and the elderly
-individuals who have been present since childhood
-individuals with serious disabilities or health issues
-women who are nursing or pregnant
-victims of domestic violence or other serious crimes
WARNING: DO NOT BE FOOLED BY ANYONE WHO SAYS THAT THIS IS AN AMNESTY, OR WHO OFFERS TO PLACE YOU OR SOMEONE YOU KNOW INTO REMOVAL PROCEEDINGS IN ORDER TO GET A WORK PERMIT.
If you are placed in removal proceedings, you can be deported from the United States, even if your case has been “administratively closed” and even if you have work authorization! This case review will not affect the millions of undocumented people who are not currently in any kind of removal proceeding.
If you think you may be eligible for temporary closure of your case, or if you have any questions as to whether you or someone you know qualifies for this temporary relief, contact us at Ames Immigration so you can get honest answers and sound advice.
April 1, 2011 marked the “opening day” of the “H-1B season” for the next fiscal year which starts on October 2, 2011. As of May 6, 2011, USCIS had received a total of 10,200 petitions toward the cap of 65,000. Also as of May 6, USCIS had received 7,300 petitions to be counted toward the “Masters Cap” of 20,000. The “Masters Cap” provides an additional 20,000 H-1B visas not counted toward the 65,000 cap for foreign nationals who have a Masters Degree or Higher from a U.S. institution.
Some employers are “cap exempt” such as nonprofit research companies or other nonprofit employers “affiliated” with an institution of higher learning. Whether an employer is “cap exempt” has become a troublesome issue for USCIS. Employers must be able to prove through sufficient documentation that they are in fact “exempt” from the cap, and must be prepared to respond to a Request for Further Evidence if their initial evidence is not convincing.
In another new twist, USCIS has added Part 6 to Form I-129 concerning the use of controlled technology and the deemed export rule. There can be serious consequences for a failure to disclose the necessity for an “export license”. All employers, whether or not they are subject to the export licensing rules, must answer the question posed in Part 6. This issue definitely requires legal analysis that should be provided either by a competent attorney in this field or other consultant hired by the employer to give the correct answer to Part 6 of the form.
The Department of Homeland Security has eliminated the NSEERS (National Security Entry-Exit Registration System). Also called “special registration”, the program required nationals or citizens from various countries to “register” with Homeland Security upon entry and exit from the United States with any nonimmigrant visa, including the visa waiver.
The following is taken from the Summary in the Federal Register announcing elimination of the program.
“SUMMARY: The Department of Homeland Security (DHS) is eliminating redundant programs by removing the following countries from, and relieving nonimmigrant nationals or citizens of the following countries from compliance with, the special registration procedures under the
National Security Entry-Exit Registration System (NSEERS):
Afghanistan, Algeria, Bahrain, Bangladesh, Egypt, Eritrea, Indonesia,
Iran, Iraq, Jordan, Kuwait, Lebanon, Libya, Morocco, North Korea, Oman, Pakistan, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Tunisia, United Arab Emirates, and Yemen. Over the past six years, the Department of Homeland Security (DHS) has implemented several new automated systems that capture arrival and exit information on nonimmigrant travelers to the United States, and DHS has determined that recapturing this data manually when a nonimmigrant is seeking admission to the United States is redundant and no longer provides any increase in security. DHS, therefore, has determined that it is no longer necessary to subject national from these countries to special registration procedures, and this notice deletes all currently designated
countries from NSEERS compliance.
DATES: Effective Date: This notice is
effective April 28, 2011. ”
76 FR 23830
The NSEERS program failed to capture any terrorists and was a trap for the unwary nonimmigrant visa holder who could be subsequently denied immigration benefits for failing to register. especially in airports where there was no set procedure for registering a departure from the U.S. This is good news for our international visitors and temporary workers.
USCIS announced on January 27, 2011 that it had received more than the 65,000 visas allowed under the H-1B “cap” and that on December 22, 2010, more than 20,000 petitions had been received for beneficiaries with a Masters degree or higher from a U.S. college or university.
This means that employers seeking to hire new H-1B employees must wait until April 1, 2011 to submit H-1B petitions that will be approved for an employment start date of October 1, 2011 (the start of the new fiscal year). The cap does not apply to those who are already in H-1B status and wish to extend or amend that status. The cap also does not apply to employers who are “exempt”, such as nonprofit research institutions and others.
If you are an employer or an H-1B employee who is unsure whether or not you are subject to the cap, call our offices for a consultation to explore your options.
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