Employment-based visas

May 26, 2009

H-1B Cap is Still Open; New Quota Count from USCIS

According to USCIS today, the H-1B quota is still open. On May 22, 2009 USCIS reported that 45,700 H-1B applications were received as of May 18, 2009. We at Romben Law, APC believe that USCIS will continue to accept at least 20,000 more applications since the USCIS must accept more than 65,000 petitions.

In an earlier blog, I talked about why USCIS accepts more applications than there are H-1B openings. It is simply because the USCIS will reject or deny many of those applications that submitted. This makes it imperative that H-1B applicants submits more than just a skeletal or minimal application to the USCIS. If you want to submit a successful and strong H-1B case, you need to make sure that your petition is well prepared, complete, and that you have chosen the best applicant for the position or if you are the applicant, you have chosen the best employer for your case.

When the H-1B season began in February and March, no one expected that the H-1B filing window would be open this late in the season. Many have speculated that the dampened economy has resulted in fewer job offers. Unemployment rates are also a factor. Perhaps less applications were made this year because USCIS has been cracking down on “fraudulent” visa applications, or it’s because deportation enforcement is at an all-time high. Regardless, what we know to be true is this: only 45,700 applications have been received this year.

May 5, 2009

H-1B Count – Update on the Numbers Available: May 4, 2009

by Romben Law, APC

US Citizenship and Immigration Services (USCIS) issued a press release on May 4, 2009 confirming that only 45,000 H-1B petitions have been received out of an allotted 65,000 available this Fiscal Year 2010 for people holding Bachelor’s degrees. USCIS also announced that they are still accepting applications to be counted toward the Advanced Degree (US Master’s) cap.

Many people were anticipating that the H-1B filing window would be closed within the first week after April 1, 2009. Without a doubt, the decrease in H-1B applications we see today is due to the global economic crisis and high unemployment rates.

Years ago, the H-1B quota was rarely reached because the cap was 195,000 per fiscal year. Applicants and their employers had the opportunity to file H-1B applications year-round. Today’s cap of 65,000 plus 20,000 advanced degree H-1Bs is less than half of what used to be allocated!

May 4, 2009

Waiver Appointments at Ciudad Juarez, México

by Romben Law, APC

Romben Law, APC has been informed that the US Consulate-General at Ciudad Juárez is modifying the way it processes waivers. Immigrant visa applicants who seek a waiver of a ground of inadmissibility at Ciudad Juárez, México should expect to wait at least two months for the waiver interview. Our Los Angeles clientele includes many Méxican nationals, and those who to Mexico.jpg are applying for waivers will experience this delay and should plan accordingly.

Because applicants have flooded the Consulate with requests for waivers, and because many of those applicants do not even qualify for the waiver in the first place, the immigrant visa unit at the Consulate has been inundated. The result has been (a) the imposition of a 48-hour waiting period before an applicant can even telephone to make a waiver interview appointment, and (b) a wait of at least two months for the appointment.

Applicants should make plans in advance, because unless an applicant has a valid visa, it is unlikely that an applicant can return to the USA prior to the waiver interview. That means that applicants will need to anticipate an extended stay in México, until the waiver is granted. Further, because of safety considerations, applicants may wish to pass that waiting time in a city other than Juárez. If you have questions about how waivers work and whether you qualify, please feel free to contact us. –jcf

April 23, 2009

USCIS Confirms H-1B Cap Count, the Quota is Still Open for Regular and Advanced Degree Cases

by Romben Law, APC

The USCIS (CIS) confirmed that the H-1B quota remains open. About a week ago, CIS issued an update on the count against the H-1B cap, stating that about 43,000 applications were received. This week, CIS confirms that they have received only one-thousand more applications.

For advanced degree applicants, there is still time to file an H-1B since the CIS will still accept cases even though they have already received 20,000 cases. CIS accepts more cases than the quota cap because many cases will be rejected or denied. So far, no lottery has been announced for either cap.

In the last several fiscal years, the CIS has had to use a lottery method to randomly choose cases for H-1B consideration. Given the current economic climate with unemployment rates at historic highs, it’s natural to see this year’s quota remain open. We won’t know when the quota will get filled, but I have discussed the H-1B quota and the method that CIS will use to determine the last date that they will accept cases. For those of you who are job seekers, you have just been given more time to find an employer! Good luck!

April 22, 2009

H-1B Cap: When is The Last Day to File? H-1B Lottery Clarification

by Romben Law, APC

Many people have been calling our office to ask “when is the last day I can file an H-1B?” The US Citizenship and Immigration Service (USCIS) has clarified how they will determine the “last receipt date” for an H-1B. Initially, the USCIS stated that if a sufficient number of applications were received during the first 2 days of April, USCIS would conduct a random lottery of all H-1B applications filed in the first 5 business days of April, that critical date being April 7, 2009. USCIS was to include all applications filed on or before April 7, 2009 in a random lottery selection process.

However, the USCIS did not receive enough cases to fill the regular H-1B quota by the end of the day on April 7. Therefore H-1B applications are still acceptable until USCIS determines when will be the final date for filing applications. This date is called the “last receipt date.”

USCIS does not announce the “last receipt date” in advance. Instead, USCIS will announce the “last receipt date” after the date passes. Then USCIS will conduct a random lottery of all those cases received on that date.

April 22, 2009

Labor Certification (PERM) Processing Times

by Romben Law, APC

Everyone has noticed how painfully slow labor certification (PERM) cases have become. What was normally about a 45- 60 day adjudication period has now stretched out to 7- 9 months, on average. Last week, the Dept. of Labor (DOL) announced that as of mid-March, they were working on cases that were originally filed in July 2008, and these are cases that were not selected for an audit.

A grim confirmation for cases that in the audit queue: DOL confirmed they are now working on initial filing dates from September 2007. Finally, for cases awaiting a response on appeal: the DOL is working on cases with a priority date of June 2007.

Gone are the days of re-filing PERM cases within a few months in case of a denial. If it is taking 9 months for an initial adjudication and another 12 months for DOL’s response to an audit response, applicants and employers will end up waiting over 18 months to find out if their PERM case is successful or not. If your PERM case is denied, you will not know until 18 months after your initial filing! Employers will have to conduct new advertisng and recruitment which means yes, starting from scratch.

April 9, 2009

May Visa Bulletin: EB-2 Stays Current, EB-3 Now Unavailable (U)

by Romben Law, APC

The May Visa Bulletin shows that all employment-based third preference (EB-3) category visas are listed as “U,” or “unavailable.” This means that the USCIS cannot issue any immigrant visas (greencards) to people who are being sponsored under the EB-3 category until next October, when the new fiscal year begins and when immigrant visa numbers are replenished. This will affect hundreds of thousands of applicants who have been waiting for their greencard cases to become “current” for several years. Some applicants have been waiting since 2001 and even longer! What many applicants do not realize is that they could be eligible for an EB-2 or “second preference” category greencard if they meet certain requirements. Most people who are eligible for the EB-2 category are people who hold a master’s degree but some applicants who have more than 5 years of experience in their field may also qualify.

You should contact an immigration visa attorney if you believe you are eligible for an EB-2 category greencard application. Experienced immigration attorneys who regularly represent employers in the labor certification process (PERM) can identify strong second preference greencard cases. Although this is considered a more difficult case to present to the Department of Labor and to the USCIS, the benefits are immense. Instead of waiting 7 or more years for a greencard through the EB-3 category, waiting times under the EB-2 category can be reduced to 2-3 years, possibly less if you use a competent immigration attorney.

I am most proud of a case involving a professional worker who had many years of experience in her field of work. Even though she did not have a Master’s degree, we decided to pursue a more difficult EB-2 PERM case because one of her children was turning 21 years old within the year. If we chose the EB-3 route, this child would be considered “aged-out” upon her 21st birthday and that child would never derive a greencard from her mother’s petition. We decided to take a chance on the more difficult PERM case and earlier this year, the entire family (eldest child included) received their greencards thanks to our decision to file the EB-2 case and also because we benefitted from the Child Status Protection Act (CSPA) which can “freeze” a child’s age for immigration purposes.

April 9, 2009

H-1B Visa Quota Not Reached

by Romben Law, APC

US Citizenship and Immigration Service (USCIS) announced the H-1B cap count today. More than 20,000 H-1B slots are still open in the regular H-1B quota. There is still time to file an H-1B application! For those holding a US Master’s degree, USCIS announced receipt of approximately 20,000 advanced degree cases, but they will continue to accept more cases because many of the cases already received will not be approved. USCIS expects that many of the regular H-1B cases already filed will also be denied. This says a lot about the chances for an H-1B approval even when an application is accepted without going through a lottery.

We don’t know how long it will take to reach the cap, so If you want to file an H-1B, hire an immigration visa attorney now. I have seen many H-1B applicants file their own cases to save time or money. There is nothing more heartbreaking than seeing someone who has “won” the H-1B lottery only to lose their case because it was badly prepared either by themselves, an immigration consultant, or by a lawyer who did not know how to submit an approvable H-1B case.

In general, cases that are marginal will usually receive a Request for Evidence or “RFE” to give the applicant a chance to prove why their case should be approved. If you receive an RFE on your case, you need hire a competent immigration visa attorney even if he or she did not prepare your original case.

April 8, 2009

Have you Received an H-1B Receipt Notice from Premium Processing yet?

by Romben Law, APC

Since the USCIS has received less than the maximum number of cases it can accept, employers and applicants who opted for premium processing to get an expedited response for H-1B status will begin receiving receipt notices dated April 7, 2009, which will be counted as the first day in the 15 day period.

The USCIS did send out a few receipt notices dated last week. It is confirmed that those receipt notices are invalid and issued as a mistake. If you received a receipt notice dated before April 7, 2009, call an immigration attorney to make sure that your case receives a proper receipt notice. Receipt notices that were issued by the USCIS by mistake will not be honored.

Applicants whose H-1Bs are being premium processed will begin receiving notification of an approval or a Request for Evidence (RFE) in the next 15 calendar days. RFEs mean that your case may not be approvable and you’ll need to prove to the USCIS that your case has merit. It is very important for you to find an H-1B immigration visa attorney to respond to the RFE. You will only have 30-84 days to respond.

March 24, 2009

H-1B Lottery: Random Selection Process Anticipated for H-1B Quota

by Romben Law, APC

The US Citizenship and Immigration Service (USCIS) published a confirmation of how the H-1B lottery will be conducted this year. It is anticipated that the quota will fill up in the first few days after the initial filing date of April 1, 2009. CIS has confirmed that if the agency receives enough cases to fill the cap within the first 5 business days in April, then the “lottery” will based on all applications that were received between April 1 through April 7.

CIS has also indicated that those cases selected in the lottery will have the same receipt date. This means that there should be no difference in how your H-1B case will be considered as long as your case is submitted on or before April 7, 2009.

If the CIS receives an insufficient number of H-1B applications within the first 5 business days of April, CIS will continue to accept petitions until the day which the agency determines that enough applications ahve finally been received. If that is the case, then CIS will conduct a lottery for those cases that are received on the last receipt date.