FY 2008 H-1B Cap Update
On April 12, 2007, the United States
Citizenship and Immigration Services (USCIS)
conducted its computer-generated random selection
process to determine which H-1B petitions would fall
under the cap for fiscal year 2008. The H-1B
petitions that were accepted for adjudication will
receive a receipt notice. All other petitions, along
with any enclosed fees, will be returned to the
petition’s authorized representative. The total
process is expected to take four weeks. For cases
initially filed with premium processing, the
guaranteed 15 calendar day processing time started
on April 12, the day the H-1B petitions were
randomly selected. USCIS Associate Director Michael
Aytes has confirmed that the only way for an H-1B
petition to be included is through the random
selection process.
The USCIS also confirmed that of as of April 21,
2007, they have received 18,649 H-1B U.S. Master’s
degree cases. Although the cap is still open
for H-1B petitions filed on behalf of holders of
Master’s degrees (or higher) from U.S. universities,
the limit of 20,000 will likely be met very shortly.
Foreign nationals who wish to submit evidence of
their Master’s degree completion (but who do not yet
have a degree) must provide a letter from the office
of the Dean or its equivalent, as proof that the
foreign national has completed all the degree
requirements. Employers and foreign nationals should
be mindful that use of such documentation when the
student has not yet completed the program could be
considered fraudulent and may result in the loss of
the client’s chance at a slot in the U.S. Master’s
cap, since the petition would be denied on the basis
of ineligibility at the time of filing.
High Tech Worker
Relief Act
On April 11, 2007, Senator Chuck Hagel (R-NE)
introduced the “High-Tech Worker Relief Act of 2007” to the
U.S. Congress. This Act was introduced to provide relief for
those employers that were unable to file H-1B applications
before the Fiscal Year 2008 H-1B cap closed and also those
that wish to employ individuals with advanced degrees from
U.S. universities.
If passed, the Act would make an additional 130,000 H-1B
visas available for Fiscal Year 2008. The Act would also
eliminate the H-1B cap altogether for individuals that have
obtained a Master’s degree at a U.S. university. In
addition, it would eliminate retrogression of immigrant
visas (i.e. green card applications) for individuals that
have obtained a Master’s degree at a U.S. university in the
fields of science, technology, engineering, or mathematics,
and have been working in a related field for the past three
years.
Extension of
Filing Time for O and P Visas
As of April 16, 2007, employers may now request
an O or P nonimmigrant petition for a foreign worker
with extraordinary ability up to a year in advance
of a scheduled event, competition or performance.
Previously, employers were allowed to bring these
foreign workers into the United States only six
months in advance of their approaching event. With
only a six month filing window, case processing was
not always completed until after the worker was
needed at the event.
The O
temporary worker visa status is designated for individuals
of extraordinary ability in the sciences, education,
business, arts or athletics and individuals of extraordinary
achievement in the motion picture and television industries.
O visas are valid initially for up to 3 years, with the
possibility of additional extensions in one year increments
to continue the same work.
The P visa is reserved for those aliens
who will be coming to the United States to perform in
athletics or entertainment, and who do not meet the
extraordinary ability standard required for classification
in the O category. The category covers alien athletes who
compete individually or as part of a team at an
internationally recognized level. Also included are aliens
who perform with or are an essential part of the performance
of an entertainment group that has received international
recognition.
May 2007 Visa
Bulletin Shows Significant Forward Movement in EB-3 Preference
Category
After months of little to no advancement
in the priority dates published by the U.S. Department of
State (DOS) in its Visa Bulletin, the May 2007 bulletin
shows an astounding leap of one year in the third
employment-based preference category (EB-3) for nationals
from the Philippines and from all other countries except for
China, India, and Mexico. Both entries moved from August 1,
2002 to August 1, 2003.
The DOS confirms that the U.S. Department of Labor (DOL) has
been clearing its backlog of labor certification
applications at a much slower pace than expected; thus, the
massive demand forecasted in late 2006 has not materialized.
The advancement of these two entries is a method of testing
the level of response. If the resulting demand is not
overwhelming, the DOS projects that movement can also be
expected for nationals of China, India, and Mexico sometime
in the upcoming months.
|
Employment-
Based |
All Chargeability Areas Except
Those Listed |
China |
India |
Mexico |
Philippines |
|
1st |
C |
C |
C |
C |
C |
|
2nd |
C |
22APR05
|
08JAN03 |
C |
C |
|
3rd |
01AUG03 |
01AUG02 |
08MAY01
|
15MAY01
|
01AUG03 |
USCIS Announces
Flexible Response Times for Notices of Intent to Deny and
Requests of Evidence
The Starting June 16, 2007 the USCIS will
be implementing a Final Rule of “Removal of the Standardized
Request for Evidence Processing Timeframe” to the Federal
Registrar. This rule was proposed on November 30, 2004, in
an attempt to eliminate the established requirements and
fixed times for a Request for Evidence (RFE) and a Notice of
Intent to Deny (NOID). RFEs and NOIDs are issued by the
USCIS when it is determined that the evidence submitted with
the application or petition does not establish eligibility
for the requested case.
This new ruling has established that the maximum response
time will stay at 12 weeks for RFEs and 30 days for NOIDs.
This new rule will not permit extensions of the response
time to be submitted as evidence beyond USCIS specified
deadlines. Although the maximum response time will remain at
12 weeks, the rule will amend the Department of Homeland
Security’s regulations by giving the USCIS flexibility in
setting an appropriate length of time. If an applicant or
petitioner does not respond in a timely manner to an RFE or
NOID, the USCIS reserves the right to deny the case.
I-693
Examinations: Tuberculosis Skin Testing Suggested
The American Immigration Lawyers’ Association (AILA)
recently announced that the USCIS has been issuing Requests
for Evidence (RFEs) on many recent I-693 filings. The I-693
is the form completed by a civil surgeon and filed with the
USCIS in connection with I-485 filings pursuant to pending
Green Card cases. The recent RFEs have reportedly been
explicitly directing I-485 applicants to re-visit their
civil surgeons for tuberculosis skin tests.
AILA’s release notes that I-485 applicants 2 years of age or
older are required to obtain a tuberculosis skin test by the
U.S. Department of Health and Human Services.
Any individual about to prepare their I-485 will also be
undergoing an I-693 examination as required. While doctors
often utilize an X-ray test in lieu of the skin test, the
USCIS’ recent actions indicate that this may not be
sufficient and individuals should choose to request a full
tuberculosis skin test from their examining civil surgeon.
Individuals who have recently obtained I-693 evaluations
which did NOT include a tuberculosis skin test may choose to
undergo such testing before filing and to include evidence
of the testing with their I-485 filings.
Requesting and undergoing the tuberculosis skin test should
not unduly delay I-693 preparations and greatly reduces the
chances that the USCIS will issue an RFE relating to the
I-485 filing.
FYI…RECENT PERM
STATISTICS
The DOL has published a fact sheet providing
statistics on PERM processing between 3/28/2005 and
3/2/2007. Some highlights include:
§
Total applications received since March 28,
2005 is 182,411. Of the 171,750 cases completed, 75% were
certified, 22% denied, and 3% were withdrawn.
§
Approximately 28,000 cases were certified
during the first quarter of fiscal year 2007. The top 5
states of intended employment for these permanent labor
certification were California
(5,494), New York (3,508), New Jersey (2,633), Florida
(2,021), and Texas (1,873).
§
Distribution of active cases is: 40% Appeals,
33% Final review, 20% Audit Review, and 7% Sponsorship.
§
Alien beneficiaries representing 160 different
countries were certified for permanent employment in the
U.S. The top 10 countries of citizenship of alien
beneficiaries included India
(8,354), China (2,170), Mexico (1,891), South Korea (1,507),
Canada (1,474), Philippines (1,340), Ecuador (621), United
Kingdom (595), Brazil (594), and Colombia (544).
§
Top 10 job titles certified for permanent
employment included Computer Software Engineers (5,066),
Computer Systems Analysts (1,469), Restaurant Cooks (887),
Electronics Engineers (741),
Computer and Information System Managers (680), Financial
Analysts (635), Market Research Analysts (507), Electrical
Engineers (488), Computer Programmers, (482), and Mechanical
Engineers (407).