United States: GAO Conducts Study on H-1B Program, Seeks Employer Participants

The U.S. Government Accountability Office (GAO) is currently conducting a study of the H-1B program and is seeking interviews with some H-1B employers to gather information on their use of the program. In the last several weeks, organizations in a variety of industries have been contacted by GAO staff members asking for their participation in the study. Involvement in the study is voluntary.

According to information provided by GAO officials, the study is being conducted as part of a forthcoming report to Congress on the impact of the H-1B cap on the competitiveness of U.S. technology companies. The report will apparently focus the effect of the cap on costs facing U.S. technology companies, the ability to recruit top talent, incentives to outsource jobs overseas, and incentives to invest in research and development in the United States.

Employers selected for the study are typically contacted by phone and asked whether they are willing to be interviewed. The initial phone contact is usually followed by an e-mail that describes the function of the GAO generally and the objective of the study. In some cases, employers may also be provided with a list of questions about their workforce and H-1B employees, including:

• The number of U.S. employees;
• The number of current and past H-1B workers;
• The occupations or fields in which H-1B foreign nationals are employed and the percentage of H-1B employees in these occupations or fields;
• The source of the employer’s H-1B workers, including whether current H-1B employees were already living in the United States when hired and whether the employer primarily hires H-1B workers after their graduation from U.S. universities or as lateral H-1B hires from other U.S. employers;
• The percentage of the employer’s current and former H-1B workers who have degrees from U.S. universities; and
• If the employer is engaged in research and/or product development, the number of employees engaged in this work and the number of R&D or product development staff who are current or former H-1B workers.

Apparently, these questions are for discussion only and do not require a written response. The GAO has stated that it does not expect exact numbers in response to the questions.

Fragomen is monitoring the roll-out of the GAO study and will provide additional updates as developments occur. If you have any questions about the study, please contact your designated Fragomen professional.

Source: Fragomen

United States: H-1B Cap Numbers Remain Available, But Rate of Filings Increases

H-1B cap numbers remain available for employment in Fiscal Year 2011 but the rate of petition filings has increased sharply, as the latest cap statistics from U.S. Citizenship and Immigration Services (USCIS) show. As of April 22, the agency had received 16,025 filings against the 65,000 standard cap and 6,739 filings against the cap exemption of 20,000 for holders of U.S. advanced degrees, for a total of 22,764 filings. This is an increase of 3,364 cap-subject petitions since the last count on April 15, and represents a much bigger uptick in filings than was seen between April 8 and April 15, when just 300 new cap filings were reported.

USCIS has also updated its H-2B cap count for the second half of Fiscal Year 2010. As of April 21, the agency had received H-2B filings on behalf of 24,110 H-2B beneficiaries for the second half of the current fiscal year, against a beneficiary target of 47,000 for the period. Of these, 22,565 beneficiaries had been approved and 1,545 were pending. The 47,000 beneficiary target is USCIS’s estimate of the number of H-2B beneficiaries it will need to meet the 33,000 half-year cap for H-2B nonimmigrants. The agency accepts filings for more than enough beneficiaries to meet the cap because a certain number of cases will be denied, rejected or withdrawn, and some H-2B petitioners will ultimately employ fewer H-2B workers than originally requested.

Source: Fragomen

United States: Travel Tips for Foreign Students Awaiting a Change of Status to H-1B

There are significant risks to many F-1 students who travel after an H-1B petition has been filed on their behalf. Those who travel internationally should make sure they have all necessary documents and should be prepared for possible reentry delays.

Are you an F-1 student who is (or will soon be) the beneficiary of an H-1B petition and request a change of status to H-1B for employment starting October 1, 2010?

If you are planning to travel internationally between now and October 1, Fragomen recommends that you carefully consider whether such travel is necessary. Traveling abroad during this time poses significant risks and possible delays, depending on whether you are in an ongoing course of study or period of optional practical training (OPT) or whether you are in the “cap gap” – the period of time between the end of your course of study or OPT and the date that a timely filed H-1B petition and change of status take effect in October.

Below are some frequently asked questions and important tips to consider if you are thinking about leaving the United States before October 1. If you cannot postpone travel until after October 1, you should be aware that you may not be able to reenter the United States in F-1 status during the summer before your H-1B petition takes effect. Instead, you may need to wait outside the United States and apply for an H-1B visa to reenter in time for your H-1B employment start date. If you do decide to travel abroad, you must make sure to have all necessary travel documents and be prepared for possible delays at U.S. consulates and ports of entry.

If you have questions about your specific circumstances, make sure to contact your designated Fragomen professional to discuss any travel plans.

1. My H-1B petition and application to change status to H-1B have been filed and are pending with USCIS. May I travel internationally while they are pending?

If you leave the United States before your case is approved by USCIS, you will have to take extra steps to assume your H-1B status on October 1. According to a longstanding government policy, if you travel abroad while your H-1B petition and request to change status are being processed, the change of status portion of your case will be considered abandoned. USCIS could still approve the H-1B petition itself, but you would not automatically change to H-1B status on October 1. Instead, you would need to either leave the United States again and apply for an H-1B visa at a U.S. consulate or, if otherwise permitted, have your employer submit a new petition to change status to H-1B after your return. If you apply for an H-1B visa abroad, you could be subject to a long wait overseas during the visa application process, which could delay your return to the United States and your ability to begin your H-1B employment on time. See Question 7 for more information about the visa application process.

2. I am an F-1 student who is still in school and I will not be applying for optional practical training. After my H-1B petition and application to change status are approved, can I travel abroad before October 1?

After your change of status is approved but before it takes effect on October 1, you should be able to travel abroad and reenter, as long as your course of study is not finished and you are coming back to the United States to resume your studies. When you travel, make sure that you are carrying all necessary documents. This includes a valid passport with a valid F-1 visa stamp and a Form I-20 that is endorsed for travel. If your F-1 visa is no longer valid and you will need to get a new one to reenter in F-1 status, you should expect delays during the visa application process. It may also be difficult for you to demonstrate nonimmigrant intent, which is a requirement for F-1 students. See Question 6 for more information about these issues.

3. I am finished with my F-1 course of study and I will not be applying for optional practical training. After my H-1B petition and change of status are approved, will I be able to travel abroad?

You cannot return to the United States in F-1 status if you travel abroad after your studies are finished. As long as your H-1B petition was filed before your F-1 student status expired, you can remain in the United States during the “cap gap” period between the end of your F-1 period of stay (plus 60-day grace period) and October 1. But an F-1 student who travels abroad during their grace period or, as USCIS has recently confirmed, during the cap gap cannot be readmitted to the United States in F-1 status. If you must leave the United States, you will have to apply for an H-1B visa to return, and will not be able to work again until October 1. See Question 7 for more information about H-1B visa application procedures and delays.

4. I am an F-1 student and my OPT has expired. If I travel before October 1, what are the risks?

You cannot return to the United States in F-1 status if you travel abroad after your OPT has expired. As long as your H-1B petition was filed before your OPT expired, you can remain in the United States and work during the “cap gap” period between the end of OPT and October 1. But as USCIS has recently confirmed, an F-1 student who travels abroad during the cap gap cannot be readmitted to the United States in F-1 status. If you must leave the United States, you will have to apply for an H-1B visa to return, and will not be able to work again until October 1. See Question 7 for more information about H-1B visa application procedures and delays.

5. I am currently in a period of valid optional practical training and I have a valid employment authorization document. Is international travel possible in my situation?

Yes, under these circumstances, you should be able to return to the United States in F-1 status, as long as you have the appropriate documents and convince visa and immigration officers that you intend to comply with the F-1 rules, including having nonimmigrant intent. If your H-1B change of status has been approved before you depart the United States, that change of status will take effect on October 1 as long as you have returned to the United States before that day.

The following documents are required for reentry in F-1 status:

• A valid passport with a valid F-1 visa stamp. If you need to apply for a new F-1 visa stamp to reenter the United States as a student, you should expect delays at the U.S. consulate and at the port of entry (see Question 6 for more details).
• A Form I-20 that is endorsed for travel by the school official.
• A valid employment authorization document. If you are applying for an extension of your OPT on the basis of a degree in a science, technology, engineering, or mathematics (STEM) field, you should not leave the United States until you receive your new EAD for the extension period.
• A letter from your OPT employer verifying your employment. You must have an OPT job or job offer before you leave the United States. If you go abroad before you find a job, your OPT period will be terminated and you will not be able to return to the United States unless and until you obtain an H-1B visa.

If you travel while on OPT, pay attention to the number of days you spend outside the United States, because that time could be counted against the limit on unemployment during the OPT period. USCIS regulations require an F-1 student to have no more than 90 days of unemployment during the OPT period (or 120 days for F-1s who have received an OPT extension based on a STEM degree). This includes time spent outside the United States, unless international travel takes place during leave that is authorized by your OPT employer or is part of the your OPT employment.

6. Before October 1, I am planning to leave the United States and reenter in my F-1 status, but I will need to apply for a new F-1 visa while I am abroad. What should I expect during the visa application process and at the port of entry?

You should be prepared for possible delays and difficulties in obtaining a new F-1 visa and/or reentering in F-1 status.

First, like any visa applicant, you could be required to go through a security clearance before your visa can be issued. If your name, personal details or travel history match information in government security databases or on travel watch lists, the State Department will not be able to issue a visa until it confirms that you are not the same person as an individual who appears in a database or watch list. Many security clearances get resolved in a matter of weeks, but if you have a common name, your clearance could take several months or longer. If this occurs, your reentry to the United States could be delayed.

Second, at the consulate and when returning to the United States, immigration officials may question whether you genuinely intend to return to your home country. Having a foreign residence that you do not intend to abandon is a requirement for F-1 status. If you have an approved H-1B petition in the system, consular and border officials will know that you have a professional job in the United States – a possible indication of strong ties to the United States. If a consular or border officer questions your intentions, you could have your visa or entry denied or delayed, and may have to wait overseas until you can apply for an H-1B visa to enter and start your H-1B employment. Note that having a foreign residence is not a requirement for an H-1B visa.

7. If I decide to leave the United States before October 1, how soon can I apply for my H-1B visa and enter the United States in H-1B status?

State Department rules generally allow you apply for your visa up to 90 days before your H-1B petition start date. For example, if your start date is October 1, 2010, you could apply for your H-1B visa as early as July 3, 2010. Because procedures differ among U.S. consulates, though, you should check with the consulate where you will apply for specific instructions on when you can submit your visa application. Contact information for U.S. embassies and consulates is available at http://usembassy.gov/.

Once you have applied for your H-1B visa, be prepared for a possible security clearance. As discussed in Question 5, if your name, personal details or travel history match information in government security databases or on travel watch lists, the State Department will not be able to issue your visa until it confirms that you are not the same person as an individual who appears in a database or watch list. Some security clearances get resolved in a matter of weeks, but if you have a common name, your clearance could take several months or longer.

Once you have received an H-1B visa, you may enter the United States up to 10 days before your H-1B petition start date. For example, if your start date is October 1, 2010, you can enter as early as September 21, 2010. The extra 10 days allows you to get settled in the United States, but you cannot do H-1B work during this time. You are not authorized to start your H-1B employment until your petition start date.

Source: Fragomen

United States: USCIS Posts Initial H-1B Cap Count

United States Citizenship and Immigration Services (USCIS) has published its first count of Fiscal Year 2011 H-1B cap filings. As of April 8, 2010, USCIS had received 13,500 petitions against the 65,000 standard quota and 5,600 petitions towards the 20,000 cap exemption for foreign nationals holding U.S. advanced degrees, for a total of 19,100 cap filings.

USCIS is maintaining its H-1B cap count at http://www.uscis.gov/h-1b_count.

Fragomen is monitoring H-1B usage closely, and we will provide additional information as it becomes available.

Source: Fragomen

United States: H-1B Filing Season Begins

U.S. Citizenship and Immigration Services (USCIS) has begun accepting H-1B cap petitions for employment in Fiscal Year (FY) 2011. The next few weeks will be closely watched by employers and their immigration counsel, as the agency takes in the first wave of filings and works to determine whether the H-1B cap will have been met during the critical first five business days of the filing period (through April 7) or whether cap numbers will remain available beyond this time frame.

The answer is not likely to come for at least a few weeks, until after USCIS performs initial case intake on the large number of H-1B petitions that will be filed during the next few days. If, as occurred last year, the quotas for standard and advanced-degree cases are not reached in this period, the agency will continue to accept cases until it determines that it has received sufficient filings to meet the cap for the year. If USCIS receives enough cases to reach the 65,000 standard cap during the first five business days, it will use a lottery to select the cases that are awarded quota numbers. Filings eligible for the 20,000 advanced-degree quota exemption will continue to be accepted until sufficient numbers are received to exhaust the exemption. If more than 20,000 advanced-degree exemption-eligible cases are received during the initial five days but the standard cap has not been reached, the surplus cases will simply spill over to the standard pool. USCIS is expected to post detailed H-1B cap statistics on a new cap-count web page.

What Should Employers Do Now?

Employers who have filed H-1B cap cases or will be filing them between now and April 7 should prepare for some delays in receiving filing receipts from USCIS, as the agency deals with the first cases. It is also possible that USCIS will temporarily suspend premium processing during this time while it handles initial case intake.

Employers who have not yet prepared or submitted FY 2011 H-1B cap cases should move quickly so that cases can be filed between now and April 7, or as soon as possible thereafter (provided cap numbers remain available). Though the H-1B cap may not be reached during the first five business days of the season, filing during this period is still the best way to ensure that H-1B employment needs for the coming fiscal year can be met. It is also the best way to ensure that F-1 students who will be changing status to H-1B can have their student stays and, if eligible, their optional practical training (OPT) work authorization extended during the “cap gap” between now and the start of FY 2011 on October 1, 2010. If your organization plans to file H-1B cap petitions, contact your designated Fragomen professional as soon as possible

Fragomen is closely monitoring H-1B cap processing, and will issue further Client Alerts as the filing season progresses.

Source: Fragomen

United States Reminder: FY 2011 H-1B Cap Filing Season Opens on April 1

U.S. Citizenship and Immigration Services will begin accepting Fiscal Year (FY) 2011 H-1B cap petitions on April 1, 2010. Though the business immigration community does not anticipate the huge initial surge of filings and rapid cap exhaustion of past years, filing petitions on April 1, or at least during the first five business days of the filing period, is still the best option to ensure that your organization can meet its H-1B hiring needs for the coming fiscal year.

When Might the Cap Be Reached?

This year, the pace of cap usage during the upcoming filing season is difficult to predict because of several competing factors. The fiscal 2010 cap was reached just a few months ago, so there is not likely to be the kind of pent-up demand that employers have experienced in previous H-1B seasons. At the same time, improvements in the economy and in some industries could mean more cap petitions than last year’s slower overall filing rate would suggest. Even though cap usage was generally slow throughout most of the last fiscal year, there was a spike in quota number usage in November and December, suggesting a resurgence of demand.

Under agency regulations, if USCIS receives more than enough petitions to reach the 65,000 standard cap in the first five business days of the filing season – Thursday, April 1, 2010 through Wednesday, April 7, 2010 – it runs a lottery to select the cases that are awarded quota numbers. Eligible advanced-degree filings would continue to be accepted until sufficient numbers are received to exhaust the 20,000 exemption for these cases. If more than 20,000 advanced degree exemption-eligible cases are received during the initial five days, but the standard cap has not been reached, the otherwise exempt cases will simply spill over to the standard pool.

Cases that are not selected in the lottery are rejected and returned along with their filing fees. If the quota is not reached during the first five days, as occurred during the FY 2010 filing season, USCIS continues to accept filings until it determines that it has received enough cases to meet the cap for the year.

Planning for the Filing Season

If your organization is planning to petition for H-1B employment in FY 2011, contact your designated Fragomen professional to discuss the application process. As always, advance preparation is key. Timing is particularly important this year because of the uncertainty about numbers and the fact that the opening of the filing period falls during several holidays. Some important points to keep in mind:

• Gather supporting documentation promptly. Petition documentation should be gathered and prepared as soon as practicable, especially in light of USCIS’s new policies on documenting the employer-employee relationship in H-1B cases (discussed further here).
• Get certified LCAs as soon as possible. Because of new procedures and longer processing times, labor condition applications (LCAs) should be sought from the Department of Labor well in advance of April 1. USCIS’s narrow policy on accepting H-1B filings without certified LCAs will expire on March 9 — weeks before the April 1 opening of the filing season. (The agency had originally stated the policy would expire on March 4, but has since clarified that the last date for filing within this limited exception is March 9.)
• Be prepared for last-minute procedural changes. It is not unusual for the government to announce changes in the filing process shortly before the April 1 opening date. Employers should note, however, that proposed changes to the Form I-129 nonimmigrant worker petition, reported here, are still in the review process and, if ultimately approved, would not take effect until after the opening of the FY 2011 H-1B filing season.

Source: Fragomen

United States: H-1B Cap Is Close to Exhaustion

U.S. Citizenship and Immigration Services has now received 64,200 filings against the fiscal 2010 H-1B cap. The agency is still accepting petitions for H-1B employment in the current fiscal year, but the cap could be reached imminently.

U.S. Citizenship and Immigration Services (USCIS) is very close to reaching the H-1B cap for Fiscal Year (FY) 2010. According to statistics released today, the agency has received approximately 64,200 cap-subject H-1B filings as of Tuesday, December 15, an increase of 1,300 filings in the four days since the last cap count. Though the agency is still accepting petitions for H-1B employment in the current fiscal year, time is running out and the cap is likely to be reached imminently.

Organizations with plans to file additional H-1B petitions for employment start dates in fiscal 2010 must do so as soon as possible to minimize the possibility of being foreclosed by the exhaustion of the cap. If your company has additional H-1B needs for FY 2010, contact your designated Fragomen professional immediately.

Source: Fragomen

United States: H-1B Filings Continue to Increase

USCIS has now received 62,900 filings against the fiscal 2010 cap, an increase of 400 in just a one-day period. Employers who wish to submit petitions for H-1B employment in the current fiscal year must do so as quickly as possible.

U.S. Citizenship and Immigration Services (USCIS) has received approximately 62,900 cap-subject H-1B filings as of Friday, December 11, an increase of nearly 400 in the one day since the agency’s last count on December 10. Employers may still file both standard and advanced-degree H-1B cases for employment start dates in Fiscal Year (FY) 2010, but should do so as soon as possible because the quota for this year could be exhausted imminently. The rate of cap filings continues climbing quickly, as organizations rush to fill their remaining H-1B needs for the fiscal year.

If your organization plans on filing H-1B petitions for employment start dates in fiscal 2010, contact your designated Fragomen professional immediately.

H-2B Usage Also Increases

Employers may still file petitions for H-2B temporary nonagricultural workers for the first half of fiscal 2010, though filings continue to increase in this category as well. USCIS has now received filings for 31,186 H-2B beneficiaries for the first half of the fiscal year, of which 28,930 hav

e been approved. The agency has determined that it will need to receive filings for 47,000 cap-subject H-2B petition beneficiaries in order to reach the 33,000 half-year cap. USCIS uses the beneficiary target figure to account for cases that are ultimately denied, withdrawn or revoked, as well as cases in which employers actually employ fewer workers than requested. The target figure is subject to change as the fiscal year progresses.

USCIS’s complete H-1B and H-2B statistics are available here.

Fragomen

United States H-1B Filings Increase Again This Week; Cap Nears Exhaustion

USCIS has now received 62,500 filings against the fiscal 2010 cap, an increase of 1000 in just two days. Employers who wish to submit petitions for H-1B employment in the current fiscal year must do so as quickly as possible.

U.S. Citizenship and Immigration Services (USCIS) has received approximately 62,500 cap-subject H-1B filings as of Wednesday, December 10, an increase of nearly 500 per day since the agency’s last count on Monday, December 8. Employers may still file H-1B cases for employment start dates in Fiscal Year (FY) 2010, but time is running out. FY 2010 petitions must be submitted as soon as possible because cap exhaustion is near. The rate of cap filings is expected to continue to climb rapidly towards the quota, as organizations with remaining H-1B needs rush to submit their last cases for this fiscal year.

If your organization plans to file additional H-1B petitions for employment start dates in fiscal 2010, contact your designated Fragomen professional immediately.

Source: Fragomen

United States: FY 2010 H-1B Usage Increases Again

U.S. Citizenship and Immigration Services (USCIS) has received approximately 61,500 cap-subject H-1B filings as of Monday, December 8, an increase of nearly 400 since the agency’s last cap count on Friday, December 4. Employers may still file H-1B cases for employment start dates in Fiscal Year (FY) 2010, but should do so as soon as possible because the quota for this year is moving ever closer to exhaustion. The rate of cap filings continues to increase rapidly, as organizations with remaining H-1B needs rush to file their cases before USCIS announces that the cap has been reached. For additional information, see our updated frequently asked questions (FAQ) document.

If your organization plans to file additional H-1B petitions for employment start dates in fiscal 2010, contact your designated Fragomen professional immediately.

Source: Fragomen