Employment Based 2nd Preference Dates - June 2012

Employment Based 3rd Preference Dates - June 2012

India/China Second Preference Discussion

The Department of State (DOS) has indicated that despite the retrogression of the China and India Second Preference cut-off date to August 15, 2007, demand for numbers by applicants with priority dates earlier than that date remained excessive. The number of cases being filed to upgrade from the Third Preference category to the Second Preference category was so great, DOS determined it was necessary to make the China and India Second Preference category “unavailable” in early April. The DOS has indicated the category will remain unavailable for the remainder of 2012.

Numbers will once again be available for China and India beginning October 1, 2012 and every effort will be made to return the cut-off date to the May 1, 2010 date which had been reached in April of 2012, though current indications are that it will not occur before spring 2013.

USCIS will continue to accept China and India Second Preference cases during May based on the originally announced May cut-off date. These cases will be accepted for filing and EAD cards and Advance Parole travel documents will be issued, but the cases will not be finished and greencards will not be issued until the visa numbers become available again.

H-1B Regular Cap: 36,700 (65,000 available)

H-1B Master’s Degree Exemption: 14,800 (20,000 available)

Total Petitions Received throughMay 11, 2012: 51,500

Summary of What We Have Seen So Far

1^st Reporting Period: April 2 to April 9 (7 Mail Delivery Days)

Regular: 17,400; Masters: 8,200

2^nd Reporting Period: April 10 to April 20 (10 Mail Delivery Days)

Regular: 7,600; Masters: 2,700

3^rd Reporting Period: April 21 to April 27 (6 Mail Delivery Days)

Regular: 4,200; Masters: 1,400

4^th Reporting Period: April 28 to May 4 (7 Mail Delivery Days)

Regular: 3,300; Masters: 1,400

5^th Reporting Period: May 5 to May 11 (6 Mail Delivery Days)

Regular: 4,200; Masters: 1,100

Playing With the Numbers – Guessing When the Cap Might Run Out

This most recent period saw a slight increase of the filing rate. This 6 day mailing period represents a rate of filing of about 5,300 per week, up from the rate of the last 6 day period, which was about 4,000 per week, but down from the rate of about 6,000 per week during the second and third reporting periods.  The rough average weekly filing rate for the period from April 10 to May 11 (this excludes the rush of the first week) is about 5,500.

Again, this is not a scientific study and covers only a small sample, so take it with a grain of salt. Extrapolating out, this is how the cap might work out at the current rates.

25,600 total petitions were filed in the first reporting period, the big cap open rush, which ran from April 2 to April 9. That left 59,400 total petitions (85,000 – 25,600).

59,400 divided by the current average rate of approximately 5,500 per 6 day mailing week equals approximately eleven weeks. Eleven weeks from April 9 is Monday, June 18^th.

Historically, as people see the cap getting close there is typically a rush to file, so the last couple of weeks see a significant increase. My prediction is that if filing continues at the current rates, we will see the cap run out in the first week of June.

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H-1B Regular Cap: 32,500 (65,000 available)

H-1B Master’s Degree Exemption: 13,700 (20,000 available)

Total Petitions Received through May 4, 2012: 46,200

Summary of What We Have Seen So Far

April 2 to April 9 (7 Mail Delivery Days)

Regular: 17,400; Masters: 8,200

April 10 to April 20 (10 Mail Delivery Days)

Regular: 7,600; Masters: 2,700

April 21 to April 27 (6 Mail Delivery Days)

Regular: 4,200; Masters: 1,400

April 28 to May 4 (7 Mail Delivery Days)

Regular: 3,300; Masters: 1,400

This represents a slight slowing of the filing rate. This period, modified to reflect a 6 day mailing period, represents a rate of filing of about 4,000 per week, down from the rate of about 6,000 per week during the second and third reporting periods. Again, this is not a scientific study and covers only a small sample, so take it with a grain of salt. However, if we continue to see filings running even at this rate, don’t be surprised if the cap runs out in June.

USCIS has implemented a system to accommodate the large number of H-1B visa petition filings which occur when the filing season first begins. USCIS accepts all cases filed during the first full week, without regard to the total number of cases received. If more than the 85,000 H-1B total visas available (masters and general cap combined) are received during the first week, USCIS holds a random lottery and selects from all of the cases received enough petitions to use the 85,000 available (including a few extras to cover denials). If fewer than 85,000 petitions are received, all petitions are receipted and processed and the cap remains open until a later date.

This means that all petitions received during the first week are not receipted on the day they are received by USCIS. They are held until the first week is over and the determination of the need for a lottery has been made. This year, since the cap was not completely used during the first week, all petitions filed during the first week were given a receipt date of April 9th, the Monday after the first week of filing was completed. Because there was no lottery, it does not matter that they were given a later date than the one on which USCIS actually received them. All were accepted for filing. This explains why all initial cases filed were given a receipt date of April 9, 2013.

H-1B Regular Cap: 29,200 (65,000 available)

H-1B Master’s Degree Exemption: 12,300 (20,000 available)

Total Petitions Received through April 20, 2012: 35,900

Summary of What We Have Seen So Far

April 2 to April 9 (7 Mail Delivery Days)

Regular: 17,400; Masters: 8,200

April 10 to April 20 (10 Mail Delivery Days)

Regular: 7,600; Masters: 2,700

April 21 to April 27 (6 Mail Delivery Days)

Regular: 4,200; Masters: 1,400

While this is by no means an exact science, and only reflects filing for 27 calendar days (a pretty small sample), if you compare the rate of filing for the ten days of reporting period two to the rate of filing for the six days of reporting period three, you get almost exactly the same rate: about 4,500 regular and 1,600 masters cases are being filed each week.

If we continue to see filings at this rate, don’t be surprised if the cap runs out in June. Do we really need to tell you to get on the move if you haven’t already started this year’s H-1B visa filings? Probably not.

H-1B Regular Cap: 25,000 (65,000 available)

H-1B Master’s Degree Exemption: 10,900 (20,000 available)

Total Petitions Received through April 20, 2012: 35,900

In 2011, USCIS released a similar cap count on April 18th:

H-1B Regular Cap: 7,100 (65,000 available)

H-1B Master’s Degree Exemption: 5,100 (20,000 available)

Total Petitions Received through April 18, 2011: 12,200

As you can see, 2012 H-1B filings continue at a rate approaching triple the 2011 rate. If you have not yet started to prepare H-1B petitions for this year, you need to seriously consider taking action now. We simply do not know how long the cap is going to remain open.

Visa Fees for H-1B visas have increased from $150 to $190.

Unfortunately, the statement does not contain any information about how to deal with Fee Bills issued but not yet paid that reflect the higher fee. Can you pay only the reduced fee? Do you need a new Fee Bill? Hopefully we receive guidance on those issues soon.