As expected, the USCIS announced on Friday, that it had reached the cap for new H-1b cases during the first five days of April and a lottery will be held. If last year is any indication, we should start to receive receipts for those lucky few within the next 2 weeks. More updates will be provided as they become available.
The H-1b cap lottery is only 8 weeks away. HLG will be hosting an informative conference call on Tues Feb 6th at 2:00 pm eastern for its clients and friends. Registration is free. For more information and to register, follow this link.
On May 31, 2017, USCIS released a memo clarifying that to be eligible for an H-1B cap exemption based on a Master’s Degree, the school from where the beneficiary obtained their degree has to have been a U.S. “institution of higher education” when the degree was earned. The policy memo cites to Matter of A-T- Inc., an “adopted decision,” meaning the decision is binding policy guidance for all USCIS personnel. As you probably know, there are only 65,000 H-1B visas available under the cap each year, with an additional 20,000 for people who have earned a master's degree or higher in the U.S. In their decision, the Administrative Appeals Office (AAO) stated, “[U]nder our interpretation, an individual who earns a degree from a (pre-)accredited institution may continue to qualify for the Master’s Cap exemption even if the institution later closes or loses its (pre-)accreditation status.” This will be an important memo to keep in mind as USCIS has, in some instances, gone back and reviewed a beneficiary’s initial H1B petition – and which cap they were counted under – while adjudicating a current extension. Even when the beneficiary has been in the U.S. for over 5 years.
In 2008, 163,000 H-1b cap petitions were received by USCIS between April 1st and April 7th for fiscal year 2009. Since only 65,000 new H-1bs can be approved in any fiscal year, USCIS faced the problematic situation of determining which cases should be adjudicated and which should be returned. USCIS used a random selection process (also known as a lottery) to choose which cases to review and rejected any cases that were not selected. As a result of this predicament, the Department of Homeland Security issued new regulations. If more than 65,000 cap-subject H-1b petitions are received within the first five business days after the first date that cap subject petitions can be submitted, USCIS will conduct a random selection process to determine which cases will be considered. Those selected will be adjudicated. All other cases will be returned with their applicable fees. What this regulation means as a practical matter, is that a case received on Thurs April 5th, is treated the same as if it was received on Mon. April 2nd. While we do not expect the H-1b cap to be reached between April 2nd and April 6th for FY 2013, this information should be kept in mind as employers determine when they plan to file new cap-subject petitions.
HLG published an Immigration Alert covering several topics of interest. If you are not subscribed to HLG's alert mailing list, you can subscribe at the HLG web-site.
Many people are wondering what caused the H-1b cap to be reached so much more quickly this year. Information that the cap would be met in November, two and a half months earlier than past years, caused many employers to scramble to submit petitions. At the Hammond Law Group, we believe that there are several reasons why the cap was reached at an earlier date. Perhaps most obviously, IT industry groups, such as TechServe Alliance, have noted consistent increases in hiring throughout this year. As a result, many IT organizations submitted an increased number of H-1b petitions this year for foreign workers who they hoped would fill these positions. In addition, the U.S. Consulates in India are denying a large amount of the L-1 visas. By decreasing the amount of L-1 visas available to Indian personnel, many organizations have resorted to using the H-1b visa to ensure that their personnel are able to enter the United States and work. Finally, Department of Homeland Security Secretary Napolitano and U.S. Citizenship and Immigration Services Director Mayorkas announced on August 2, 2011 that foreign entrepreneurs could use non-immigrant and immigrant visas to obtain status in the United States. It is possible that a number of H-1b visas were absorbed by foreign entrepreneurs. While all of these reasons likely contributed to the quick rate at which the H-1b visas were used up, we believe that the high rate of denials of the L-1 visa at U.S. Consulates in India and the increased hiring occurring in the IT industry caused the cap to be reached at an earlier date.
Late last week, the USCIS released new H-1b cap numbers and the filings are now at 7,100 and 5,100, respectively. We have updated the charts on the side panel to reflect the new numbers. In other H-1b news, U.S. Congressman Darrell Issa, a Republican from California, called for a liberalization of the H-1b cap. In testimony, he claimed that curbs on the H-1b visa have limited technology growth in the U.S. and harmed job creation.
The USCIS has released the number of cap cases filed through April 7, 2011 and as expected, the number of new cap filings does not come close to reaching the quota . Specifically, 4,500 cap cases were filed toward the Master's quota and 5,900 toward the regular quota. These numbers represent drops of 57% and 21% respectively. This drop is likely attributable to multiple factors including: FY2011 cap only being reached in Jan so fewer filings have been stockpiled, the disruption in the NPTE exam being given to physical therapists educated in India or the Philippines, continued weak hiring in various sectors due to economic factors and the USCIS Neufeld policy that encourages projects being performed at off-shore development centers rather than in the U.S. On the right hand side of this page, you will see "really cool charts" where we will provide updates of the number of cap cases being filed. When the caps are reached, the charts "explode like a volcano" or so I have been promised
The USCIS has announced that it has reached the H-1b cap for fiscal year 2011. As such, all H-1b petitions subject to the H-1b cap are not eligible for filing until April 1, 2011 with start dates of October 1, 2011. However, there are some employers that are exempt from the H-1b cap and can file throughout the year: non-profit research organizations, governmental research organizations, institutions of higher education, and non-profit organizations “affiliated or related” to an institution of higher education. Since the cap exemption was added to the law in 2000, some hospitals have been exempt based upon their affiliation or relation to an institution of higher education. In some cases, the affiliation has been based upon a jointly-administered program where the hospital provides clinical training for health-care workers (nurses, medical technologists, physicians, etc.) enrolled at that university. Recently the California Service Center of the USCIS (which now has exclusive jurisdiction for all cap exempt filings) seems to be stricter in its analysis of cap exemption for hospitals. There has not been any change in the law to prompt the strict scrutiny by the California Service Center. A few months ago, the Administrative Appeals Office ruled that a hospital that provided clinical training for nurses enrolled at an institution of higher education but was a corporation independent of the institution of higher education was not eligible for the cap exempt. However, this decision is non-precedent (applying only to that case) and not binding on the USCIS. In fact, the AAO issued an opinion four years ago that ruled just the opposite on the cap exemption issue. In that case involving a school, the AAO found that there was no legal affiliation but yet ruled that the school was exempt from the H-1b cap because it was involved in a [...]
USCIS has announced that it reached the H-1b cap on Wednesday. USCIS has stated that Wednesday, January 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011. The USCIS will return all cap-subject petitions received on Thursday or later. New H-1b's can be filed beginning April 1st, with effective start dates of October 1, 2011.