FY 2009 (10/01/2008 to 09/30/2009) – H-1B quota was reached on April 7, 2008.FY 2008 (10/01/2007 to 09/30.2008) – H-1B quota was reached on April 1, 2007 (Note: Cases received on April 2, 2007 and April 3, 2007 were subjected to the random selection process.)We believe the quota will be reached much sooner for FY 2014 (October 1, 2013 to September 30, 2014), so it is important to plan now for the upcoming fiscal year.USCIS will begin accepting H-1B petitions for FY2014 on April 1, 2013. We recommend filing your H-1B petitions on April 1, 2013, or soon thereafter.
Common issues H-1B employers may have getting their H-1B petitions approved:USCIS examiner asserts the H-1B position listed on the Form I-129 is not a specialty occupation (i.e., one that requires a Bachelor’s Degree) (Note: USCIS examiners seem to like to attack business-based positions, claiming such positions are not specialty occupations. Examples: Business Analyst, Financial Analyst, Management Analyst, etc.).USCIS examiner may attempt to deny the case on the basis the alien does not have the equivalent of a Bachelor’s Degree in a field related to the H-1B position. (Note: In cases in which the alien is combining his or her education or experience to meet the degree requirement, special evaluations from college professors who have authority to grant college level credit must be obtained. The college has to have a program in a degree field related to the position.)USCIS examiner does not believe the H-1B employer has work for the alien for the requested H-1B validity period. (Note: USCIS examiners have requested letters from the H-1B employer’s customers or evidence or project work at the H-1B employer’s facility. This type of issue occurs more in a roving employee context.);USCIS examiner does not believe the H-1B employer and alien have a valid employer-employee relationship. (Note: This type of issue occurs in a roving employee context. Evidence that may be provided to address this issue are pay stubs, employment contract, performance reviews, letters from customers attesting the H-1B employer has ultimate control over the work performed by the alien, service agreements that specify personnel assigned by the H-1B employer will at all times remain employees of the H-1B employer, etc.).The H-1B employer fails to demonstrate that it is a bona fide company, has the ability to pay the prevailing or actual wage, and/or that it has office space to accommodate the number of employees sponsored in the H-1B category, based on the number of H-1B petitions filed.
Elimination of I-94 CardsCBP is planning to eliminate I-94 cards;Instead of paper I-94 cards, all nonimmigrants will receive entry stamps in their passport annotating status and the period of stay.No timeline has been announced.The elimination of the I-94 card is designed to improve efficiency and save money.The change will impact employers (H-1B employers), universities, other government agencies (Example: Social Security Administration).Currently, I-94 cards are presented to employers as proof of U.S. work authorization as part of the I-9 and E-Verify process.The elimination of the I-94 card will require laws and regulations to be changed, forms to be revised, etc.New Form 9035 (Labor Condition Application)Going through the rule making process. Period for public comments ended on September 7, 2012.The new Form 9035, as proposed (subject to modification) requires the following: (A) Disclosure of the employees personal information (Example: DOB). This is problematic since Form 9035 is part of H-1B public access file and is available for public inspection. (B) Limits the number of workers who may be listed on the LCA to ten (10); (C) It requires more detailed information about the worksite where the work will be performed. (D) Proposed LCA will require information about any PERM labor application filed on alien’s behalf. This will allow DOL to compare information on LCA with information on a Form 9089. Discrepancies in the forms may be used by DOL in an unfavorable manner. (D) The new proposed Form 9035 requires more detail regarding a dependent employers H-1B recruitment efforts, sponsoring a non-exempt employer. (E) Requires more detailed information about the sponsoring employer (gross income, net income, number of employees). (F) Requires employer to make specific attestations that it will do certain things. On current LCA form, these attestations are in the form instructions and it is implied that the employer is to agree to the requirements stated therein. However, new form makes the employer affirmatively attest to each requirement. The fact the attestations are prominent on the form makes it difficult for the employer to claim it was not aware of the attestations or LCA requirements in an enforcement action.House Rule 3012A bill that would eliminate the per-country numerical limits for employment-based (EB) visas. It would also raise the family-based green card per-country cap. The bill passed the U.S. House of Representatives, and has moved to the U.S. Senate, but has been placed on hold by Senator Grassley. Removal of the hold is connected to internal agreements with respect to amendments to the bill that would expand DOL’s enforcement power regarding the H-1B program. The proposed amendment would greatly expand the DOL’s power to proactively initiate investigations of employers for LCA violations, and would mandate annual audits for certain employers.
Optional Practical Training (OPT)Generally, F-1 students exercise it after they complete their academic program.Limited to 12 months (Must complete within 14 months of graduation).May be request OPT no earlier than 90 days before the end of the academic year.Designated School Official (DSO) must make recommendation for OPT. OPT employment must be in a field related to the alien’s degree.Alien files a Form I-765 with the USCIS with a copy of the Form I-20.Alien cannot request a start date later than 60 days after the completion of the academic program.Alien cannot accrue more than 90 days of unemployment during OPT period.Alien has 60 days after OPT employment authorization expires to depart. Automatic extension of OPT for F-1 students who timely file H-1B petition before expiration of EAD card. (Cap Gap Rule)
STEM Optional Practical TrainingAlien can obtain an additional 17 months of OPT, if the aliens degree was in one of the following fields: Physics, Acturial Science, Chemistry, Mathematics, Statistics, Computer Science, Psychology, Biochemistry, Robotics, Computer Engineering, Electrical Engineering, Mechanical Engineering, Industrial Engineering, Civil Engineering Aerospace Engineering, Chemical Engineering, Astrophysics, Astronomy, Nanotechnology Nuclear Physics, Mathematical Biology, Neurobiology, Biomechnics, Bioinformatics, Accoustical Engineering, Geographic Information Systems, Atmospheric Science. STEM students must report to DSO in six month increments.The STEM subject must be the alien’s major, it cannot be the alien’s minor.The STEM OPT has to be based on the alien’s most recent degree received.Evidence of employer’s registration with E-Verify must be submitted with the Form I-765 application to extend the alien’s Employment Authorization Document (EAD).Automatic extension of OPT for F-1 students who timely file H-1B petition before expiration of EAD card. (Cap Gap Rule)
Common issues L-1 employers may have getting their L-1 petitions approved:Failure to demonstrate the alien possesses the required special knowledge.Inability to show the knowledge possessed by the alien is developed or related to the employer’s product or service.Failure to demonstrate the alien worked in a managerial or executive capacity abroad.Failure to establish the necessary qualifying relationship.
How to address the L-1A RFE issues we are seeing :Include personnel chart (i.e., line and block diagram) that reflect the alien’s position overseas and the personnel above and below the alien, as well as a personnel chart that reflects proposed position in the U.S.Include the degree certificates of the personnel that the alien supervised abroad, and will supervise in the U.S. in proposed position to show the personnel being supervised are professionals.Include promotion letters that reflect the promotion of the alien to a managerial position(s).E-mail communications that reflect the alien is controlling workflow and/or engaged in high level decision making.Evidence of performance reviews conducted by the alien of those the alien supervised.Evidence the alien has authority to sign contracts or negotiate the terms of contracts with customers.Letters from former customers on customer letterhead attesting the alien worked in as a manager or executive.Review the support letters of the employer’s prior petition filings of the alien to make sure the information disclosed is consistent with the work history of the alien working in a managerial or executive capacity.L-1 support letter should breakdown the alien’s job duties in prior employment and in proposed employment in detail and assign a percentage of time to each job duty.