USCIS Deputy Director addresses Employment Based Visa Wait Times

Mike Aytes, the Acting Deputy Director of the  United States and Citizenship and Immigration Services (USCIS) recently addressed questions regarding the volume of employment-based petitions and delays that have occurred in employment-based visa petition and adjustment application processing in late 2007 and early 2008.

According to USCIS employers filed more than 234,000 petitions to sponsor foreign workers (Form I-140) as the Department of Labor cleared a large backlog of labor certification applications and implemented new regulations. Adjustment-of-status application filings also soared to nearly 300,000.

Aytes said that the USCIS is working towards proving more information on its website so that applicants are able to better gauge as to how many people are waiting in line with pending adjustment applications or how long it may be before USCIS can process and approve an individual’s application.

Aytes also mentioned that USCIS has taken the following steps to ensure efficiency:

• USCIS has increased the emphasis on processing employment-based petitions. The USCIS goal is to complete adjudication on the older I-140 petitions and to process newer petitions within our targeted processing time of four months. USCIS is making progress toward this goal and anticipates reaching this goal by the end of September 2009.
• USCIS is issuing employment authorization documents valid for two years, as needed.
• USCIS is working with the State Department to make sure every available visa number is used. In 2007, more visas were available in the family-based categories than were needed, so as permitted by law, USCIS transferred those available family-based visas for use in the employment-based application process.

It May Not be Too Late to File for an H-1B — the H-1B Cap Not Yet Met for Fiscal Year 2010!

April 1, 2009, U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions for employers to hire foreign workers in “specialty occupations”, for Fiscal Year 2010, which starts Oct. 1.

USCIS in its most recent update of April 20, 2009, confirmed that the H-1B Cap for FY 2010 has not been reached yet with fewer than predicted H-1B petitions filed this year by employers.

Although the economic downturn was forecasted to weaken the demand for H-1B employees, most immigration attorneys, myself included, are surprised that over three weeks into the new H-1B season and USCIS is still accepting H-1B petitions and the cap of 65,000 visas has not been met.

This is the first year in many years that the H-1B cap has not been reached within days of the April 1^st date. Two years ago, USCIS received more than 130,000 petitions in two days before the agency stopped accepting them. Last year, USCIS stopped accepting petitions within a week

As of the date of writing this article, the USCIS has announced that it had received approximately 44,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap and 20,000 petitions towards the 20,000 advanced-degree exemption cap. The USCIS, however, has announced that it will continue to accept advanced degree petitions since not all petitions received are approvable.

USCIS says it will continue to monitor the number of H-1B petitions received and will issue a notice when it reaches the 65,000 regular cap and the 20,000 advanced-degree exemption cap.

If and when USCIS hits the H-1B cap, petitions received on that final receipt date could be subject to a computerized random selection. If for instance USCIS receives 20 petitions, but can accept only 10 to reach the cap, those 10 will be randomly selected.

This scenario presents a unique opportunity for employers who chose not to file H-1B petitions earlier for otherwise eligible workers due to the potential non-selection of an H-1B petition in the anticipated lottery. It is not too late to file for an H-1B petition, as there is availability as of the date of writing the article, under the regular cap, as well as a window of opportunity under the U.S. master’s cap.

H-1B Cap for FY 2010 Not Reached

The H-1B Cap for FY 2010 has not been reached yet with fewer than predicted H-1B petitions filed this year by employers. This is the first year in many years that the H-1B cap has not been reached within days of the April 1st date — the date when the U.S. Citizenship and Immigration Services (USCIS) begins to accept petitions.

USCIS has announced that it continues to accept H-1B non-immigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap.  

USCIS says it will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. master’s degree or higher educational exemption cap.

Once USCIS receive the necessary number of petitions to meet the respective caps, it will issue an update that, as of a certain date (the “final receipt date”), the respective FY 2010 H-1B caps have been met.

The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition is postmarked.

The Debate on US Immigration Policy and Highly Skilled Workers

NY Times section “Room for Debate”, this week, examined the hot issue of skilled foreign workforce in the United States, particularly workers on H-1B visas that arrive as students and stay through the H-1B program. The NY Times asked several experts on how immigration policy affects the highly skilled workers and the policy that relies on them.

The opinon of the experts is diverse and represents both sides of the debate.  For the excerpted points see below and for the full article see here.

Vivek Wadhwa, who is an executive in residence for the Pratt School of Engineering at Duke University and a senior research associate in the labor and work-life program at Harvard Law School, argues that the real problem is brain drain. Outdated immigration policies and restrictive federal legislation is causing highly skilled foreign born workers to leave the U.S.  in thousands each month for their home countries for better quality of life and better professional opportunities. Vivek Vadwa calls it the “perfect storm for diminishing U.S. competitiveness”. 

Norman Matloff, professor of computer science at the University of California, Davis, finds the core problem with the H-1B program is its impact on older U.S. workers. According to him, the median age of H-1B workers is 27, and since younger workers are cheaper, employers use H-1B to avoid hiring older (i.e. over age 35) U.S. citizens and permanent residents on the basis that the are older workers have greater experience than required for the job.

Guillermina Jasso, professor of sociology at New York University, research fellow at IZA Bonn and a principal investigator on the New Immigrant Survey, says that data from the New Immigrant Survey reveals that soon after admission to the U.S. on permanent visas, only about 78 percent of the 2003 cohort intended to stay. Intention to stay is even lower among the very highly-skilled immigrants: 59 percent in EB-1, 52 percent in EB-2, and 71 percent in EB-3 categories.

Ron Hira, an assistant professor of public policy at Rochester Institute of Technology and co-author of “Outsourcing America”, says that “the H-1B visa program — guestworker permits held by an employer — is thoroughly corrupted and needs to be cleaned up immediately”.

Mark Heesen, president of the National Venture Capital Association, says foreign born entrepreneurs have been risk-takers and particularly successful in the start-up community and that to maintain our compettive edge, U.S. will have to remain a magnet for global talent.

John Miano, a lawyer and computer programmer, argues that the U.S. the has a very generous immigration policy for skilled workers, particularly those with distinguished ability, and that proponents of the H-1B debate are dumbing down what “highly skilled” means.  To Miano, “H1-B is a cheap labor program being marketed as a program for the highly-skilled”.

Please feel free to share your views with us and let us know which side of the debate you are on.

Exploring H1-B Visa Alternatives

Whether you were unable to find a job in this economy, or unable to get your employer to sponsor you for an H-1B, or whether you were unable to get your H-1B application in on a timely fashion, whatever your reason may be for being unable to file the H-1B application by the April 1st date (for FY 2010), don’t despair, as there may be other visa options for you in the United States and/or in the United Kingdom.

See, our attorney, Hanishi Ali’s recent article published in India New England where she discusses the many alternatives to H-1B visas.

Revised Form I-9 Now in Effect since April 3, 2009

The revised Form I-9, Employment Eligibility Verification, went into effect on April 3, 2009 and employers may no longer use previous version of the Form I-9.  Check the revision date printed on the lower right-hand corner of the form to make sure you are using the revised Form I-9.

The revised Form I-9 specifies that employers may no longer use expired documents as acceptable forms of identification or employment authorization.

For futher details on the employers’ obligations and differences between the current and revised Form I-9, see our attorney, Hanishi Ali’s recent article published in the Indus Business Journal.

The revised Form I-9 can be obtained here.