| | The Business Immigration Monthly is Hammond Law Group’s latest web-based newsletter, directed at international workers and employers seeking the most up-to-date news on U.S. immigration issues, specifically those that impact workers on H, L, E, and O visas and workers seeking permanent residency.
Featured Article: Don't be Scared of a PERM Audit
by Mike Hammond
May 2008 Visa Bulletin
The Department of State has released the May Visa Bulletin. There was some forward movement in all categories including: All Chargeability went from July 1, 2005 to March 1, 2006; EB2 China went from December 1, 2003 to January 1, 2004; EB2 India went from December 1, 2003 to January 1, 2004; and EB3 Philippines went from July 1, 2005 to March 1, 2006.
For full visa bulletin see: http://travel.state.gov/visa/frvi/bulletin/bulletin_4205.html
USCIS Announces FY2009 Cap Reached, Lottery Run
On April 8th, the USCIS announced that it had received enough H-1B petitions to meet the congressionally mandated cap for the fiscal year 2009, including the 20,000 advanced degree exemption as well. The USCIS estimates that 163,000 petitions were received by the service centers. On April 14th, the USCIS announced that it had run the random lottery on the petitions that were received. Those selected would receive a receipt notice no later than June 2, 2008. The premium processing period for those selected also began on April 14th.
In addition, the USCIS has “wait-listed” some H-1B petitions which would replace certain petitions initially chosen to receive a FY-2009 cap number, but which are subsequently denied, withdrawn, or otherwise found ineligible. USCIS intends to send a letter to those petitioners on the wait list to inform them of their status.
USCIS Link
CAP Demand Impacts Economy
It is of no surprise that the H-1B cap was hit immediately following the five day filing period. This was the first year, however, the that both the 65,000 overall cap and 20,000 cap exemption were reached during the filing period; the second year in a row that the overall cap had been reach during the filing period; and the fifth consecutive year that the cap was reached on or before the beginning of the new fiscal year on October 1st. Clearly, there is a high demand for H1b category, the supply of which is not sufficient to meet. As was stated by Robert Hoffman, Vice President for Government and Public Affairs at Oracle and Co-Chair of Compete America, “U.S. employers deserve better than a random lottery to determine if they can hire the highly educated candidates they need.” “Congress has failed to address the problem as U.S. universities graduate highly educated individuals who leave to work in competitor nations. This madness must end.” Hoffman’s sentiment is shared by the public as the media publishes numerous articles surrounding the cap. For example, the Houston Chronicle, in a recent article entitled “Vexing visa issue leaving big holes,” comments on how the recent H-1B issue has led some technology giants, like Microsoft, to open offices elsewhere. The author writes, “Unable to land enough visas for a third of the foreign-born engineers and computer scientists it wanted to hire — many of them newly minted graduates of U.S. universities — the Redmond, Wash.-based company opened a software development center just over the Canadian border in 2007.” Likewise, Forbes recently published an article entitled “U.S. Tech Companies Roll the Dice for Worker Visas”, in which the author comments, “Companies who specialize in science, technology, engineering and technology fields say the current system is a Catch 22: the United States is not producing enough homegrown job candidates and won't let companies bring them in, either.” As is evident, the loss of critical talent has hurt the US and its economy. It is up to Congress to take action to resolve this issue and pass a solution to this ever-increasing problem.
For more articles see: http://www.competeamerica.org/news/media_coverage/index.html
OPT Extended to 29 Months
On April 4th, the US Department of Homeland Security released an interim final rule extending the Optional Practical Training (OPT) period for an addition 17 months for qualified F-1 Students. This extension will be available to STEM students, i.e. F-1 students with a degree in Science, Technology, Engineering, or Mathematics, who are employed by businesses enrolled in the E-Verify program. E-Verify is a free program, operated by the Department of Homeland Security in partnership with the Social Security Administration, that assists employers verify the employment eligibility of its employees.
The new rule also addresses the situation where an F-1 student’s status expires prior to their H-1B visa becoming valid (i.e. the “cap-gap”) by automatically extending the period of stay and work authorization for all F-1 students with pending H-1B petitions.
In addition, the proposed rule extends the time period in which a student may apply for OPT up to 90 days before the start of the program and 60 days after its completion. Under the current rules, students must apply for OPT prior to completing the course requirements.
The rule became effective on April 8, 2008, the date it was published in the Federal Register.
http://www.hammondlawfirm.com/alerts/OPT-extended-to-a-total-of-29-months.htm
USCIS Allows F-1 Students to Request Change of Status
USCIS announced today that because of the April 8th OPT extension rule described above it would allow F-1 students whose H-1B petitions were selected in the random lottery for the FY 2009 H-1B cap to request a change of status in lieu of consular notification for approval of their petition. This will eliminate the need for F-1 students to travel abroad following the expiration of their OPT period, prior to the start of their H-1B validity. Such change of status requests must be made within 30 days of the issuance of the receipt notice via email. Please contact your HLG attorney for more information regarding this provision and whether it is applicable to your case(s).
USCIS Link
OFLC Announces Centralized PERM Filings
The Office of Foreign Labor Certification (OFLC) has announced that effective June 1, 2008 all Permanent Labor Certification applications (PERM) will be handled by the Atlanta National Processing Center and all temporary applications (H-2A, H-2B, etc….) will be handled by the Chicago National Processing Center. With this centralized filings, the DOL hopes to “increase operational efficiencies in each program, improve customer service that reduces confusion with respect to where permanent and temporary labor certification applications should be filed, enhance efforts to combat fraud and abuse within and across each program, and promote greater consistency and uniformity in the adjudication of labor certification applications.” To determine whether your case is impacted by this announcement please contact your HLG attorney.
http://www.foreignlaborcert.doleta.gov/pdf/NPC_Process_chng.pdf
DOL Publishes E-3 Visa Regulations
The Department has issued final regulations regarding the E-3 visa classification for Australian nationals. E-3 visas are awarded to nationals of Australia only, and similar to the H-1B classification, under the E-3 visa the nonimmigrant treaty alien must be admitted to the US to perform services in a specialty occupation and the sponsoring employer must file a labor condition application. There is an annual cap of 10,500 E-visas initially awarded. The final regulations are effective immediately.
http://www.foreignlaborcert.doleta.gov/pdf/E3_regs.pdf
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