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H1B NEWS
FY2008
Advanced Degree H1B Cap Reached
4
May 2007
U.S. Citizenship and Immigration
Services (USCIS) announced today that
it has received enough H-1B petitions
requesting exemptions from the fiscal
year 2008 (FY 2008) H-1B cap for "foreign
workers who have earned a master's
degree or higher from a U.S. institution
of higher education" to meet
the congressionally mandated exemption
limit of 20,000. USCIS has determined
that the "final receipt date"
for these exempt H-1B petitions is
April 30, 2007. USCIS will reject
petitions requesting a FY 2008 cap
exemption for "workers with a
master's or higher degree earned from
a U.S. institution of higher education"
that are received on or after May
1, 2007, unless the petition is otherwise
eligible for a separate cap exemption.
Cap
Procedures: In accordance
with USCIS regulations, USCIS has
implemented the following process
for handling H-1B petitions filed
on behalf of workers with a master's
or higher degree earned from a U.S.
institution of higher education seeking
an exemption from the FY 2008 cap:
- USCIS has determined that as of
April 30, 2007, it had received
a sufficient number of H-1B petitions
requesting a FY 2008 cap exemption
on behalf of "foreign worker
who has earned a master's degree
or higher from a U.S. institution
of higher education" to reach
the 20,000 limit. The "final
receipt date" is April 30,
2007.
- USCIS will subject H-1B petitions
received on the "final receipt
date" that request an exemption
from the H-1B cap based on the worker
holding a U.S. Master's or higher
degree to a computer generated random
selection process. USCIS will reject
those filings not randomly selected
and return them along with the filing
fee(s) unless another basis for
an H-1B cap exemption exists.
- USCIS will reject H-1B petitions
requesting this exemption for FY
2008 received on or after May 1,
2007, unless another basis for an
H-1B cap exemption exists.
- The earliest date for which a
petitioner may file a petition requesting
cap subject FY 2009 H-1B employment
or an exemption from the H-1B cap
based on the worker holding a U.S.
Master's degree or higher with an
employment start date of October
1, 2008, is April 1, 2008.
Petitions for current H-1B workers
generally do not count towards the
congressionally mandated H-1B cap.
Accordingly, USCIS will continue to
process H-1B petitions filed to:
- Extend the amount of time a current
H-1B worker may remain in the U.S.
- Change the terms of employment
for current H-1B workers.
- Allow current H-1B workers to
change employers.
- Allow current H-1B workers to
work concurrently in a second H-1B
position.
H1B
Cap Update: Preliminary FY2008 H-1B
Cap Filings
(excerpts
from USCIS Notice)
6 Apr 2007
USCIS announced a preliminary number
of filings today as the tallying of
H-1B petitions received on April 2
and April 3 continues. On April 3,
USCIS announced that it had received
enough petitions to meet the congressionally
mandated cap for fiscal year 2008
(FY2008) and that it would conduct
a computer-generated random selection
of cap-subject petitions filed on
Monday (April 2) and Tuesday (April
3) to determine which cases USCIS
will accept for processing.
During Monday and Tuesday, USCIS
received 133,000 unique pieces of
mail containing H-1B petitions. This
is lower than the original USCIS estimate
of 150,000. USCIS based the initial
estimate on amounts from manifests
received along with the mail. USCIS
reached the updated number following
a physical count of the mail. Each
piece of mail may contain more than
one H-1B petition. It will take USCIS
a substantial amount of time to open
and sort through that volume of mail.
As of Wednesday, 28,052 of the cases
sorted are H-1B petitions subject
to FY2008 congressionally-mandated
cap. Four thousand, seven hundred
and three (4,703) cases are exempt
from the FY2008 H-1B cap, as employers
filed those petitions holding a master's
degree or higher from a U.S. institution.
USCIS will provide regular updates
as the processing of FY2008 H-1B cap
cases continues. Back
to top.
H1B
Quota Reached for FY2008
(Excerpts of USCIS Notice)
03 Apr 2007
U.S. Citizenship and Immigration
Services (USCIS) announced today that
it has received enough H-1B petitions
to meet the congressionally mandated
cap for fiscal year 2008 (FY 2008).
USCIS will use a random selection
process (described below) for all
cap-subject filings received on April
2, 2007, and April 3, 2007. USCIS
will reject and return along with
filing fee(s) all petitions received
on those days that are not randomly
selected.
Cap Procedures:
In keeping with USCIS regulations,
USCIS will use the following process
to handle H-1B petitions subject to
the FY 2008 cap:
- USCIS has determined that as of
April 2, 2007, it had received enough
H-1B petitions to reach the FY2008
H-1B cap and has set the "final
receipt date" as April 2, 2007.
- In keeping with its regulations,
USCIS will subject H-1B petitions
received on the "final receipt
date" and the following day
to a computer-generated random selection
process.
- USCIS will reject all cap-subject
H-1B petitions for FY2008 received
on or after Wednesday, April 4,
2007.
- USCIS will reject and return along
with the filing fee(s) all cap-subject
H-1B petitions that are not randomly
selected.
- Petitioners may re-submit petitions
on April 1, 2008, when H-1B visas
become available for FY2009. This
is the earliest date for which an
employer may file a petition requesting
FY2009 H-1B employment with a start
date of October 1, 2008.
As of late Monday afternoon (April
2), USCIS had received approximately
150,000 cap-subject H-1B petitions.
USCIS must perform initial data entry
for all filings received on April
2 and April 3 prior to conducting
the random selection process. In light
of the high volume of filings, USCIS
will not be able to conduct the random
selection for several weeks.
In order to fully utilize its data
entry and initial processing capacity,
USCIS may choose to distribute filings
received at one service center to
other service centers for data entry.
In the event that USCIS exercises
this option, petitioners may receive
receipt notices or other correspondence
from a service center other than the
one to which the H-1B submission was
sent. USCIS advises employers that
there is no need for concern should
that occur and that there is no need
to contact USCIS.
Cap-Exempt
Petitions: As directed
by the H-1B Visa Reform Act of 2004,
the first 20,000 H-1B petitions filed
on behalf of aliens with U.S.-earned
masters' or higher degrees are exempt
from any fiscal year cap on available
H-1B visas. USCIS does not yet know
how many of these petitions it has
received as those petitions are mixed
with the cap-subject cases received
on April 2 and 3. USCIS will make
a future announcement regarding the
"final receipt date" for
these petitions.
Current
H-1B Workers: Petitions
filed on behalf of current H-1B workers
do not count towards the congressionally
mandated H-1B cap. Accordingly, USCIS
will continue to process petitions
filed to:
- Extend the amount of time a current
H-1B worker may remain in the U.S.
- Change the terms of employment
for current H-1B workers.
- Allow current H-1B workers to
change employers.
- Allow current H-1B workers to
work concurrently in a second H-1B
petition.
USCIS also notes that, in addition
to the cap exemption for aliens with
U.S. earned master's degrees discussed
above, certain H-1B petitions are
exempt from the cap. Those petitions
are not affected by this release.
Back to top.
FY2008
H1Bs Expected to Go Quickly as of
April 1, 2007
28 Mar 2007
The first day to file
new H1Bs to begin Fiscal Year 2008
(which begins October 1, 2007) is
April 1, 2007. Last year, the H1B
quota was filled very quickly--that
is, by June 1, 2006, two months after
filing began, and four months before
the fiscal year started.
However, this year,
due to practitioners' perceptions
of increased demand for new H1Bs,
the H1B cap is expected to be reached
even more quickly, perhaps within
weeks or even days.
Persons with advanced
degrees (at least at the Masters level)
from institutions of higher education
in the U.S. may have more time, since
an additional 20,000 H1Bs have been
allotted to them in addition to the
other 65,000 available. Also, persons
seeking new H1Bs for institutions
of higher education, government research
institutions and persons working for
non-profit research organizations
associated with institutions of higher
education will remain cap-exempt.
However, those moving from such exempt
organizations should note that, if
seeking a position for a private employer,
they will also be subject to the H1B
cap.
Once the cap be reached,
and should Congress not act to increase
it, no new H1Bs will be available
for non-exempt employers until October
1, 2008.
Back to top.
FY2007
Advanced Degree H1B Cap Reached
28 Jul 2006
The Advanced Degree
Cap for H1Bs for the Fiscal Year 2007
was reached July 26, 2006. Petitions
received on July 26, 2006, will be
subject to the random selection process.
FY2007
H1B Cap Reached
1 June
2006
As of June 1, 2006,
USCIS has received sufficient H1B
petitions to meet the congressionally
mandated cap for fiscal year 2007
(FY2007, Oct 1, 2006-Sept 30, 2007).
The "final receipt date"
for H1B petitions subject to the FY2007
annual cap was May 26, 2006. Affected
H1B petitions received on that date
will be subject to the random selection
process described below. Cap-subject
H1B petitions for FY2007 received
by USCIS after the final receipt date
(May 26, 2006) will be rejected. Additional
information regarding the specific
number of H1B petitions processed
may be found at uscis.gov
.
Cap
and Set Asides: Congress
has established an annual fiscal year
maximum of 65,000 H1B visas; this
is known as the H1B cap. Under the
terms of legislation implementing
the U.S.-Chile and U.S.-Singapore
Free Trade Agreements, 6,800 of the
65,000 available H1B visas are set
aside annually for the Chile/Singapore
H1B1 program. As a result of reserving
these 6,800 H1B1 visas for FY2007,
the H1B cap for that fiscal year is
58,200. However, USCIS has added back
to the H1B cap 6,100 unused FY2006
H1B1 visas, providing a total of 64,300
H1Bs, as described below.
Unused
Chile/Singapore H1B1 visa numbers
for a particular fiscal year are to
be used within the first 45 days of
the following fiscal year. Since FY2007
H1B petitions are approved for start
dates beginning no earlier than the
first day of fiscal year 2007, and
reasonable anticipated usage of approved
H1B petitions for any 45-day period
exceeds 8,000, USCIS has incorporated
its reasonable projection based on
H1B1 usage to date (i.e., that 700
H1B1 visa numbers will be used in
FY2006) into the FY2007 H1B cap count
by adding the remaining 6,100 unused
H1B1 visas back into the H1B pool,
resulting in a total pool of 64,300
FY2007 H1Bs. Since unused H1B1 visas
for FY2006 have already been allocated
in this manner, these cannot be used
in a later H1B filing season. USCIS
anticipates that the 6,800 FY2007
H1B1 visas reserved from the FY2007
H1B pool will be handled similarly
with respect to the FY2008 H1B cap
count in calendar year 2007. This
allocation of FY2006 H1B1 visas based
upon reasonable projections of usage
to the end of the fiscal year will
not affect the availability of H1B1
visas in any way; they will continue
to be fully available, with any year-end
difference between actual and projected
usage expected to be minimal.
Back
to top.
Cap
Procedures: In accordance
with the procedures announced in the
Federal Register at 70 FR 23775 (May
5, 2005)(Allocation of Additional
H1B Visas Created by the H1B Visa
Reform Act of 2004) USCIS has implemented
the following process for handling
cap-subject FY2007 H1B petitions:
- USCIS closely monitored FY2007
H1B filings and used projections
to determine the date on which it
received the number of petitions
necessary to reach the annual cap.
- USCIS determined that the cap
had been exceeded as of May 26,
2006, the "final receipt date."
- USCIS will subject H1B petitions
received on the "final receipt
date" to a computer-generated
random selection process. This will
enable USCIS to apply the remaining
number of available H1B visas to
petitions received on that day.
- Cap subject H1B petitions that
are not randomly selected in the
process described above will be
rejected and returned along with
the filing fee(s).
- Petitioners may resubmit the petitions
when H1B visas become available
for FY2008.
- The earliest date for which a
petition requesting FY2008 H1B employment
with an employment start date of
October 1, 2007, is April 1, 2007.
Current
H1B Workers: Petitions
filed on behalf of current H1B workers
do not count towards the annual H1B
cap. According, USCIS will continue
to process petitions filed to:
- Extend the amount of time a current
H1B worker may remain in the U.S.
- Change the terms of employment
for current H1B workers.
- Allow current H1B workers to change
employers.
- Allow current H1B workers to work
concurrently in a second H1B petition.
Back to top.
Cap-Exempt
Petitions: As directed
by the H1B Visa Reform Act of 2004,
the first 20,000 H1B petitions filed
on behalf of aliens with U.S.-earned
masters' or higher degrees will be
exempt from the annual cap on H1B
visas. For FY2007, USCIS has received
approximately 5,830 exempt petitions.
USCIS also notes that Petitions for
new H1B employment are exempt from
the annual cap if the beneficiaries
of those petitions will be employed
at institutions of higher education
or related or affiliated nonprofit
entities, or at nonprofit research
organizations or governmental research
organizations. Thus, petition for
these exempt H1B categories may be
filed for work dates starting in FY2006
or 2007.
H1B in
General: U.S. businesses
utilize the H1B program to employ
foreign workers in specialty occupations
that require theoretical or technical
expertise in specialized fields, such
as scientists, engineers, or computer
programmers. As part of the H1B program,
the Department of Homeland Security
(DHS) and the Department of Labor
(DOL) require U.S. employers to meet
specific labor conditions to ensure
that U.S. workers are not adversely
impacted, while the DOL's Wage and
Hour Division safeguards the treatment
and compensation of H1B workers. Back
to top.
DOS/FAM
Revisions on FTA Chile, Singapore
H1Bs
31
Mar 2004
Summary: The US has
entered into free trade agreements
(FTAs) with Singapore and Chile which
took effect on January 1, 2004. Both
FTAs contain provisions that will
allow the temporary entry of businesspersons
into the territory of the trading
partners to facilitate meaningful
trade. In addition to providing temporary
entry for aliens who qualify under
existing business visa categories
and their dependents (visitors for
business (B- 1), traders and investors
(E-1/E-2), and intracompany transferees
(L-1), both FTAs create a new category
of nonimmigrant professional, H-1B1.
H-1B1 nonimmigrant professionals from
Chile and Singapore will be subject
to the requirements contained in the
Temporary Entry Provisions of the
FTAs. Specifics of these requirements
are set forth in the revised FAM notes
provided in this cable.
Requirements for H-1B1:
Effective January 1, 2004, nationals
of Chile or Singapore may apply at
consular sections around the world
for a nonimmigrant professional H1B1
visa. To qualify, professions must
meet the definition of "specialty
occupation" set forth in the respective
FTA or submit proof of alternative
credentials as set forth in the respective
FTA. The applicant must also submit
a job offer letter from the employer,
proof of labor attestation (certified
ETA 9035 or 9035E), proof of payment
of any special fee, if applicable
and pay the MRV fee. [Currently no
special fee is required]. [Note: Aliens
already in the United States as nonimmigrants
may apply to DHS for a change of nonimmigrant
status to H1B1 pursuant to INA 248.
Such an alien who departs the United
States would need an H1B1 visa to
seek readmission as an H-1B1.] Back
to top.
Numerical limitations:
The FTAs allow for no more than 1,400
professionals from Chile and 5,400
professionals from Singapore to enter
the United States annually. The numerical
limitations for the FTAs are set aside
within the overall H1B Program cap.
No petition required:
The employer of an H1B1 professional
is not required to submit a petition
to the Department of Homeland Security
as a prerequisite for classification
or visa issuance. The applicant is
required to submit evidence of eligibility
for H1B1 classification directly to
the consular officer at the time of
visa application.
As in the H-1B program, employers
of H1B1 professionals must file a
Labor Attestation, using ETA Form
9035 or ETA Form 9035E, Labor Condition
Application (LCA), clearly annotated
by the employer as "H-1B1 Chile" or
"H-1B1 Singapore," with the Department
of Labor (DOL). DOL is required to
certify to the Department that the
LCA has been filed with DOL. Once
certified by DOL, the LCA is sent
to the employer. A copy of the Labor
Condition Application, signed by both
DOL and the employer, will be given
to the employee with the job offer
letter. [NOTE: The validity of the
visa should not exceed the validity
period of the LCA at the time of application.
Back to top.
Most LCAs will have a minimum period
of validity of 18 months. The overall
validity period of the LCA is still
under discussion among the agencies.
But nonetheless, the visa validity
period is limited to that of the underlying
the LCA.]
Temporary entry:
Both FTAs provide for the temporary
entry of nonimmigrant professionals,
which is defined as "...an entry into
the United States without the intent
to establish permanent residence."
The Department's regulation pertaining
to NAFTA [22 CFR 41.59(C)] expands
this definition and should be referred
to for guidance in connection with
the H-1B1 professional. Back
to top.
The following notes will be incorporated
into 9 FAM at 41.53: 9 FAM 41.53
N27 Free Trade Agreement Nonimmigrant
Professionals 9 FAM 41.53 N27
Background.
The President signed free trade agreements
(FTAs) with Chile and Singapore on
September 3, 2003. The FTAs with Chile
and Singapore were authorized by Congress
in P.L. 108-77 and P.L. 108-78 respectively.
Both agreements became effective on
January 1, 2004.
The FTAs with Chile and Singapore
include immigration provisions that
allow for the temporary entry of business
persons into the territory of the
trading partners in order to facilitate
free trade opportunities. The temporary
entry of nonimmigrant business persons
is provided for in Chapter 14 of the
U.S.-Chile Agreement and in Chapter
11 of the U.S.-Singapore Agreement.
The temporary entry chapters in both
agreements establish four categories
of nonimmigrant entry for business
purposes. Three of the categories,
business visitors, traders/investors,
and intracompany transferees, qualify
for visas under the existing B-1,
E-1/E-2 and L-1 visa categories. The
FTAs establish a new fourth category
of temporary entry for nonimmigrant
professionals, the H-1B1 category.
Dependent spouses and children accompanying
or following to join are also eligible
for temporary entry. Back
to top.
9 FAM 41.53 N28 H-1B1 Requirements
9 FAM 41.53 N28.
H-1B1 applications subject
to numerical limitations
Annual numerical limits are set for
aliens who may obtain H-1B1 visas.
1,400 professionals from Chile and
5,400 professionals from Singapore
are allowed to enter the U.S. annually.
These numerical limits fall within
and will be registered against the
existing annual numerical limit (currently
65,000) for H1B aliens. Only principals
are counted against each country's
respective numerical limitation. Initial
applications for H-1B1 classification,
as well as the sixth and all subsequent
extensions of stay, are counted against
the H-1B1 annual numerical limitations.
At the end of each fiscal year, unused
H-1B1 numbers will be returned to
that year's global numerical limit
and will be made available to H1B
aliens during the first 45 days of
the new fiscal year. Back
to top.
DHS is required to maintain the numerical
limits for the H-1B1 category. To
assist DHS in meeting this responsibility,
consular officers will be required
to report to the Directorate for Visa
Services at designated intervals the
number of visas issued to first-time
H-1B1 visa applicants. (Reporting
procedures are currently being developed.
Guidance will be provided once procedures
have been established.)
9 FAM 41.53 N28.2 No petition
required
An employer of an H-1B1 professional
is not required to file a petition
with DHS. Instead, an employee will
present evidence for classification
directly to the consular officer at
the time of visa application.
9 FAM 41.53 N28.3 Applicants subject
to Labor Condition Attestation.
Employers must submit a Labor Attestation
for foreign workers from Chile or
Singapore under the H-1B1 program.
The law requires the Department of
Labor (DOL) to certify to the Department
of State that the appropriate Labor
Condition Application (LCA), ETA Form
9035 or ETA Form 9035E, has been filed
with DOL. If certified, the employer
transmits a copy of the signed, certified
LCA to the alien together with a written
offer of employment. At the time of
visa application, the alien will present
a certified copy of the LCA, clearly
annotated by the employer as "H- 1B1
Chile" or "H-1B1 Singapore," as proof
of filing. Back to
top.
As discussed fully above, the validity
of the visa should not exceed the
validity period of the LCA.
9 FAM 41.53 N28.4 H-1B1 Professionals
in specialty occupations
The new H-1B1 category allows for
the entry of nonimmigrant professionals
in "specialty occupations." The statutory
definition of "specialty occupation"
is found at 8 U.S.C. 1184(i)(1)(A)
and (B)]provides that "...an occupation
that requires- (A) theoretical and
practical application of a body of
specialized knowledge; and (B) attainment
of a bachelor's or higher degree in
the specific specialty (or its equivalent)
as a minimum for entry into the occupation
in the United States." The regulatory
definition incorporates the statute
verbatim and can be found at 8 CFR
214.2. Consular officials should refer
to this section for guidance in connection
with an applicant's qualifications
as an H-1B1 professional. Back
to top.
However, while the statutory and
regulatory definition of the term
"specialty occupation" is the same
for H-1B and H-1B1, the statute and
regulations governing the beneficiary
qualifications differ from H-1B to
H-1B1 with respect to licensure as
discussed below in this cable.
Both agreements allow for alternative
credentials for certain professions.
The U.S. has agreed to accept alternative
credentials for Chilean and Singaporean
nationals in the occupations of Disaster
Relief Claims Adjuster and Management
Consultant with a combination of specialized
training and 3 years experience in
lieu of the standard degree requirements.
For Chilean nationals only, Agricultural
Managers and Physical Therapists can
also qualify with a combination of
a post-secondary certificate in the
specialty and 3 years experience in
lieu of the standard degree requirements.
Consular officers may accept specified
documentary evidence of alternative
credentials. Back to
top.
9 FAM 41.53 N28.5 Temporary Entry
Both agreements provide for the temporary
entry of professionals into the U.S.
Temporary entry is defined in both
agreements as "an entry into the United
States without the intent to establish
permanent residence." The alien must
satisfy the consular officer that
the proposed stay is temporary. A
temporary period has a reasonable,
finite end that does not equate to
permanent residence. The circumstances
surrounding an application should
reasonably and convincingly indicate
that the alien's temporary work assignment
in the United States will end predictably
and that the alien will depart upon
completion of the assignment. An intent
to immigrate in the future, which
is in no way connected to the proposed
immediate trip, need not in itself
result in a finding that the immediate
trip is not temporary. An extended
stay, even in terms of years, may
be temporary, as long as there is
no immediate intent to immigrate.
H-1B1 nonimmigrant professionals
are admitted for a one- year period
renewable indefinitely, provided the
alien is able to demonstrate that
he/she does not intend to remain or
work permanently in the U.S. Back
to top.
9 FAM 41.53 N28.6 Licensing Requirements
For admission into the United States
in a specialty occupation, an alien
must meet the academic and occupational
requirements. While the requirements
for classification as an H-1B include
licensure, requirements for classification
as an H-1B1 nonimmigrant professional
do not include licensure. Licensure
to practice a given profession in
the United States is a post-entry
requirement subject to enforcement
by the appropriate state or other
sub-federal authority. Proof of licensure
to practice in a given profession
in the United States may be offered
along with a job offer letter, or
other documentation in support of
an application for an H-1B1 visa.
However, admission/classification
should not be denied based solely
on the fact that the applicant does
not already hold a license to practice
in the United States. [Note: Aliens
seeking classification as H-1B1 are
subject to INA 212(a)(5)(C)Uncertified
Foreign Health Care Workers. DHS is
expected to publish regulations that
will go into effect for nonimmigrant
healthcare workers in July 2004.]
Back to top.
9 FAM 41.53 N28.7 Fees
A Special fee may be imposed for
initial classification or certain
extensions of stay as an H-1B1 worker,
if such a fee is required for the
global H-1B program. Currently there
is no special fee required of the
petitioner or employer of an H-1B
or H-1B1 worker.
9 FAM 41.53 N28.8 H-1B1 Visa Application
Procedures
A national of Chile or Singapore
must meet the general academic and
occupational requirements for the
position pursuant to the definition
cited. Proof of alternative credentials
must be submitted for certain professions
as discussed in 9 FAM N27.5 B.
An applicant must submit evidence
that his or her employer has filed
an LCA with DOL covering the applicant's
position. A certified ETA 9035 or
9035E, clearly annotated as "H-1B1
Chile" or "H-1B1 Singapore" must be
submitted as evidence of filing.
An applicant must submit evidence
that the employer has paid any applicable
fee imposed.
An applicant must submit evidence
that his or her stay in the United
States will be temporary (a letter
or contract of employment should evidence
that the employment is being offered
on a temporary basis).
An applicant must pay the Machine
Readable Fee or provide proof of payment.
Aliens who were admitted to the United
States as nonimmigrants may apply
to DHS for a change of nonimmigrant
status to H-1B1 pursuant to INA 248.
Such an alien who departs the United
States would need an H-1B1 visa to
seek readmission as an H-1B1.
Case specific inquiries may be referred
to the respective VO/L/A officer assigned
to cover the regional portfolio for
the post in question. Back
to top.
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