UPDATE ON H-1B PROFESSIONAL VISA PROCESSING
Few H-1B petitions submitted to USCIS (U.S. Citizenship and Immigration Services) for FY2012 processing: On April 1, employers began filing H-1B petition for their employees who require a first-time H-1B visa for work that will commence on Oct. 1, 2011. As of April 7, about 10,400 H-1B cap-subject petitions were receipted by USCIS. These numbers are significantly down from past years, including 2010, when 19,100 petitions were filed for the coveted work visa during the first week of April.
This slow start to the H-1B filing season is not just due to the sagging economy; employers increasingly have been deterred from petitioning for their employees as more and more hurdles are thrown in their path. Last year, USCIS altered its definition of what constitutes a valid H-1B employer-employee relationship, imposing new rules on the types of activities in which H-1B workers can engage. It also began to closely scrutinize the authorship of credentials evaluations where education and work experience are combined and increased field audits of H-1B employers. More recently, USCIS has imposed a requirement that H-1B employers attest that they are in compliance with Export Administration and International Traffic in Arms regulations regarding the release of controlled technology or data. Few employers are affected but all must make a legally binding attestation, which in turn often requires input from counsel. This attestation may be delaying some filings and having a chilling effect for others.
New electronic H-1B registration proposed by USCIS would take effect next year: In an effort to administer the H-1B program more fairly and efficiently, DHS has proposed a change to the process of how cap-subject H-1B petitions are filed, which, if adopted, would affect the filing of H-1B petitions next year. The rule would require H-1B employers who seek to petition for H-1B cap-subject workers to first file electronic registrations with USCIS during a designated registration period. The proposal, says USCIS, could save U.S. businesses millions of dollars and make the process less cumbersome. USCIS estimates that the registration process would take 30 minutes to complete. Those employees selected can then complete the application process once they know that a visa is available. (The regulation can be found at http://edocket.access.gpo.gov/2011/pdf/2011-4731.pdf.)
Maryland School District’s H-1B program under fire: Maryland’s Prince George’s County School District (PGCSD), located just outside Washington, D.C., is facing a $5.9 million fine for major violations of the H-1B program over a five-year period. The Department of Labor (DOL), following a one-year investigation, announced that PGCSD illegally required teachers to pay thousands of dollars in filing fees that the school district was required to pay. DOL ordered PGSCD to reimburse teachers $4.2 million in fees and pay an additional $1.7 million fine for its conduct. The school system may also be barred from hiring any new foreign workers for two years.
EMPLOYMENT-BASED SECOND PREFERENCE ADVANCES FOR INDIAN NATIONALS AS DEMAND FOR PRIORITY WORKERS FALLS
Since October, there has been a dramatic reduction in demand for employment-based first preference immigrant visas (EB-1 category). Consequently, the Department of State, in its May Visa Bulletin, has advanced the employment-based second preference (EB-2) category, making approximately 12,000 additional numbers available to the longest pending cases without regard to nationality. Indian nationals are the largest beneficiaries of the extra visa numbers: their cut-off date for EB-2, previously stuck for months at May 8, 2006, has advanced to July 1, 2006. Despite this trickle down of numbers, the overall impact on priority dates is not significant. Massive backlogs remain the order of the day.
On the family side, continued heavy applicant demand for numbers in the family-based first preference (F1) category (sons and daughters of U.S. citizens) has required the retrogression of priority dates across the board for most nationalities. The family-based backlogs chargeable to India for June 2011 are as follows:
- F-1. First Preference (Unmarried sons and daughters of U.S. citizens) – May 1, 2004
- F-2A. Second Preference A (Spouses and unmarried children under 21 of LPR) – Aug 22, 2007
- F-2B. Second Preference B (unmarried sons and daughters 21 and over of LPR) – April 15, 2003
- F-3. Third Preference (Married sons and daughters of U.S. citizens) – June 1, 2001
- F-4. Fourth Preference (Brothers and sisters of U.S. citizens) – March 8, 2000.
Dilip Patel of Dilip Patel Law Firm (Business and Immigration Attorneys) is board certified in immigration and nationality law. He can be reached at (813) 855-0066, e-mail [email protected] or visit www.dplawfirm.com