USCIS UPDATES 2012 H-1B COUNT ON 4/22/2011: AT 8,000

USCIS just released another cap update for FY2012 - as of April 22, 2011, they receipted 8,000 H-1B petitions subject to the regular cap plus 5,900 petitions subject to the advanced degree cap. It looks like 900 H-1B petitions were filed this week based on last week's report, still very low usage but we all know what the economy is like.

WIKILEAKS CABLES DESCRIBE A FEW H-1B FRAUD ATTEMPTS

Some State Department cables that were released by WikiLeaks show concern for fraud in a few countries whose nationals rarely use the H-1B visas: Mexico, Libya and Iceland. The cables are only a collection of anecdotes explaining attempts of visa fraud or misrepresentation.
The consular officers sending those cables described what the fraud attempt was in each case, such as falsifying pay records or educational qualifications or experience.
These are individual cases only and not a systematic problem with the H-1B visa or its integrity and it is good that these few isolated cases got flagged by the consular officers. This is their job.
For the entire Computerworld article, go to: http://www.computerworld.com/s/article/9215855/WikiLeaks_cables_describe_H_1B_fraud_attempts.

USCIS UPDATES 2012 H-1B COUNT ON 4/15/2011: AT 7,100

USCIS issued its weekly H-1B cap update -- as of April 15, 2011, it has received approximately 7,100 H-1B cap-subject petitions plus 5,100 petitions for people with U.S. advanced degrees. Still showing low usage for the quota this year.

H-1B USAGE OFF TO SLOW START

The storyline continues. Last year, 13,500 regular H-1B applications were counted in the first week and 5,600 advanced degree applications. This year 5,900 regular applications were received in the first week and 4,500 advanced degree petitions. USCIS just reported that in the second week of counting, 7,100 regular cases were receipted and 5,100 advanced degree applications. That's roughly the typical weekly usage we saw last year and if the pace doesn't change much, the cap will potentially be hit one to two months later than for FY2011. Later this summer as the cap starts to get a little closer to being reached, we'll start issuing projections of the dates each quota is likely to be filled.

FEDERAL JUDGE PROTECTS H-1B EMPLOYEES FROM WRONGFUL ARREST

A recent ruling from a federal judge in Connecticut confirmed that as the American Immigration Lawyers Association (AILA) argued in an amicus brief, the government may NOT arrest H-1B employees for whom there are pending and timely filed extension applications. The decision in El Badrawi v. United States, was issued by U.S. District Judge Janet C. Hall, relied mainly on the federal regulations that allow H-1B employees to continue working for 240 days pending the adjudication of their extension applications, and that “work authorization is part and parcel of their authorization to be in the country, not a separate matter.” Thus, when the government permits the initiation of removal proceedings during this period would therefore be unfair to employees and employers alike, according to the decision. The plaintiff in this law suit is a Lebanese national, who was employed as a medical researcher when his employer requested an H-1B extension in early 2004, more than a month before his H-1B status expired. Though his employer paid a $1,000 fee for premium processing of the application, the government never adjudicated it and refused to respond to requests for information. Nearly seven months after the request was filed, immigration agents arrested the plaintiff for allegedly “overstaying” his initial period of admission. He was placed in removal proceedings and detained for nearly two months. The amicus brief contained supporting declarations from three companies that rely on H-1B workers, arguing that arresting non-citizens with pending extension applications would threaten to disrupt key sectors of the U.S. economy and undermine the goals of the H-1B program. The decision is wonderful and really uses common sense (something the Federal Government is often lacking) - why would someone who can legally continue working while an extension application is pending could be arrested, detained and deported? The decision really was the right thing to do. What a sad set of circumstances for this plaintiff.

USCIS ISSUES F-1 H-1B CAP GAP Q&A

USCIS just issued a cap gap questions and answers page dealing with the question of who is eligible to benefit from the gap cap rule. The USCIS regulations allow people who were in F-1 OPT status with pending or approved H-1B petitions to remain in valid F-1 status (and have continued employment authorization) even though the F-1 status or EAD would otherwise expire. Because graduates of most U.S. universities graduate in May or June, and the H-1B start date cannot be sooner than October 1 (because that is when the U.S. government's fiscal year starts) then there is a gap in status between the expiration of the F-1 status (or OPT) and start date of H-1B, known as cap-gap. In the past, these beneficiaries would have to switch to another status or leave the U.S. but under the new rules this can be avoided if an employer files an H-1B visa petition for them with a start date of October 1, 2011 and a change of status from F-1 to H-1B is requested on the I-129 petition. The other main requirements for that to happen are that the H-1B petition would be timely filed (before the expiration on the student's I-20 or OPT expiration date or within the 60-day grace period after expiration), and non-frivolous. Once the extension is filed, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed. If the student’s H-1B petition is approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked. If the student’s H-1B petition is not approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to depart the United States. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt. The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1. The student should then return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted. The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status. In order to enjoy from the cap-gap regulation, the students must remain in the United States and cannot leave, otherwise their status would be terminated and they would have to wait abroad until their H-1B start date of October 1 (well technically they could enter up to 10 days before that, which would be September 21). The entire Q&A is available on the USCIS public website at: http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=1d175ffaae4b7210VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD

STATE DEPARTMENT REVISES H-1B LICENSE GLITCH

The U.S. State Department issued a correction to the Foreign Affairs Manual. 9 FAM 41.53 N4.1 revised on 3-31-11 states as follows: "The requirements for classification as an H-1B nonimmigrant professional may or may not include a license because States have different rules in this area. If a State permits aliens to enter the United States as a visitor to take a licensing exam, then USCIS will generally require a license before they will approve the H-1B petition. However, some States do not permit aliens to take licensing exams until they enter the United States in H-1B status and obtain a social security number. Therefore, a visa should not be denied based solely on the fact that the applicant does not already hold a license to practice in the United States." CT:VISA-1635. This is not new news because USCIS has been applying this standard for years, but it was not reflected in the consular regulations. Of course, none of this would matter if the government will be shut down and consulates will cease issuing visas.