H-1B SEASON FOR APRIL 1, 2013 FILINGS

It's H-1B season again with everyone in our office working very hard to make sure all of our H-1B cap cases are going to be filed on time by April 1, 2013. For our many clients who have been waiting around since last June when the cap was reached, it is a good time.

April 1, 2013 represents the first day when H-1B petitioning employers and H-1B employees will be able to apply to USCIS for an H-1B petition for employment in government fiscal year 2014 (which starts on October 1, 2014). All H-1B visas for FY2013 have already been exhausted as of June 2012.
Employers who wish to hire professionals utilizing the H-1B visa program and employees who are looking for visa sponsorship will have to act much quicker this year than before. While we do not think that the H-1B cap will be reached on the first day available (April 1, 2013), we do think the cap will be reached in April and we are planning to file all of our cases on April 1 or April 2, 2013, so we do not take any chances.
Remember, these are for H-1B visas for start date on October 1, 2013, but USCIS allows people to file up to 6 months in advance. It is important to file in advance for two important reasons: one, by October 1, all the visas will be gone. Second reason is that students in F-1 OPT status can receive an automatic extension of stay and ability to continue working throughout October 1, 2013 if they file on time for a change of status from F to H-1B.
Our firm continues to help employers to obtain H-1B visas for their employees and we urge everyone that is interested to contact our office as soon as possible to start the process to secure their visas. Please call 770-913-0800 or e-mail atlanta@visalaw.com or go to Our office URL which is http://www.visalaw.com/atlanta.html 

TECHNOLOGY VIRTUAL MARCH FOR INNOVATION

The technology industry will use social media for a virtual march on Washington so it can win support for very needed immigration reform. The March for Innovation, launched by the Partnership for a New Economy with technology and venture capital leaders is designed to build grass-roots support for providing visas to high-skilled workers and entrepreneurs, and giving green cards to foreigners who graduate from U.S. universities with advanced degrees in science, technology, engineering and math.

NEW IMMIGRATION INNOVATION ACT GREAT FOR PROFESSIONALS

The new immigration innovation act, also called ISquared proposed in the Senate contains a number of great fixes to the backlogs and shortages in the H-1B visa category and the green card categories for professional workers.
The first piece of good news is that the H-1B visa cap would immediately increase to 115,000 per year and allow for additional visas if the cap is reached within the fiscal year. Market based demand versus the fixed low number of 85,000 we have today.
Also, the proposal allows for unlimited H-1B visas for people with advanced degree graduates of American universities and unlimited green cards for them also. Woohoo!
There is great support for this bill out of the business community. Great news for a change!

COLLEGE-EDUCATED IMMIGRANTS IN THE UNITED STATES

A recent report by Qingqing Ji and Jeanne Batalova for Migration Policy Institute paints an interesting picture about college-educated immigrants in the United States.
Contrary to a widely held view, immigrants in the United States have an expansive range of education levels, with about one in three immigrants having obtained a college degree.
Among the key highlights:

• One in six college-educated adults was born abroad. 
• The college-educated immigrant population grew faster than their native counterparts in the 1990s and 2000s. 
• College-educated immigrants were younger than their native counterparts. 
• Almost three-quarters of foreign-born, college-educated adults were Asian and white. 
• About 17 percent of college-educated immigrants were of Latino origin. 
• The foreign born were more likely to hold a doctorate or professional degree than the native born. 
• Of the 9.4 million college-educated foreign born, one-third arrived in the last 11 years. 
• Over half of all college-educated immigrants came from Asia, with India, the Philippines, and China being the top three origin countries. 
• College-educated immigrants were more likely to be unemployed than the native born. 
• About one in ten college-educated adults was self-employed. 
• Foreign-born, college-educated workers were more likely to be in high-tech, science, or engineering occupations.

It is amazing that such a large percentage of our college-educated people living in the United States were born abroad. Unfortunately, the immigration system in our country prevents many qualified college graduates to get here and remain here. It's time for immigration reform!

USCIS DENIES FEWER H-1B CASES IN 2012 COMPARED WITH 2011

Some good news regarding H-1B statistics data. USCIS recently released statistics on H-1B receipts, approvals, denials and other statuses such as administrative closures for FY2012.
According to the statistic, in Fiscal Year 2012, USCIS received 93,152 application and approved 85,273 H-1B cap cases (the others are transfers or change of employers).
Out of all H-1B cases, USCIS has denied 3,899 cases (versus 5,575 denials the year before on approximately the same number of filings in FY 2011), so this is a good trend that less of these petitions are denied overall. However, no statistic was issued on the number of H-1B RFEs (or requests for additional evidence). This is a significant improvement over FY 2010 where 102,343 H-1B petitions were filed and a whopping 12,120 were denied. This was mainly due to the issuance of the Neufeld memo on the employer-employee relationship and a high rate of denial for IT consulting companies that have been hammered by that memo. Now it is better and approvals are forthcoming even for IT consulting clients.
Overall, there is some good news here with less denials - however the administrative closure and other actions - in 2,163 petitions versus 1,719 in FY2011 may indicate that more petitioners withdrew H-1B petitions versus last year for unknown reasons.

USCIS DIRECTOR ACKNOWLEDGED WEAKNESS OF IMMIGRATION SYSTEM

From ILW.COM:
Speaking at MIT recently, USCIS Director Alejandro Mayorkas acknowledged that our current immigration system is stifling economic prosperity, particularly in the high-tech and start-up fields. To combat this, Mayorkas notes the service is training additional adjudicators to handle petitions like H-1B's and that adjudicators have been advised to be somewhat less critical of petitions coming from start-ups than they were five years ago. Professor Vivek Wadhwa lauded Mayorkas' moves, but also raised the continuing issue of human error that USCIS has not been able to properly address - that the same petition before different adjudicators might yield disparate results. Wadhwa was also critical of the USCIS policies that make movement by entrepreneurs difficult and time consuming, often to a point where those bright people choose not to bother with hassle that accompanies immigrating to the U.S. USCIS deserves some credit for publicizing immigration options for entrepreneurs, like through the new "Entrepreneur Pathways" website, but the service has not yet done the heavy lifting, so to speak - relaxing its draconian policies that Mayorkas publicly admits no longer work in today's global economy and cutting out unnecessary red tape. How else can and should the service tackle this growing problem?

Here are a few ideas of my own:
First, get rid of the Neufeld memo requiring "employer-employee" relationship in the H-1B context. This is ridiculous that an entrepreneur who is a majority shareholder in a business cannot legally work in it under an H-1B visa. It was allowed before and should be allowed now. Other temporary visa types permit this, why is the H-1B different?
Second, limit the RFEs or request for additional evidence in legitimate cases. Open up communications with immigration lawyers who can pinpoint problems in the system and punish/discipline USCIS officers who are abusing the system and creating problems for legitimate applications.
Third, approve National Interest Waiver or NIW petitions for entrepreneurs that have technology inventions or employ a certain number of U.S. citizens.
I have a few more ideas but the top 3 are the most critical right now.

HOUSE PASSES STEM BILL

The STEM Jobs Act (H.R. 6429) has passed the U.S. House of Representatives. This is a bill to allow 55,000 additional immigrant visas to U.S. graduates of STEM (Science, Technology, Engineering and Mathematics) in advanced degree programs.
However, the House bill is not likely to pass the Senate because this is not really an increase of the overall immigrant visa pool, which is what is really needed (both for the advance degree category known as EB-2 and the professionals or skilled workers known as EB-3).
The STEM Jobs Act would end the Diversity Visa (DV) lottery program that awards visas to people from countries with low rates of immigration to the U.S. to increase the diversity of immigrants coming to the U.S. Many Democrats oppose ending that program and President Obama also opposes the STEM bill because he wants it as part of comprehensive immigration reform, which he wants to pass next year.
Comprehensive Immigration Reform is sorely needed but smaller steps would also be very helpful. There are many things the President and USCIS Director Mayorkas could do now to fix without the need to wait for Congress. I am waiting on Director Mayorkas to call me at 770-913-0800 and I will explain (but I will not be holding my breath)...