The Law Offices of Robert Nadalin

FY 2007 U.S. Advanced-Degree H-1B Cap Reached


USCIS (Citizenship and Immigration Services) announced that as of July 26, 2006, the U.S. advanced-degree H-1B cap for FY (Fiscal Year) 2007 had been reached. As the regular track quota of 58,200 H-1B visas has also been exhausted, no new H-1B visa petitions can be filed prior to April 1, 2007, and no new H-1B visas will be available for use by new employees prior to October 1, 2007, which is the first day of the 2008 fiscal year.

Please note that the cap only affects H-1B visa petitions filed on behalf of a foreign worker for the first time. H-1B extension cases, H-1B change of employer cases, or initial cases already acknowledged as received by the CIS should not be affected. Some employees affected by the cap may have additional work visa options including F-1 practical training, TN, E, J, L, and O-1 visas. Others foreign workers may need to wait outside of the U.S., possibly at a foreign subsidiary, until new H-1B visas become available. As the available case options will be unique to each individual employee, we recommend that you contact an immigration attorney regarding any specific employees you had been considering for sponsorship under the H-1B category.

I-140 Premium Processing

Premium processing is a service provided by the CIS through which it promises a 15 day response time upon the payment of an additional $1000 filing fee. At this time, premium processing is only available for certain categories of employment related nonimmigrant visas. Currently, USCIS is continuing in its preparation to extend premium processing to employment based immigrant petitions for employees pursuing lawful permanent residence. While USCIS has not committed to a specific timetable, it has indicated through liaison channels that this could become effective as soon as the end of August.

45-Day Letters and the Reopening of Closed Labor Certification Applications

The Department of Labor (DOL) has been sending out contact letters, also known as “45-day letters,” for all traditional labor certification cases pending at its Backlog Elimination Centers (BEC). These letters must be responded to within 45 days of the date of the letter or the case will be closed. As of July 21, 2006, the DOL believes that it has sent letters for all active cases. If an employer or the employer’s attorney did not receive a case contact letter by this date, an e-mail can be sent to the appropriate BEC to confirm that the case has not been closed. The e-mail addresses are: nobeccontact@dal.dflc.us for Dallas and nobeccontact@phi.dflc.us for Philadelphia. The e-mail should contact the following information:

1.) Attorney name and address;
2.) Employer’s name and address;
3.) Foreign worker’s name and address;
4.) The priority date, which is the date the case was first received by the government;
5.) Confirmation of the state where the case was filed and any known case number or case numbers.

If a 45 day letter has not been received, the case may have been lost or closed and so the steps outlined above would be necessary to place the case back on track. Regarding closed cases, the DOL has erroneously closed a number of pre-PERM labor certification applications currently pending at the BEC. Pursuant to a recent notice, it has provided a separate procedure through which these cases can be re-opened. Notice must be sent to a specific e-mail address where the case is pending: Dallas at reopenrequest@dal.dflc.us or Philadelphia at reopenrequest@phi.dflc.us. The notice must be sent within 30 days of July 10, 2006 or within 30 days of the receipt of a Case Closed letter, whichever is later, and it must contain the following information:

1.) The subject line should read “Request to Reopen”;
2.) The request should be limited to one specific case, not multiple cases;
3.) The name of the employer and the correct current address;
4.) The correct ETA case number from the DOL, not the state case number. Alternatively, an explanation as to why the case number cannot be provided should be submitted;
5.) Correct current contact information for the employer’s attorney (including name, mailing address and e-mail address);
6.) The name of the foreign worker beneficiary;
7.) The reason for the request, such as:

a. “I am the employer/ attorney on the application described below. I did not receive a 45 day letter but subsequently received a case closure letter.”
b. “I am the employer/ attorney on the application described below. I received neither a 45-day letter nor a case closure letter, but the H-1B mailbox indicates my case has been closed.”
c. “I am the employer/ attorney on the application described below. I received and responded timely to a 45-day letter but subsequently received a case closure letter.”

To date, the DOL has been reasonable in re-opening cases under this procedure, often within several days of receiving the above listed information.

The Western Hemisphere Travel Initiative

In 2004, the Intelligence Reform and Terrorism Prevention Act (IRTPA) mandated that the U.S. Secretaries of Homeland Security (DHS) and Department of State (DOS) work together to develop and implement a plan to require U.S. citizens and foreign nationals to present a passport or other secure document confirming identity and citizenship when applying to enter the U.S. In order to meet this mandate, the DHS and DOS have established a program known as the Western Hemisphere Travel Initiative (WHTI) which will require all travelers, including U.S. citizens, to have a passport or other document that establishes identity and citizenship in order to enter or re-enter the U.S. from abroad. Other acceptable secure documents would include DOS issued Border Crossing Cards for Mexican citizens and DHS issued SENTRI passes. These documents all contain a photo I.D. and biometric identifiers, including fingerprints. The previous WHTI implementation date of December 31, 2005, was extended to December 31, 2006, for air and sea ports and December 31, 2007, for all land border crossings. These implementation dates may be extended yet again.

Foreigners from many countries already face strict document requirements. Prior to coming to the U.S., many are already required to obtain a machine readable visa stamp, which would comply with the terms of the proposed program. When implemented, WHTI would have the largest impact on Canadians, U.S. citizens, and persons applying to enter the U.S. under the visa waiver program. Most of the visa waiver countries have taken steps to issue machine readable passports containing the required biometric identifiers and so the impact on visa waiver applicants will likely be less dramatic than the impact on Canadians and U.S. citizens. Canadians and U.S. citizens have grown accustomed to the more deferential treatment they currently receive at the border as they can now enter the U.S. by presenting documents which do not contain a photo or current biometric information, such as a birth certificate. In order to avoid a mad rush to obtain a passport at the end of this year if the WHTI deadline is not extended, it may be appropriate for Canadian and U.S. citizen employees who regularly cross the northern or southern border to obtain a machine readable passport if they have not already done so.

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About the Author

Attorney Robert Nadalin is a highly qualified and dedicated California Immigration Lawyer who can help you in your time of need. Learn more about your legal options during an honest consultation in San Diego, CA.