The Law Offices of Robert Nadalin

H-1B Update


The H-1B visa is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals. USCIS will begin accepting petitions for Fiscal Year (FY) 2013 H-1B visas from Monday, April 2, 2012. The soonest these visas can be used for work authorization will be October 1, 2012, which is the start of FY 2013.

For FY2011, the H-1B cap was reached on January 25, 2011. For FY2012, the H-1B cap was reached two months sooner on November 22, 2011. While it is impossible to predict exactly when the FY2013 H-1B cap will be reached, it may be the case that new H-1B visas will become unavailable sometime over the course of the summer, and possible that the quota may be exhausted much sooner than that. Any proposed new H-1B petitions not filed in April or May of 2012 run a high risk of encountering the cap. Given the high level of unpredictability regarding the cap, companies may want to initiate the petition process as soon as foreign workers in need of H-1B sponsorship are identified.

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 acknowledged as received by the CIS will not be affected. Further, some employees affected by the cap may have additional work visa options including F-1 practical training, TN, E, J, L, O-1 and even permanent resident visas. Other 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 may be considering for H-1B status.

Form I-9 Update

On Tuesday, March 27, USCIS published a notice in the Federal Register inviting comments on a revised version of Form I-9. Employers must complete this form for all newly-hired employees to verify identity and authorization to work in the United States. USCIS will accept comments on the revisions until May 29, 2012.

The entire update can be viewed here.

Beyond the revised form referenced above, USCIS and ICE are also working on the development of a “Smart I-9,” which would be accessed through the USCIS I-9 Central website. The new electronic I-9 is expected to include features that prevent persons who complete the form from making common errors such as forgetting to enter the date of hire, failing to enter the required signatures and dates, or incorrectly completing the Employer Review and Verification document review section of the form. USCIS is hoping to complete this project sometime within calendar year 2012.

EB-2 Retrogression

In a liaison meeting of March 16, 2012, the State Department announced that from May 1, 2012 the EB-2 priority dates for India and China-mainland born foreign workers is expected to retrogress to August of 2007. It is understood that USCIS may already be applying this retrogression to currently pending I-485 applications, which may be held in abeyance until additional immigrant visa numbers become available.

The priority date is a foreign worker’s place in the green card (lawful permanent residence) quota line, and is established at the time a labor certification application is filed with the Department of Labor or when an I-140 immigrant petition is filed with USCIS. The 140,000 numbers made available each year are allocated among the five employment based categories. The EB-1, EB-2, and EB-3 preference categories are each allocated 28.6% of the visa numbers. The available visas are allocated to applicants based on preference category and priority date. If the number of applicants exceeds the number of available visas, the preference category becomes backlogged, and a cut-off date is applied to limit the number of cases that can be approved under a given preference category. Another part of the law limits the number of applicants from any one country to 7% of the total, which results in earlier cut-off dates for EB-2 applicants from India and China.

The priority dates are tracked by the State Department and announced through the monthly publication of the Visa Bulletin. I-485 applications to adjust status to lawful permanent residence (green card status) can be filed in any month in which the Visa Bulletin lists a current priority date. The Visa Bulletin is updated monthly, and the priority dates can change from month to month, sometimes moving backwards or forwards by months or even years a time. This means that some applicants able to enter the I-485 processing queue may have priority dates that later become backlogged. The cases for such applicants may then continue to pend for months, or even years, until the priority date cut-off advances past their personal priority date.

Interview Waiver Pilot Program in India

Applicants applying to renew a B1/ B2 visitor visa in India within 48 months of the expiration of the previous visa may obtain a waiver of the in-person interview requirement. The reviewing consular officer will still retain the authority to require the interview on a case by case basis if the applicant’s personal appearance becomes necessary to the process, although it is hoped that this will be unnecessary for the majority of applications that fall within the announced criteria. At this time, the interview waiver policy only applies to visitor visa applicants, and not to other categories of visa applicants. If the pilot program goes well, it is hoped that the waiver policy will be extended to other visa categories, which would be a return to the policies that were in place pre-9/11.

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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.