The H-1B Cap
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, with 5400 of these visas set aside for Singapore and 1400 for Chile. The result is that only 58,200 regular track H-1B visas are available to most H-1B applicants.
The CIS (Citizenship and Immigration Services) began accepting petitions for Fiscal Year (FY) 2008 H-1B visas on Monday, April 2, 2007. The soonest these visas can be used for work authorization will be October 1, 2007, which is the start of FY 2008. Last year, the quota of 58,200 regular track H-1B visas was exhausted on May 26, 2006. The 20,000 H-1B visas for persons who had obtained a master’s or higher degree from a U.S. university was exhausted on July 26, 2006.
This year, the FY2008 H-1B regular track quota was exhausted on April 3, 2007. Pursuant to the current regulations, the CIS accepted all regular track cases received on Monday, April 2 and Tuesday, April 3, 2007. As approximately 119,193 cases were accepted on these two days, the CIS will use a lottery system to assign the available 58,200 visas to the 119,193 eligible cases. The cases that do not receive a number will be returned to the filer along with the uncashed checks for the filing fees. The CIS estimates that it will take several more weeks to complete the lottery and intake processes for these cases.
The separate quota of 20,000 visas for foreign workers holding a master’s or higher degree from a U.S. university remains open. In a press release dated April 10, 2007, the CIS confirmed that it had received a total of approximately 12,989 of these cases so far.
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 and H-1B change of employer cases 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.
The CIS has proposed raising its filing fees. These new fees may become effective as soon as June of 2007. Examples of the fee increase include: an “adjustment” from $190 to $320 for Form I-129, which is used to file H, L, E and O visa cases, and an increase from $195 to $475 for the I-140 immigrant petition form, which is filed by employers to sponsor foreign workers for lawful permanent residence (a.k.a. green card status). The filing fee for an I-485 application, which is the last step of the green card process, will be increased from $325 to $905, although the new $905 fee is supposed to also include the fees for EAD work authorization and advance parole travel authorization documents. The I-485 increase may be especially unfair to persons who would not otherwise need to apply for an EAD or advance parole, such as those who are already eligible to work or travel pursuant to a valid H or L visa status, or those who cannot or do not want to work or travel for other reasons. Although the CIS is currently accepting comments from the public regarding these increases, the reality is that regardless of the comments received, the CIS will go forward with the increases as proposed unless Congress stops it. Employers considering filing new cases may want to open and file any new matters in April or May if possible.
The Department of Homeland Security has introduced the Traveler Redress Inquiry Program (TRIP) to assist travelers in seeking the resolution of misidentification issues at ports-of-entry, or if they have been unfairly delayed or denied boarding for additional screening when traveling. Additional information, including the on-line inquiry form can be found here .
In the past, children have been added to the terrorist watch “no fly list” and a significant number of non-citizens have been flagged for mandatory secondary inspection every time they reenter the U.S. This process is not only infuriating for the person mis-tagged, it is also a waste of DHS resources to clear the same persons over and over again. Hopefully, the TRIP program will help to minimize a significant hassle for a number of citizen and non-citizen travelers as well as assist the DHS in more efficiently addressing matters of national security by focusing more attention on true security matters by minimizing the distractions caused by bureaucratic and administrative data entry errors.
Under the current law, all non-citizens must file Form AR-11 within 10 days of moving to a new address. In the past, this required the use of a paper based process. Recently, however, the CIS has moved this process into the electronic age by proving a means of completing this form on-line. One key advantage of the on-line system is that it is supposed to update the non-citizen’s address not only for AR-11 purposes but also for any other matter currently pending with the CIS. The on-line form is available.