Articles Posted in H1B Visas

I just saw this notice from USCIS and wanted to share with our readers:

U.S. Citizenship and Immigration Services (USCIS) announced today that it will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2014 cap on Monday, April 1, 2013. Cases will be considered accepted on the date that USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked.

The cap (the numerical limitation on H-1B petitions) for FY 2014 is 65,000. In addition, the first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degree or higher are exempt from the fiscal year cap of 65,000.

We have received an amazing response to our last H1B Self Employment Article and we wanted to follow up with a few more tips as the H1B filing date is just around the corner.

So the bottom line, USCIS regulations require that H-1B classification be accorded a foreign national who will perform services in a specialty occupation. USCIS will not approve an H-1B petition for “speculative employment.” So, to avoid RFEs (Request for Evidence) on these issues for new and smaller company typically formed by a sole investor, it is important to prepare H-1Bs with sufficient financial and other information to show the legitimacy of the company and the need for the H-1B worker. I often include,a copy of the office bank accounts, wire transfers of money deposited in corporate bank accounts, business plans, contracts with U.S. clients, etc.

H1B as the Owner

Most lawyers that are versed in the H1B visa process, are getting busier and busier these days. As we are nearing the April 1, 2013 filing deadline for the H1B visa. Many speculations out there as to when will the Cap be reached this year. The economy is doing OK, but employers are still careful before hiring. Yet, many Immigration experts feel the Cap will be met very early this year, but when is the big question.

With LCA’s now taking more than 7 days to process, as well as unreasonable denials, planning early is the key to a successful H1B case this year. But in this post, I want to go back to the basics, the Cap and the legislative background.

Background

Did you know that forty percent of Fortune 500 companies in the United States were started by immigrants or the children of immigrants. From 1995 to 2005, half of Silicon Valley startups had an immigrant founder and in 2005 alone those businesses did $52 billion in sales creating more than 400,000 jobs. Iconic American companies that built whole new industries like US Steel, Dupont, Google, eBay, Honeywell, and Intel were started by immigrant founders. Chobani Yogurt, founded in 2005 by the immigrant entrepreneur Hamdi Ulukaya in upstate New York, has created 1,500 American jobs.

Just as we find common ground that unites families and protects communities, so too should we ensure that the world’s most talented innovators and entrepreneurs who are educated in our great universities are able to stay and contribute, rather than be forced to set up competitor businesses abroad. Many end up leaving because our visa options for self employed founders are limited.

Foreign Start Up founders often struggle with visa options to stay and launch a company in the US. The options are limited, if your country is part of a US Investment treaty, one can apply for the E2 visa and start a small company by investing some money. If you have a million dollars, you could also invest in your business, and could apply for the EB5 Immigrant Visa. But what if you don’t have money, and your country is not a member of the E2 treaty? Well until recently you were out of luck.

New data has been released on cap-subject H-1b petitions. USCIS only allows 65,000 cap-subject petitions each year to be filed with USCIS. From the 65,000 petitions, there are currently 29,000 pending petitions that need a decision.There are 21,968 approved petitions, with 7,078 denied petitions. Taking the approval/denial ratio into consideration, it appears that 3 out of 4 petitions are being approved by USCIS. Notwithstanding any decisions overturned through the appeals process, that 75% rate is still low compared to years back where the approval rate for H-1b cap-subject petitions was closer to 90% approval rate.

Whether these numbers still reflect a concern for petitions based on fraud or whether it is based on any focus on bigger companies versus smaller companies filing the petitions, the fact is that USCIS has increased denials and even more cases were likely delayed approval because of requests for evidence on those cases. Hopefully the rest of the cases that are still pending will be met with more approvals.

The numbers through the third quarter of 2012 for H-1B petitions is in. Through a FOIA request made by the American Immigration Lawyers Association, the number of H-1B petitions that have been submitted, approved, denied, and withdrawn have been released. So far this year, 128,893 petitions have been submitted to USCIS. Of those petitions, 75,706 petitions have been approved, 20,717 have been denied, and 1,820 have been withdrawn.

This means there are still 30,650 petitions that are being decided by USCIS. Looking at the approval and denial rates, it appears that the approval rating is around 80% for H-1B petitions for 2012. While this may seem like a low number for employers to accept, it is a higher approval rate than in prior years. In addition, the denial number is the second lowest for denials since 2008, and taking the amount of petitions filed and still pending into consideration, the ratio for approvals to denials appear better than they were 5 years ago.

It is good to see that petition numbers and approvals have increased when comparing them to 2008-2011, but even despite these numbers, one would think the approval rate should be much higher. With all the political rhetoric going on around finding a way to keep those individuals educated in the U.S. in the STEM fields, the H-1B has always been the visa many of those individuals to utilize for working and staying in the U.S. Whether the denials come from a policy within USCIS or not, if we want to keep those educated in the U.S. from leaving, the H-1B visa needs to be utilized more in order to keep them here longer.

A recent study conducted has shown that there is a high demand for skilled H-1B workers in metropolitan areas. An analysis of the geography of H-1B visa requests — particularly in the metropolitan areas with the highest demand between 2001 and 2011 — reveals that demand for H-1B workers has fluctuated with economic and political cycles over the last decade and reflects a wide range of employers’ needs for high-skilled temporary workers. Employer requests have exceeded the number of visas issued every year except from 2001 to 2003 when the annual cap was temporarily raised from 65,000 to 195,000. Employers requesting the most H-1B visas are large companies subject to the cap specializing in information technology, consulting, and electronics manufacturing. Science, technology, engineering, and mathematics (STEM) occupations account for almost two-thirds of requests for H-1B workers; healthcare, finance, business, and life sciences occupations are also in high demand. Over the last decade the federal government has distributed about $1 billion from H-1B visa fees to fund programs to address skills shortages in the U.S. workforce.

One hundred and six metropolitan areas had at least 250 requests for H-1B workers in the 2010–2011 period, accounting for 91 percent of all requests but only 67 percent of the national workforce. Considerable variation exists among these metro areas in the number of workers requested and the ratio of requests to the size of the total metro workforce. On average, there were 3.3 requests for H-1Bs per 1,000 workers in these 106 metro areas, compared to 2.4 for the nation as a whole.

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More changes coming. The U.S. Department of Labor (DOL) recently published a proposed revision of ETA Form 9035 and its instructions. Form 9035 is more commonly known as the Labor Condition Application (LCA), and is required for all H-1B, H-1B1, and E-3 visa petitions. The proposed revisions would, among other things, limit the maximum number of workers who could be covered on a single LCA to no more than 10, and require that the intended worker(s) be identified by name on the LCA form prior to filing.

These are significant changes. The current rules allow a single LCA to cover hundreds of workers, and there is no requirement that there be any worker-identifying information on the LCA. In addition to the proposed revisions to the ETA 9035, the DOL also released a proposed version of Form WH-4, which is used by the DOL’s Wage and Hour unit to collect complaints of possible violations of the H-1B, H-1B1 and E-3 visa programs.

The DOL indicates that the proposed changes in data collection are intended to improve enforcement and investigation of LCA violations. The DOL will accept comments on the proposed form and its changes until September 7, 2012. Expect even more delays in the preparation and filings of LCA, guess it will also affect the timing for getting H1B’s filed by the deadline. We will keep you posted.

A memo was released recently through the National Foundation for American Policy which provided a revealing analysis in which data reveals high denial rates for L-1 and H-1b petitions submitted to U.S. Citizenship and Immigration Services (USCIS). Analysis of new data obtained from USCIS reveals the agency has dramatically increased denials of L-1 and H-1B petitions over the past four years, harming the competitiveness of U.S. employers and encouraging companies to keep more jobs and resources outside the United States.

The high denial rates belie the notion adjudications have become more lenient. Employers report the time lost due to the increase in denials and Requests for Evidence are costing them millions of dollars in project delays and contract penalties, while aiding competitors that operate exclusively outside the United States – beyond the reach of U.S. Citizenship and Immigration Services adjudicators and U.S. consular officers. (The data in this report include only petitions at USCIS, not decisions made at consular posts.) Given the resources involved, employers are selective about who they sponsor. The high rate of denials (and Requests for Evidence) is from a pool of applicants selected by employers because they believe the foreign nationals meet the standard for approval, making the increase in denials difficult to defend. Denying employers the ability to transfer in key personnel or gain entry for a skilled professional or researcher harms innovation and job creation in the United States, encouraging employers to keep more resources outside the country to ensure predictability.

Among the findings contained in this NFAP analysis of official U.S. Citizenship and Immigration Services data:
– Denial rates for L-1B petitions filed with USCIS, which are used to transfer employees with “specialized knowledge” into the United States, rose from 7 percent in FY 2007 to 22 percent in FY 2008, despite no change in the law or relevant regulation. The denial rates stayed high for L-1B petitions at 26 percent in FY 2009, 22 percent in FY 2010 and 27 percent in FY 2011.1 In addition, 63 percent of L-1B petitions in FY 2011 were at least temporarily denied or delayed due to a Request for Evidence.

– Denial rates for H-1B petitions increased from 11 percent in FY 2007 to 29 percent in FY 2009, and remained higher than in the past for H-1Bs at 21 percent in FY 2010 and 17 percent in FY 2011.

– Denial rates for L-1A petitions increased from 8 percent in FY 2007 to 14 percent in FY 2011. L-1A visas are used to transfer executives and managers into the United States.

– The denial rates also increased for O-1A petitions, which are used for “individuals with an extraordinary ability in the sciences, education, business, or athletics.”2 Denials for O-1A petitions rose from 4 percent in FY 2008, to 10 percent just one year later in FY 2009, increased again to 11 percent in FY 2010, and stood at 8 percent in FY 2011.

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At the American Immigration Lawyers Association Conference today, we heard updates about the increased H1B visa RFE’s and rate of denials. As the practice of H1B filings will continue to become more complex, it is important to know how to file and document H1B cases in specific occupations to increase the approval chances.

Attorney Ekaterina Powell from our office has handled numerous H-1B cases and has prepared this article to share her expertise. Now that the H-1B annual cap for fiscal year 2013 has been reached, the individuals who have missed this year’s cap are looking for other options to extend their stay and apply for H-1B next April.

We would like to remind those who wish to use next year’s H-1B Cap to plan in advance and have everything ready long before April 1, 2013. The accelerated speed with which H-1B cap was reached this year may be a sign that the visas will run out even faster next April.