H1B Visa Lawyer Blog

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U.S. Citizenship and Immigration Services (USCIS) have announced that they reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2017 within the first week of the filing period. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.

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USCIS stated that they must first finish the initial intake before conducting the random selection process. The date of the selection process has not been set due to the high number of petitions received! USCIS will reject and return filing fees for all cap-subject petitions that are not selected.

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USCIS will conduct the advanced degree exemption random selection process first. Any advanced degree petitions not selected will then become part of the random selection process for the 65,000 limit.

For more information, please read the USCIS news release, “USCIS Reaches FY 2017 H-1B Cap”.

USCIS encourage H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2017 Cap Season Web page.

Source of Information:

USCIS.gov, 4/7/16, News Release:
USCIS Reaches FY 2017 H-1B Cap

Related Link:

H-1B Fiscal Year (FY) 2017 Cap Season

H-1B Specialty Occupations

The Board of Alien Labor Certification Appeals (BALCA) recently overturned the decision of a Certifying Officer (CO) to deny labor certification for the position of “Indian Vegetarian Cook.”

After receiving and reviewing the Employer’s Application for Permanent Labor Certification, the CO issued an Audit. He directed the Employer to present a signed notarized statement attesting to the sponsorship of the Alien. In addition, the CO requested answers to several questions concerning the position and the Foreign Worker. The Employer responded to the Audit request in a timely manner.

Once the CO received the audit materials, he denied certification of the application. The Employer did not provide the notarized statement that was requested in the Audit Notification Letter. The Employer sent a reconsideration request to the CO. The Employer stated that “by signing and submitting the ETA Form 9089, it had attested it had a job opportunity available.” The CO re-affirmed his decision and stated that the Employer's failure to send back a notarized letter with the Audit was a valid reason for denying certification. The CO forwarded the case to BALCA for review.

After BALCA’s examination of the case, the denial was overturned. The Board sided with the Employer. By filling out and signing Section N of the ETA Form, the Employer under “penalty of perjury” attested to the sponsorship of the foreign worker. Even though the notarized statement was a reasonable request, the CO did not offer any explanation as to why the omission of it would materially affect the review of the Labor Application. The Board believed that denial of labor certification was not appropriate in the case. The BALCA panel remanded the case back to the CO for certification.

The Form I-9, Employment Eligibility Verification as published is marked to expire on March 31, 2016. Employers should continue to using Form I-9, Employment Eligibility Verification until further notice, no replacement has been published. USCIS will provide updates about the new version of Form I-9 as it becomes available.

Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All U.S. employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States. This includes citizens and noncitizens.

Source of Information:
USCIS.gov, 4/5/16, News Alert:
Current Form I-9, Employment Eligibility Verification, Remains Effective After March 31, 2016

USCIS.gov, 4/5/16, Web Page:
I-9 Central

Immigration Policy Center Releases Updated State-by-State Fact Sheets (2015)

The Immigration Policy Center (IPC) has released all fifty states, the District of Columbia and the United States (Overall), for a total of fifty-two updated fact sheets with accompanying info graphics and other details. These fact sheets highlight the demographic and economic impact of Immigrants, Asians and Latinos in each state. The Immigration Policy Center (IPC) is the research and policy division of the American Immigration Council (AIC).

As Washington D.C. continues the discussion of Comprehensive Immigration Reform, we thought that it would be a good time to provide some statistics on the Immigrant population in the United States as provided by this IPC research. Once a week we will be posting a blog with information on three states at a time. This week we will highlight; Georgia, Hawaii & Idaho.

The IPC has compiled research which shows that Immigrants, Latinos and Asians are an essential part of each of these states’ economy, labor force and tax base. Immigrants and their children are a growing economic and political force as consumers, taxpayers and entrepreneurs. With the nation working towards economic recovery, immigrants and their children will continue to play a key role in shaping the economic and political future of each of these states.

To view the state-by-state fact sheets click on the links below:

• Georgia
• Hawaii
• Idaho

Source of Information:

The Immigration Policy Center (IPC), Interactive Map (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians State by State

The Immigration Policy Center (IPC), List (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians in all 50 States

The USCIS statistics on DACA Initial cases for the first quarter of FY2016, from 10/1/15 to 12/31/15 show a total of 16,336 DACA requests accepted for processing, (N/A) biometric services appointments scheduled, 13,497 requests approved, and 3,276 requests have been denied.

The USCIS statistics on DACA Renewal cases for the first quarter of FY2016, from 10/1/15 to 12/31/15 show a total of 29,240 DACA requests accepted for processing, (N/A) biometric services appointments scheduled, 42,317 requests approved, and 930 requests have been denied.

This DACA Report includes data for FY2012, FY2013, FY2014, FY2015 and FY2016. The USCIS statistics on DACA cases from 8/12/12 to 12/31/15 show a cumulative total of 1,313,332 DACA requests accepted for processing, 1,357,246 biometric services appointments scheduled, 1,198,605 requests approved, and 57,906 requests have been denied.

The cumulative data also shows the number of accepted and approved requests from the top countries of origin and the top states of residence. Mexico was the top county of origin with 1,016,169 accepted to date and 932,837 approved. California was the top state of residence with 374,348 accepted to date and 347,878 approved.

Please view the (.PDF) USCIS Report, “Deferred Action for Childhood Arrivals Process (Through Fiscal Year 2016, 1st Qtr)” for more details.

For further information regarding Deferred Action for Childhood Arrivals, please visit www.uscis.gov/childhoodarrivals.

Source of Information:
USCIS.gov, DACA data:
Deferred Action for Childhood Arrivals Process (Through Fiscal Year 2016, 1st Qtr)
Data as of December 31, 2015
Published March 21, 2016

Related Link:
USCIS.gov, 1/4/16, Web Page:
Consideration of Deferred Action for Childhood Arrivals (DACA)

USCIS.gov, 6/15/15, Web Page:
Renew Your DACA

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

Question #1 – H1B Nonimmigrant Work Visa
What qualifies an organization as H-1B Exempt?

Answer #1
- H1B petitions filed by institutions of higher education, as defined in Section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a), are exempt from the H1B cap.
- H1B petitions filed by non-profit entities that are related or affiliated to an institution of higher education are exempt from the H1B cap, this category is narrowly construed by the USCIS.
- H1B petitions filed by nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)(C), are exempt from the H1B cap.

Question #2 – Employment Authorization Document (EAD)
Can my wife apply for a Social Security number if she just received her EAD?

Answer #2
Yes.

Question #3 – Adjustment of Status (AOS)
If I just applied for my Green Card, can I travel back home to visit my family while the I-485 is pending?

Answer #3
Did you apply for Advance Parole (Form I-131) along with your I-485 application? If so, has the advance parole application been approved? If not, do you have a valid nonimmigrant work visa? If not, then you will need to submit an application for Advance Parole (Form I-131) with the USCIS and wait for it to be approved. If you have exigent circumstances which require expedite services, then you should set up an INFOPASS appointment with the local USCIS field office and bring sufficient documentation of the need for expedited processing.

Question #4 – Dependents
What is a Dependent Visa and who is eligible to apply for one?

Answer #4
A dependent visa is a visa offered to the spouse and/or children of the primary visa holder. For instance, an H4 dependent visa is offered to spouses/children of H1B nonimmigrant visa holders; an L2 dependent visa is offered to spouses/children of L1 nonimmigrant visa holders, etc.) An H4 dependent is not allowed to work in the U.S. unless the primary visa holder has initiated the GC process, whereas, an L2 dependent is allowed to work. A dependent visa generally has the same validity period of the primary visa holder. Contact our office to further discuss.

Question #5 – H1B Nonimmigrant Work Visa
If I plan to continue working for my employer in the US, at what point should we apply for an H1 extension?

Answer #5
You should apply for an H1B extension prior to expiration of the visa. You are allowed to submit an H1B extension petition six (6) months prior to the expiration of the current visa.

Question #6 – Immigrant Investor Visa (EB5)
Who is eligible for the Immigrant Investor Visa?

Answer #6
In order to be eligible for the EB-5 visa program, a person must invest one (1) million dollars in a business in the United States, or invest at least five hundred thousand(500) dollars in a "Target Employment Area (TEA)". All EB-5 investors must invest in a new commercial enterprise. For more information on the EB5 Immigrant Investor Visa, please visit: USCIS web page, “EB-5 Immigrant Investor Program”.

Question #7 – F1 Student Status/OPT
Can a foreign student obtain employment while studying at a US university?

Answer #7
Generally, all employment is contingent on remaining within the terms and restrictions of your F-1 visa. There are several categories of employment during the term of your stay as an F-1 student in the United States. To further discuss your specific situation, please contact our office to schedule a consultation.

Question #8 – H1B Nonimmigrant Work Visa
Does the time on my H-1B visa start the day that is approved or when I first enter the U.S. using it?

Answer #8
The six (6) year limit begins when you first enter the U.S.

Question #9 – Deferred Action for Childhood Arrivals (DACA)
I received a work permit through my DACA status. How can I tell if it was affected by the recent recall?

Answer #9
A letter would have been sent to the address as listed on the DACA application.

Question #10 – Premium Processing
Can Premium Processing apply to visas other than the employment based?

Answer #10
No.

MVP Law Group would like to thank everyone who contributed a question or comment.

Our next “Immigration Q & A Forum” is scheduled for Friday, April 15, 2016!

Please remember to submit your questions/comments on our H1B Visa Lawyer blog!

Immigration Policy Center Releases Updated State-by-State Fact Sheets (2015)

The Immigration Policy Center (IPC) has released all fifty states, the District of Columbia and the United States (Overall), for a total of fifty-two updated fact sheets with accompanying info graphics and other details. These fact sheets highlight the demographic and economic impact of Immigrants, Asians and Latinos in each state. The Immigration Policy Center (IPC) is the research and policy division of the American Immigration Council (AIC).

As Washington D.C. continues the discussion of Comprehensive Immigration Reform, we thought that it would be a good time to provide some statistics on the Immigrant population in the United States as provided by this IPC research. Once a week we will be posting a blog with information on three states at a time. This week we will highlight; Connecticut, Delaware & Florida.

The IPC has compiled research which shows that Immigrants, Latinos and Asians are an essential part of each of these states’ economy, labor force and tax base. Immigrants and their children are a growing economic and political force as consumers, taxpayers and entrepreneurs. With the nation working towards economic recovery, immigrants and their children will continue to play a key role in shaping the economic and political future of each of these states.

To view the state-by-state fact sheets click on the links below:

• Connecticut
• Delaware
• Florida

Source of Information:

The Immigration Policy Center (IPC), Interactive Map (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians State by State

The Immigration Policy Center (IPC), List (fact sheets):
The Economic and Political Impact of Immigrants, Latinos and Asians in all 50 States

USCIS has released their first quarter, Fiscal Year 2016 (FY2016) performance data for all form types as a statistical table. They have divided the forms by category: Family, Employment, Humanitarian, Citizenship and Naturalization, and Other as the rows. The columns are divided by case status: Received, Approved, Denied, and Pending. These updated FY2016 statistics (first quarter) cover October 2015 through December 2015. Here is the link to the Q1 table, “All Form Types Performance Data (Fiscal Year 2016, 1st Qtr)”.

Source of Information:
- USCIS.gov, 12/4/15, Table (PDF):
All Form Types Performance Data (Fiscal Year 2016, 1st Qtr)

- USCIS.gov, 3/21/16, Web Page:
Data Set: All USCIS Application and Petition Form Types

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs. There is a cap limit of 33,000 for the first half of the fiscal year and 33,000 for the second half for a total of 66,000 per year. If the cap is not reached during the first half of the fiscal year, the extra numbers are then made available for the second half.

The H-2B cap limit for first half of FY 2016 (October 1 - March 31) is 33,000. As of the last count (3/15/16) this first half cap count has been reached. Please read USCIS update below!

The H-2B cap limit for second half of FY 2016 (April 1 - September 30) is 33,000. As of the last count (3/24/16); 4,065 beneficiaries have been approved and 5,594 are pending for a total of 9,659.

UPDATE: The congressionally mandated H-2B cap for the first half of fiscal year (FY) 2016 has been reached. March 15, 2016 was the final receipt date for new cap-subject H-2B worker petitions requesting an employment start date before April 1, 2016. The final receipt date is when USCIS received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the first half of FY 2016. This means that no cap numbers from the first half of FY 2016 will carry over to the second half of FY 2016, which begins on April 1, 2016.

Source of Information:
USCIS.gov, 3/24/16, Web Page:
Cap Count for H-2B Nonimmigrants

USCIS.gov, 3/21/16, News Alert:
USCIS Reaches the H-2B Cap for the First Half of Fiscal Year 2016

Related Link:
USCIS.gov, 2/5/16, Web Page:
H-2B Temporary Non-Agricultural Workers

We wanted to find a new way to engage our reader base. Every other Friday, we will post the ten (10) best/most frequently asked questions received during the week from our h1bvisalawyerblog, Facebook, and Twitter readers. We will answer those questions and provide the Q&A; on our H-1B Visa Lawyer Blog.

If you have a burning question, are seeking assistance with a difficult immigration related case, wish to discuss your views on Comprehensive Immigration Reform, DREAMers, Deferred Action for Childhood Arrivals, priority dates, the monthly visa bulletin, adjustment applications, etc., please contact us by submitting your question/comment/viewpoint in our comment box provided on our H-1B Visa Lawyer Blog.

Our next “Q & A Forum” will take place this Friday, April 1, 2016. Act now and submit your questions!

THANK YOU!

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. Therefore, your communication with us through this forum will not be considered as privileged or confidential.

The Board of Alien Labor Certification Appeals (BALCA) recently affirmed the decision of a Certifying Officer (CO) to deny labor certification for the position of “Cook Assistant, Japanese Cuisine.”

After audit, the CO denied the labor certification stating the prevailing wage on the ETA form 9089 did not match the one listed on the prevailing wage determination (PWD). The Labor application listed “$10.04” per hour and the prevailing wage determination listed “$10.14” per hour. The Employer requested reconsideration of the denial stating the prevailing wage discrepancy was “a minor typographical error”, “a clerical mistake of minor importance,” and that “no potential applicant was exposed to the clerical error.” They cited its Notice of Filing included the accurate wage. The Employer also argued in order to correct and re-file the labor application they would have to re-start the time-consuming recruitment process all over again.

After reviewing the reconsideration, the CO affirmed its denial of certification. He believed that under the PERM regulations, “employers must present an application that is complete and accurate to ensure the integrity of the PERM process.” The CO also pointed out that “$10.04” was typed twice on the application. The CO based his decision on the 20 C.F.R. 656.10(c)(1), which requires employers to certify in applications for permanent employment certification that the “offered wage equals or exceeds the prevailing wage.” The CO forwarded the case to BALCA for review.

Upon review, the BALCA panel affirmed the denial. The panel was required to follow PERM regulation 20 CFR 656.11(b). This regulation states “requests for modifications to an application will not be accepted for applications submitted after July 16, 2007.” Although they believed the errors were typographical, the Board was not going to second guess the PERM regulation.

On Monday, March 21, 2016, USCIS announced that it has received a sufficient number of H-2B petitions to reach the congressionally mandated cap (33,000) for the first half of FY 2016. March 15, 2016 is now the “final receipt date” for cap-subject H-2B worker requesting employment start dates before April 1, 2016. The “final receipt date” is the date on which USCIS determined that it has received enough cap-subject petitions to reach the limit of 33,000 H-2B workers for the first half of FY2016.

USCIS will reject new H-2B petitions that were received after March 15, 2016 and that request an employment start date before April 1, 2016, but there are some exceptions!
The exceptions are listed below:
• For FY 2016 only, workers identified as “returning workers” who were previously counted against the annual H-2B cap during FYs 2013, 2014, or 2015;
• Current H-2B workers in the U.S. petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
• Fish roe processors, fish roe technicians and/or supervisors of fish roe processing; and
• Workers performing labor or services from November 28, 2009, until December 31, 2019, in the Commonwealth of Northern Mariana Islands and/or Guam.

For more detailed information about this subject please review the USCIS News Alert, “USCIS Reaches the H-2B Cap for the First Half of Fiscal Year 2016”.

Source of Information:
USCIS.gov, 3/21/16, News Alert:
USCIS Reaches the H-2B Cap for the First Half of Fiscal Year 2016

USCIS.gov, 3/21/16, Web Page:
Cap Count for H-2B Nonimmigrants

Related Link:
USCIS.gov, 2/5/16, News Alert:
H-2B Returning Workers Exempted from the H-2B Cap for Fiscal Year 2016