December 14th 2009 IMMIGRATION NEWSLETTER

H-1B Cap Will Soon Be Reached. H-1B Cap-Subject Cases Should Be Filed as Soon as Possible

As of December 10, 2009, USCIS has received approximately 62,500 H1-B petitions that count towards the 65,000 cap (quota limit). It is estimated that about 2,500 H-1B openings remain available. In addition, a small percentage of H-1B petitions of the 65,000 cap are specifically allocated to nationals of Singapore and Chile. Hence, the actual number of remaining H-1B's is unclear. In the past several weeks close to 6,000 H-1B cap-subject cases have been filed. Therefore, it is best to file as soon as possible for fiscal year 2010 as there is no certainty as to when the H-1B's will be depleted. Please contact our office as soon as possible to schedule a consultation if you are considering applying for an H1-B Visa at this time or in the future.

REMINDER: USCIS Conducting Surprise Site Visits to H-1B Employers

USCIS is continuing to conduct numerous on-site surprise H-1B inspections over this fiscal year. Immigration officials are taking a more aggressive stance on H-1B visa enforcement. USCIS has engaged outside contractors to conduct thousands of H-1B employer site visits without notice. The investigator may want to meet with the company's Human Resources person, the individual who signed the H-1B petition on behalf of the entity, or anyone on site to confirm the H-1B beneficiary worker's date of hire, title, work location, hours and salary information. Some typical questions the inspector may ask are: (1) Does the employee work at this location? (2) How much does the employee make? (3) Do you have copies of the employee's W-2 or recent pay stubs? (4) What is the employee's job profile? (5) How many other people are employed at your company under H-1B status? and (6) When did the company start doing business? Also, investigators may take photos of the company's building or office to prove that the company actually exists. Hence, it is vital that companies have proper public inspection files and valid I-9 forms for all H-1B employees and be on the lookout for a potential visit.

Our firm is prepared to assist with regard to site visit and compliance issues.

Visa Numbers for January 2010

Immigrant ("green card") visa numbers for the employment based third preference category for professional and skilled workers and third preference "other workers" category are available. However, there are still extensive delays in the Third Preference Category (EB3) and it is impossible to predict how fast the quotas will advance.

Visa numbers are currently available only for applicants whose priority date (filing date for labor certification) is earlier than the cut-off date listed below.

Second Preference (Member of Professions Holding Advanced Degrees or Person of Exceptional Ability) cut-off dates are: China-mainland born: May 1, 2005; India: January, 22, 2005; Mexico: Current (Visa Number Available); Philippines: Current (Visa Number Available); All Other Chargeability Areas: Current (Visa Number Available).

Third Preference (Skilled Workers and Professionals) cut-off dates are: China-mainland born: August 1, 2002; India: June 22, 2001; Mexico: July 1, 2002; Philippines: August 1, 2002; All Other Chargeability Areas: August 1, 2002.

Third Preference (Other Workers) cut-off dates are: China-mainland born: June 1, 2001; India: June 1, 2001; Mexico: June 1, 2001; Philippines: June 1, 2001; All Other Chargeability Areas: June 1, 2001.

Certain applicants in the Third Preference Category may be eligible to apply for Second Preference Category if circumstances have changed since the filing of their original labor certification. The Second Preference Category backlog is less backlogged than the Third Preference and applicants can retain their previous priority dates. Also, premium/rush processing is now available for certain I-140 immigrant petitions. For more details, please call us and set up a consultation to discuss your particular case.

U.S. Department of State Visa Number Projections in The Employment Preferences for the Remainder of Fiscal Year 2010

Based on current indications of demand, the best case scenarios for cut-off dates which will be reached by the end of FY-2010 (September 30, 2010) are as follows:

Employment Second Preference:

China: July through October 2005
India: February through early March 2005

If Section 202(a)(5) were to apply:

China and India: October through December 2005

Employment Third Preference:

Worldwide: April through August 2005
China: June through September 2003
India: January through February 2002
Mexico: January through June 2004
Philippines: April through August 2005