MARCH 4th 2009 IMMIGRATION NEWSLETTER

H-1B Cap Filings for Fiscal Year 2010

Despite rumors to the contrary and barring any last minute changes or announcements by USCIS, it appears that USCIS will employ a lottery system similar to the past few years. Hence, on Wednesday, April 1, 2009, the H-1B filing period for employment for fiscal year 2010 (October 1, 2009 – September 30, 2010) will begin.

Congress has set a limit of 65,000 for most H-1B workers for fiscal year 2010. There is an exemption for H-1B beneficiaries carrying a U.S. Master’s degree or higher. Hence, the first 20,000 H-1B beneficiaries with a U.S. Master’s degree or higher to apply will be exempt from the cap. Once USCIS receives 20,000 petitions for H-1B beneficiaries with a U.S. Master’s degree or higher, all other cases requesting this exemption will be counted toward the 65,000. And, once the 65,000 cap is reached, USCIS will announce that the same has been filled and reject further petitions subject to the cap.

As in the past, USCIS will receive petitions until they determine they have received more than the maximum allowed under the H-1B Cap. Barring any change, if the USCIS reaches the H-1B Cap in the first five days of collection, a random selection lottery will be conducted as was done last year. In prior years, the H-1B cap was reached on the first day of receiving petitions. Therefore, the safest procedure is to file all H-1B petitions on April 1, 2009. If the lottery is placed into effect by the USCIS, the 5 business day filing period will end on Tuesday, April 7, 2009. Last year USCIS received nearly 160,000 H-1B petitions. However, it is expected that the number will be far lower this year because of the state of the U.S. economy.

Foreign Nationals who have Earned their U.S. Degree by March 31, 2009 are Eligible to File H-1B Petitions for FY 2010

Qualified foreign nationals who have completed all their requirements for their U.S. Bachelor’s or Master’s degree may submit an H-1B petition even if the degree has not yet been conferred. Applicants must submit evidence from an official at the U.S. School who is qualified to provide this information such as the school Dean, Registrar or Department Head. The degree must have been earned by the time of filing of the H-1B petition – i.e. April 1st.

H-1B Petitions for the Same Foreign National May be Submitted by Different Employers (Petitioners)

A foreign national may have multiple H-1B petitions submitted by different employers. However, the same employer may not file multiple H-1B petitions for the same foreign national. The USCIS will either deny or revoke multiple petitions filed by an employer for the same H-1B worker and they will not refund filing fees for duplicative or multiple H-1B petitions.

No Definitive Announcement by USCIS for F-1 Students Whose F-1 Period Expires Before October 1, 2009 and File a Timely H-1B Petition Requesting a Change Status to H-1B

To date there has been no definitive announcement by USCIS on the H-1B cap gap for F-1 students whose status will expire before October 1, 2009. Last year on April, 8, 2008, the USCIS issued a regulation that extended the authorized stay for all F-1 students who had properly (timely) filed an H-1B petition and change of status request whose F-1 status expired before October 1st .

Military Accessions Vital to the National Interest (MAVNI) allows certain Non-immigrants to Immediately Apply for U.S. Citizenship

The U.S. Secretary of Defense has recently announced the formation of the “MAVNI” recruiting program seeking to recruit health care professionals (doctors and nurses) and persons who speak certain strategic languages such as Arabic, Bengali, Chinese, Hindi, Korean, Kurdish, Persian, Polish, Punjabi, Russian, Swahili, Tamil, Turkish, Urdu, etc. This new pilot program allows certain non-citizens who are legally present in the United States to join the military and apply immediately for U.S. Citizenship without first obtaining lawful permanent residence. Anyone who currently holds valid asylee, refugee, Temporary Protected Status or one of the following non-immigrant statuses: E, F, H, I, J, K, L, M, N, O, P, Q , R, S, T, TC, TD, TN, U OR V may be eligible. The non-citizen must have held one of those legal statuses for at least two (2) years. Persons holding a B (visitor) visa or are in the U.S. under the Visa Waiver Program are not eligible.

Healthcare professionals have a choice to enlist in a three (3) year contractual duty tour or six (6) years in the Selected Reserve. MAVNI language recruits must enlist for a minimum of four (4) year active duty tour. U.S. Citizenship can be revoked if the MAVNI enlistee does not complete their enlistment requirements. Even J-1 visa holders subject to the 2 year foreign residence requirement can avail themselves of this remarkable opportunity and acquire U.S. citizenship.

Currently, the MAVNI Program will end on December 31, 2009 or when 1000 Qualified Non-Citizens have been recruited, whichever comes first.