Reminder: H-1B Work Visa Quota Opens for New Filings on April 1

One of the most popular U.S. work visas, the H-1B, will start accepting filings for new H-1B employment on April 1, in exactly one week.     Pursuant to each yearly H-1B quota, new H-1B filings can be filed on April 1, at the earliest, for a starting date of employment on or after October 1.

The H-1B Quota and Expectations for This Year

When the H-1B visa category was created in 1990, Congress imposed an annual cap on the number of new H-1B visas which can be issued.  Although the cap has varied through the years, it is set to 65,000 per year plus 20,000 for graduates of U.S. masters programs for the new fiscal year (FY2012) starting on October 1, 2011.

As discussed above, the H-1B cap “opens” on April 1, 2011 and will remain open for new H-1B filings until the 65,000 H-1B limit is reached.  While it is impossible to predict exactly when the FY2012 H-1B cap will be reached, it is helpful to provide some context.  For FY2009, filing made on or after April 1, 2008, caused the H-1B cap to be reached in eight (8) days.   For the FY2010, the H-1B cap was open between April 1, 2009 and December 22, 2009 and for last year, FY2011, the H-1B cap was open between April 1, 2010 and January 25, 2011.

Conclusion

As a result, and due to the slow economic recovery, while we expect a robust H-1B filing season this spring, we anticipate that H-1B visa demand would be similar to last year when the H-1B cap was open for eight months.   Throughout the H-1B season, and as early as mid-April, we will be providing updates on the number of H-1B cap filings and will be revising (hopefully by making them more accurate) our estimates of how long the H-1B cap would last.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us.

E-Verify Self Check System Now Available to Residents of Five States and DC

As of yesterday, March 21, 2011, the E-Verify Self Check system has been launched and made available to users who maintain an address and are physically located in Arizona, Idaho, Colorado, Mississippi, Virginia or the District of Columbia.

About E-Verify Self Check

E-Verify Self Check is the first online E-Verify program offered directly to workers and job seekers. This voluntary, free, fast and secure service was developed through a partnership between the Department of Homeland Security (DHS) and the Social Security Administration (SSA).  The goal of the system is to allow individuals in the United States to check their employment eligibility status before formally seeking employment.   The system uses Equifax (a credit rating company) to provide identify verification and, through a combination of DHS/SSA records review, can provide evaluation on its users’ employment eligibility.

One of the drives behind E-Verify Self Check is to allow individuals who plan to seek employment to verify their employment eligibility and so that they have an advance opportunity to correct issues relating to their employment authorization records in DHS or SSA systems.

Although the E-Verify Self Check system was launched yesterday along with active PR, the system is essentially a test limited to only a few states plus the District of Columbia and would probably require congressional approval before it is widely deployed.

USCIS estimates that Self Check users will generate about 850,000 to 1 million queries in the first year, with approximately 8 million queries after/when the program is expanded nationwide.   The current plans for expansion are to include 16 states in fiscal year 2012 and roll out nationwide afterwards, if the USCIS budget permits.

Procedures

The E-Verify Self Check process consists of four steps.

1. First, users would enter identifying information online (such as name, date of birth and address).
2. Second, users would confirm their identity by answering demographic and/or financial questions generated by a third-party identity assurance service (Equifax, as of now).
3. Third, the users would enter work eligibility information such as a Social Security number and, depending on citizenship status, an Alien Registration number.
4. Finally, E-Verify Self Check checks users’ information against relevant SSA and DHS databases and returns information on users’ employment eligibility status.

Concerns

One of the main concerns with E-Verify Self Check is that the results of the program would be shared with employers or would otherwise affect or stay on a person’s credit or background record.  USCIS has assured that E-Verify Self Check query information or results are never shared with users’ employers or prospective employers.  However, using the E-Verify Self Check would result in a “soft hit” on a user’s credit score.  These soft hits are generally not shown to businesses and are not used to calculate credit scores.

Similarly, USCIS prohibits employers from requiring prospective employers submit to E-Verify Self Check as condition of their employment.

Conclusion

Although it is very early to gauge E-Verify Self Check’s success so early, our office has heard concerns that using E-Verify Self Check may impact a user negatively.  Although USCIS strives very hard to allay such concerns, the fact is that the perception that negative information provided by E-Verify Self Check may be used against an employee  still remains.

Workers who have had information consistency problems with DHS or SSA in the past, or have a reason to believe that their records may not be accurate in either of those agencies, would benefit from using the E-Verify Self Check system to ensure that their records are proper and that a subsequent E-Verify check by an employer would likely be a positive one.

AC21 Green Card Process Porting: How Similar Should the Jobs Be?

In connection with the 2007 adjustment of status (I-485) filing “blizzard” and due to the fact that there are many I-485 applicants who are hoping to switch jobs, our office has handled numerous AC21 green card porting cases.   One of the most frequent questions we receive is whether a new proposed job position is “same or similar” for purposes of complying with AC21 and meeting its requirements.

Generally, a new job should be in the same job classification as the job for which the approved immigrant petition was filed.  For example, an adjustment applicant working as Computer Analyst, where the PERM/I-140 were filed for Computer Systems Analysts (SOC code 15-1051.00) classification should be able to switch to a new job which fell under the same classification – 15-1051.00.

In a recent teleconference, the Nebraska Service Center (NSC) provided some unofficial but helpful guidance on their reasoning and practice when adjudicating AC21-related cases.   NSC was asked to provide some guidance as to their criteria in adjudicating the “same or similar” job standard.  In response, NSC confirmed that the “same or similar” has not been a significant issue because NSC has been applying a “common sense” approach – NSC has confirmed that most petitions invoking AC21 portability based on similar occupations are indeed usually similar, i.e. accountant doing another accounting position, IT consultant working in the IT field.    On the other hand, IT worker making “slurpees at the 7-Eleven” would not be considered to qualify under AC21.

While this conference call and the information about the “common sense” approach NSC takes with respect to AC21 review does not state the official USCIS position, it nonetheless provides a helpful insight into the operations and standards at NSC.  Also, it should serve to provide some relief and flexibility to the thousands of I-485 adjustment applicants who are seeking to switch jobs but when the new proposed jobs are not exactly similar to the jobs for which they were initially sponsored.

H-1B Quota Reached – Alternatives to H-1B Visa

Now that the H-1B quota has been reached (as of December 21, 2009), we are receiving an increasing number of inquiries by both cap-subject employers and prospective employees about the alternatives for work authorization between now and October 1, 2010, when the new fiscal year’s H-1B quota would begin (as a reminder, April 1, 2010 is the earliest a cap-subject H-1B application can be filed).  We describe some of the most common H-1B visa alternatives.  Note that the list is not intended to exhaust all possible visa types and scenarios pursuant to which an employee may be legally employed.  Our goal is to list some of the common options for the benefit of our clients and readers.  We are happy to discuss individual cases as part of our FREE initial consultation.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B.   In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency.  Please contact us if you would like our help in evaluating your O-1 and/or P-1 visa case.

L-1 Intracompany Transferree

The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office).  This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad.   Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa.  An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.

E-1/E-2 Treaty Trader or Investor

The E-1/E-2 visas allow nationals of countries with which the U.S. has trade treaties to invest an amount in the U.S. and receive an E-1 (treaty trader) or E-2 (treaty investor) visa.  See a list of treaty countries.

The E-1 treaty trader visa is suitable if the foreign national has a multinational employer who is willing to transfer them, and the company has significant trade between the foreign country and the U.S.  The employee must also have skills which are essential to the operation of the company trade.   Dependents of E-1 visa holder are eligible for work in the U.S.

The E-2 treaty investor allows foreign nationals to invest (preferably) a substantial amount in the U.S. and obtain an E-2 visa to be able to manage and direct their investment.  The amount required for investment generally varies depending on the industry (the so called, proportionality test) with more capital-intensive industries requiring more significant investment for E-2 application.   Dependents of E-2 visa holders are eligible to apply for work authorization.

H-1B Program Changes by Congress Unlikely

While we do not expect Congress to raise the H-1B cap for FY2010, it is nonetheless possible.  There are a number of proposals currently circulating in Congress, some of which aim to increase the H-1B cap.  However,  the chance of such proposals becoming law outside of a comprehensive immigration reform (which is barely starting to gain ground) is small.

Wait and File on April 1, 2010 for the FY2011 Cap

For some of our clients, waiting until April 1, 2010 to file a new cap-subject H-1B petition may be the best option.  The H-1B visa type, although subject to some requirements, is a fairly common visa type for which many qualified employees are eligible.    As of now, the FY2011 H-1B cap is expected to be the same as it was for the FY2010 fiscal year – 65,000 H-1B visas.  However, as the economy starts to improve and employers increase hiring, we do not expect that next year’s H-1B numbers will remain available for as much as 8 months, as they did in 2009.   Accordingly, we urge employees and employers to prepare and file most or all of their H-1B petitions on or about April 1, 2010, to ensure that their petition has the greatest chance to be included in the quota.