More H-1B Pressure in D.C.

The pressure on Congress to fix the H-1B fiasco continues to mount, as indicated in this editorial from the Washington Post.

H-1B visas are reserved for the world's best and brightest, and barring their entry is economic self-sabotage. The cap keeps out doctors, engineers and other specialists -- people who save lives and often create jobs for others in America. One need only look at the national origins of founders of companies such as Google and Sun Microsystems to realize that foreign talent has helped keep the U.S. economy on the cutting edge.

Congress is clearly getting pressured from all sides. Let's hope it works.

Analysis of New H-1B Cap Regulation

The new H-1B Cap regulation is fairly straightforward, as summarized in our earlier post. That said, after further analysis of the new H-1B Cap regulation, here are some additional thoughts:

Multiple Filings

USCIS indicated they found approximately 500 instances of multiple filings last year. USCIS will now reject all duplicative petitions from employers who file more than one application for the same individual, even for different positions. The employer's filing fees will not be returned. If the duplicative filings are not discovered by USCIS until after the random selection process, or even after approval, USCIS can reject/revoke all duplicative petitions later.

The multiple filing prohibition does not automatically prevent two related employers (for example, two subsidiaries of the same parent company) from filing separate H-1B petitions for the same employee. However, USCIS will likely issue a Request for Evidence (RFE) in this situation, and the burden is on the employer to show that there was a legitimate business need for doing so.

The new H-1B Cap regulations does not, however, prevent two unrelated employers from filing separate H-1B Cap petitions for the same individual.

H-1B Cap Random Selection Period

Last year, all cases received during the first two business days of the H-1B Cap filing period were eligible for the random selection process. USCIS has now increased this period to the first five business days. So assuming USCIS receives enough H-1B petitions to meet the cap within the first five days (which they most likely will), all H-1B petitions received during the first five business days will all be entered into the random selection process. Accordingly, an H-1B petition received on April 7 (the fifth business day) will be treated exactly the same as an H-1B petition received on April 1.


Master's Cap Random Selection Process

If USCIS receives more than 20,000 Master's Cap exemption cases within the first five business days, it will conduct a random selection selection process among all Master's Cap cases to determine which 20,000 will qualify for the exemption. Those Master's Cap cases not selected will then be entered into the general H-1B Cap random selection process, and thus have a chance to receive one of the general H-1B Cap numbers.

USCIS Releases Interim Rule on H-1Bs

USCIS has finally released the anticipated regulations dealing with multiple H-1B Cap filings and other H-1B Cap procedural issues.

Among the highlights:

- USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker, and will not refund the filing fees submitted with multiple or duplicative petitions.

- USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits, and filing fees will not be returned.

- In years when USCIS implements the random selection process for petitions, USCIS will include petitions in the random selection process that are filed during the first five business days available for filing H-1B petitions for a given fiscal year (used to be just the first two such days)

- If more than 20,000 Master's Cap petitions are received within the first five days, USCIS will conduct a random lottery among the Master's Cap petitions and select those that will be accepted under the Master's Cap. Those Master's Cap petitions not selected will entered into the general H-1B Cap random lottery, which would be performed subsequently.

Click here to view the USCIS announcement

Click here to view the USCIS Fact Sheet: Changes to the FY2009 H-1B Program

Click here to view USCIS Questions and Answers: USCIS Announces Interim Rule on H-1B Visas

Click here to view the full text of the interim final rule.

Ellis Porter will provide further analysis of the new interim H-1B rule after we have a chance to review it in more detail.

H-1B Cap Logistics Updates: Deliveries and Receipt Notices

Delivery of H-1B petitions on April 1

USCIS has confirmed it has already had discussions with the U.S. Postal Service and major courier firms (FedEx, UPS, DHL) and advised them to expect an extremely large volume of deliveries on April 1. USPS and the courier firms will be on special alert from April 1-7.

H-1B Cap Receipt Notices

USCIS is stating that this year, receipt notices will be issued only for those cases that receive an H-1B cap number. Cases not selected will be rejected without a receipt notice. Last year, many cases initially received receipt notices, only to be rejected later, which lead to a great deal of confusion about the significance of receiving a receipt notice. Based on these statements from USCIS, if a receipt notice is issued for an H-1B Cap case this year, that should be solid evidence that the case has been accepted under the H-1B Cap.

H-1B Cap Multiple Filing Regulation Cleared for Publication

We have been informed by sources within the American Immigration Lawyers Association (AILA) that the Office of Management and Budget (OMB) has cleared for publication an interim regulation titled "Petitions Filed on Behalf of H-1B Temporary Workers Subject to the Annual Numerical Limitation." It is AILA's understanding that this rule relates to the filing of duplicate petitions in the upcoming H-1B Cap "lottery."

Generally speaking, once a regulation is cleared by OMB, it goes back to USCIS for final signature, and then is forwarded to the Federal Register for publication. Typically, this process can take a few days, a few weeks, or sometimes longer. However, due to the looming April 1 filing deadline, it is expected this regulation will be published in the very near future.

New Legislation Introduced to Raise H-1B Cap

On the heels of Bill Gates' testimony before Congress, two new pieces of legislation have been introduced in the U.S. House of Representatives that seek to raise the H-1B Cap:

The Innovation Employment Act

Introduced by Rep. Gabrielle Giffords (D-Arizona), the Innovation Employment Act would increase the H-1B cap to 130,000 a year, and create an unlimited cap exemption for H-1B petitions filed by foreign graduate students attending U.S. colleges and studying science, technology and related fields. The bill would also increase penalties for H-1B fraud, prohibit companies from hiring H-1B workers for third-party placements, and prohibit companies with over 50 employees from hiring more H-1Bs if more than half of their staff are H-1B workers.

The SUSTAIN Act

Introduced by House Judiciary Committee ranking member Lamar Smith (R-Texas), the Strengthening United States Technology And Innovation Now (or SUSTAIN) Act would raise the H-1B cap to 195,000 in 2008 and 2009.

While both pieces of legislation are encouraging, their chances of passage are unclear at the moment. Also, it does not appear any action on H-1B Cap relief would be taken before the April 1 filing deadline. Congress just began a two-week break, and is not scheduled to return to session until March 31.

Update on Multiple H-1B Cap Filings

Although we are still awaiting the anticipated H-1B Cap multiple filing regulations, we have received confirmation from the USCIS Vermont Service Center that they do have the ability to identify multiple H-1B filings "and take appropriate action." What that action might be should be included in the new regulation.

Just to clarify, the H-1B multiple filing regulations will be aimed at employers that file more than one H-1B petition for the same employee as a means to try to increase their H-1B Cap lottery chances. It is unlikely the new regulation will prohibit multiple, different employers from filing H-1B petitions for the same individual, which is currently allowed.

More on Bill Gates' Testimony Before Congress

Click here to view the full transcript of Bill Gates' testimony before the House Committee on Science and Technology.

Here's an excerpt from his remarks on revamping immigration rules for highly skilled workers:

"I want to emphasize that the shortage of scientists and engineers is so acute that we must do both: reform our education system and reform our immigration policies. This is not an either-or proposition. If we do not do both, U.S. companies simply will not have the talent they need to innovate and compete."

Bill Gates to Congress: "Country Stands at a Crossroads"

In his testimony before Congress this morning, Microsoft Chairman Bill Gates urged Congress again that we must revamp our nation's immigration policies to remain globally competitive.

"The center of progress will shift to other nations that are more committed to the pursuit of technical excellence," Gates warned. "If we make the right choices, the United States can remain the global innovation leader that it is today."

Here are some links to news articles covering Gates' testimony:

From ABC News

From Wall Street Journal

From InfoWorld

From InformationWeek

Bill Gates Speaks to Congress Today at 10:00am

At 10:00am Wednesday, Microsoft Chairman Bill Gates will provide testimony before the House Science and Technology Committee. Gates will likely focus much of his time discussing the need for more H-1B visas, just as he did last year when speaking before this Committee. You can view the House Science and Technology Committee hearing summary here.

Gates' testimony before Congress comes on the heels of Senator Chuck Grassley's (R-Iowa) March 10, 2008 letter to Department of Homeland Security Secretary Michael Chertoff demanding to know why the administration has not followed up on its past assurances to study and report on potential administrative reforms to visa programs for highly skilled workers.

With H-1B pressure coming from all different angles, things are certainly going to be very interesting in Washington, D.C. as we get closer to April 1.

One Situation Where Premium Processing Can Help

As we discussed in a previous post, filing an H-1B Cap petition as premium processing does not increase one's chances of having their petition selected in the random lottery. However, we did come across a situation today where premium processing could be beneficial for individuals with summer travel plans.

Here's the scenario: Let's say an individual is in the U.S. in F-1 or H-4 status and they plan to file an H-1B Cap petition as an in-country change of status. If their H-1B Cap petition is selected and ultimately approved, it will not be effective until October 1, 2008.

Now, under a longstanding concept in immigration law, if an individual travels outside the U.S. while a change of status petition is pending, their change of status request will be denied. For H-1B Cap change of status petitions, which are filed on April 1, adjudicated under normal processing sometime in the summer, and not effective until October 1, the question came up as to whether the individual could safely travel between April 1 and October 1. Last year, USCIS issued a memorandum that addressed this issue and stated that travel after the H-1B petition is approved, but before October 1 was permissible and would not result in a denial of a change of status request.

So, what does premium processing have to do with this? Well, let's say you plan to file an H-1B Cap petition on April 1, but you have plans to travel outside the country on May 15. In this situation, if the case is filed under normal processing, an approval would not likely be received by May 15, and travel outside the U.S. before obtaining the approval would result in denial of the change of status request, meaning the individual would need to go to their home country and obtain a new H-1B visa and reenter the U.S. after October 1 before their new H-1B status would become effecitve. But, if the case is filed as premium processing, it would likely be approved before May 15, and thus travel after that date would be permissible and not jeopardize the change of status request.

USCIS Spokesman Discusses Possible Regulation to Combat H-1B Cap Manipulation

As we mentioned in a previous post, a new H-1B Cap regulation may be on the horizon that would penalize companies trying to seek an unfair advantage in the H-1B Cap filing process. As further indication of this, a USCIS spokesman confirmed in this Computerworld article that the government is focused on addressing H-1B Cap filing abuses:

"We are looking at that issue and we are looking at possible remedies to make sure that no one manipulates the system, or no one is able to game the system."

While the USCIS spokesman would not provide any specifics on the possible new regulation, we're sure details will be forthcoming soon as April 1 draws closer.

Will H-1B Cap Demand be Higher or Lower This April 1?

Common sense would suggest that a year's worth of pent up H-1B Cap demand will translate into USCIS receiving more H-1B Cap petitions this April 1 than they did last year. As we prepare H-1B Cap petitions for our clients, we are certainly working under the assumption that the cap will be exhausted on April 1.

However, a number of conversations with employers and individuals recently suggest the possibility that the H-1B Cap filing volumes may be down this year. Some have suggested that the sluggish economy could cause the number of H-1B Cap petitions to dip. Others suggest that many employers are hesitant to file as many H-1B Cap petitions as they might normally simply because the prospect of investing time and money into filing what essentially amounts to an H-1B Cap lottery ticket just doesn't make good business sense.

We're curious to know what you think.

Please vote in our H-1B Cap Poll, which is located at the top of the content bar to the right.

Bill Gates Set to Appear Before Congress to Discuss H-1B Cap Issues Again

According to this article from Computerworld magazine, Microsoft's Bill Gates will appear before the House Subcommittee on Science and Technology on March 12. 2008. The hearing has been scheduled to discuss "the future of innovation and U.S. competitiveness."

Mr. Gates will likely appeal again to Congress to raise the H-1B Cap. Last March, he made what turned out to be prophetic statements concerning the H-1B Cap:

In his written testimony, Gates predicted — accurately — that for the first time in the history of the H-1B program, the supply of visas would run out before students graduating from college received their degrees. "This means that U.S. employers will not be able to get H-1B visas for an entire crop of U.S. graduates," he wrote. "We are essentially asking top talent to leave the U.S."

As discussed in an earlier post, Microsoft is one of many U.S. employers that has taken aggressive countermeasures to attract global talent in light of the H-1B Cap situation - including moving operations to locations outside the U.S. where immigration laws are more welcoming.

Is Premium Processing Necessary?

One of the most common rumors we hear related to the H-1B Cap is that filing a case via the Premium Processing program will increase the chances that your case will be accepted. Like many immigration rumors, this one is not true.

Assuming the H-1B Cap will be exhausted on the first day of filing (as it was last year), USCIS will enter all cases received on April 1 into the random selection process. Cases filed via Premium Processing will receive no preferential treatment.

If your H-1B petition is selected, the benefits of having filed via Premium Processing are typically still negligible. Although your petition will be adjudicated in 15 days, the effective date of the approved H-1B petition can still be no earlier than October 1, 2008. So, while there may be some psychological benefit to having the early approval, the real decision is whether this benefit alone is worth the additional $1000 Premium Processing filing fee. Keep in mind, even those petitions filed via normal processing will likely still be approved in 3-4 months, which typically provides more than enough advance time to make visa arrangements, if necessary.