Open filing date for FY2012 H-1B’s fast approaching
The earliest date when a cap-subject FY2012 H-1B petition can be filed with USCIS is Friday, April 1, 2011. In prior years, H-1B petitions received by USCIS on April 1 -- the very first day cap-subject H-1Bs could be filed -- exceeded the available number of cap-subject H-1Bs, resulting in a lottery administered by USCIS. Due to the economic downturn and labor market conditions, however, this has not happened in the past two years.
While the consensus of cap prognosticators seems to be that we will not see an April 1 H-1B lottery this year, it seems likely that, with the economy improving, we will reach the cap earlier this year than last. A significant “wildcard” is the possible substantial increase in demand for H-1Bs this year from larger banks and financial institutions, which in past years have accounted for a significant number of H-1Bs, and which, during the past two fiscal years, were largely sidelined from filing new H-1Bs as a result of the “H-1B Dependent Employer” attestations imposed as a condition of receipt of funds under the Troubled Asset Relief Program (TARP) or under Section 13 of the Federal Reserve Act.
In order to maximize our chances to obtain one of the limited number of FY2012 H-1Bs, we strongly recommend that any employer interested in obtaining a FY2012 H-1B contact us as soon as possible with the objective of finalizing the petition for filing and receipt by USCIS no later than April 1.
USCIS proposes cap subject H-1B preregistration
USICS published a proposed rule to establish an advance registration process for U.S. employers intending to file H-1B petitions under the fiscal year statutory cap. Under the proposed rule, employers petitioning for fiscal year H-1B workers would register electronically with USCIS, and before the H-1B fiscal year filing period begins, USCIS would select registrations predicted to meet the annual H-1B limit of cap subject visas. Employers would move forward with filing H-1B petitions only if USCIS selects their H-1B registrations. The intent of the registration system is to increase efficiency in the fiscal year H-1B process, saving employers the effort and expense of filing H-1B petitions, as well as Labor Condition Applications, for workers who would be unable to obtain visas under the statutory cap. The earliest this preregistration process would be in effect would be the FY 2013 H-1B filing season. The comment period for the proposed rule is from March 3, 2011 to May 2, 2011.
New combination EAD/AP document
USICS announced it will be issuing employment and travel authorization on a single card for certain family or employment based permanent residence applicants. This new card will look similar to the current EAD with an annotation “Serves as I-512 Advance Parole” on the front of the card. In order to qualify for this combination document, adjustment applicants must file their applications for advance parole (AP) and Employment Authorization Document (EAD) concurrently. The new card improves the current AP paper document in durability, security, and convenience. Availability of immigrant visas for the applicant will dictate whether the card is valid for one or two years. Employers may accept the new card as a List A document when completing the Employment Eligibility Verification, Form I-9.
New TWIC-annotated B-1 visa
The U.S. Department of Homeland Security (DHS) and Department of State (DOS) recently announced a new version of the B-1 visa that will allow approximately 4,000 to 6,000 foreign maritime workers to apply for a Transportation Worker Identification Credential (TWIC). Foreign maritime workers can now disclose in the B-1 visa application process the need for a TWIC to perform duties that require access to secure areas of maritime facilities. The B-1 visa issued by DOS will then include a TWIC annotation. Upon receipt of a TWIC annotated B-1 visa, foreign maritime workers will then be eligible to make a separate TWIC application with the Transportation Security Administration. This new procedure expands the class of TWIC eligible applicants to include B-1 foreign maritime workers, in addition to the other workers who require unescorted access to secure areas of ports, vessels, outer continental shelf facilities, credentialed merchant mariners, and certain commercial truckers who were previously TWIC eligible.
USCIS releases “Kazarian” memo on EB-1 petitions
USCIS has released a Policy Memorandum providing internal guidance for the adjudication of immigrant visa petitions based upon extraordinary ability in the sciences, arts, education, business, or athletics and for outstanding professors or researchers. The Policy Memorandum adopts the two-part adjudicative approach to evaluating evidence set forth by the Ninth Circuit in Kazarian v. USCIS, 596 F.3d 1115 (9 Cir. 2010). The “Kazarian” Memorandum directs USCIS officers to first objectively evaluate each type of evidence submitted to determine if it meets the parameters for that type of evidence, then consider all of the evidence in totality in making a final merits determination. This approach is controversial and may have the effect of further “tightening” the extraordinary ability category, resulting in a higher rate of requests for additional evidence and denials. USCIS defends the approach on the grounds that it will lead to decisions that more clearly explain how evidence was considered, the basis for the overall determination of eligibility, and greater consistency in decisions.
USCIS reaches FY2011 H-1B cap
U.S. Citizenship and Immigration Services announced that it reached the statutory cap for fiscal year 2011 H-1B petitions. USCIS reported that January 26, 2011 was the final receipt date for new H-1B petitions requesting an employment start date in fiscal year 2011.
USCIS issues new I-9 employer handbook
On January 11, 2011, USCIS announced the release of a revised version of The Handbook for Employers, Form M-274, which provides guidance to employers on the Form I-9 employee verification process. The new Handbook is available for download from the USCIS website.