Are H-1B Visas Running Out?

USCIS announced that about 53,800 H-1B visa numbers have been used. 85,000 are available each year. 20,000 are reserved for U.S. advanced degree holders (MS, PhD, etc.) and USCIS says those have been exhausted for this year. About 40,000 numbers were used on April 1 when they first became available.

The guessing game now is how soon the remaining numbers will be used. Some will be reserved for Chile and Singapore per free trade agreements. Those can be allocated up to 6,800. But since typically only a few hundred of those are used per year, the expected extra are made available to applicants worldwide.

A colleague predicts the remaining H-1B visa numbers will be used by the end of 2009. Thus, anyone wanting an H-1B visa should apply now.

Certain people are exempt from obtaining an H-1B visa number. They include people sponsored by colleges or universities, nonprofits related to universities, and certain research institutes. People with an H-1B visa number can change employers without obtaining a new visa number, but a new application must be filed by the new employer.

H-1B workers contribute greatly to the U.S. economy and create employment. The founders of many technology companies started out on H-1B visas. Some created whole new industries and hundreds of thousands of American jobs. The economic footprint of an H-1B worker is also significant. They buy cars, groceries, and books and pay U.S. taxes. I have clients on H-1B visas who are researching cures for cancer, developing new medical devices, creating new electronic technologies, and advancing biotechnology, among other fields.

Martin J. Lawler

EB-5 Investor Green Card Update

There have been a number of developments on EB-5 investor green cards. The EB-5 immigrant investor category allows a person and his or her dependent family members to get a green card (i.e., live permanently in the U.S.) by investing in the U.S. and creating or saving 10 U.S. jobs. The minimum amount of investment is $500,000 if invested in a rural or high unemployment area. Otherwise one must invest at least $1,000,000. Most invest in limited partnerships called Regional Centers and the investment amount including their fee is $525,000 to $550,000. People can create their own business as well.

Congress has passed a three-year extension of the Regional Center statute which now sunsets October 30, 2012. Senator Leahy, Chair of the Senate Judiciary Committee, has introduced a bill for a permanent extension – a link to the bill is found on my web page http://www.aboutvisas.com/ in the EB-5 section. It contains my proposal for a “good faith waiver” in case the 10 jobs are not created through no fault of the investor. This is a safety net which I proposed and is being supported by many others.

USCIS has begun to process cases faster. USCIS announced at the American Immigration Lawyers Association (AILA) first all EB-5 conference that they would decide a sample EB-5 petition for the Regional Center so that the center project aspect of the EB-5 investor case did not have to be decided with each investor’s application. The investors still must prove the investment is made, funds are at risk and the funds come from a legal source. This new process should streamline the deciding of cases.

I spoke at AILA’s EB-5 conference on the process of obtaining removal of conditional resident status, the I-829 application.

I have learned this fiscal year (beginning 10/1/09) that 422 EB-5s have been issued conditional green cards. Most were cases which could not be completed in September, the last month of fiscal year 2009.

The EB-5 classification is one of the fastest ways to immigrate compared to the other slow immigrant EB-2 and EB-3 preference categories.

Contact me for an EB-5 flowchart explaining the EB-5 immigration process.

Martin

H-1B Site Visits

USCIS is conducting unannounced site visits to randomly selected companies sponsoring H-1B visas. USCIS says that some such 40,000 site visits will be conducted. So, the odds of a visit are high. I also anticipate in the future that there will be site visits for L-1 and possibly other work visas. USCIS is using contractors not USCIS officers.

Here are some guidelines:

· USCIS has a legitimate interest in verifying that the company exists and the H-1B worker is appropriately employed. However, USCIS is not allowed to compromise proprietary processes, information and trade secrets by touring the company or taking photographs on the premises. It is essential that accurate information be provided by a knowledgeable management team member about the H-1B employee's terms of employment including the job duties and salary. Inadvertent misinformation provided by, for example, a receptionist, may cause complications for the employer and H-1B worker. It is important to alert reception personnel that a site visit may happen and who will be the only person designated to talk with the inspector.

· Problems might arise by innocent characterizations provided about job duties, the job title, and salary which may seem different from those on the H-1B visa petition. For example, the H-1B petition may contain the generic job title of “software engineer” but the employer's internal title is “technical staff.” Or the H-1B petition may describe the job in lay terms, but the investigator is given a technical job description he/she does not understand. Or perhaps the employee provides his net pay instead of gross. For this reason the management team member and the H-1B employee should be familiar with the H-1B paperwork.

· USCIS guidelines provide that a site visit will be terminated if an employer requests presence of a lawyer. But I have heard conflicting reports as to whether this is happening in practice. You should evaluate your situation to decide how you wish to respond to a site visit. If you are more comfortable with counsel present, get me on the phone and we can discuss it with the inspector together.

· I recommend cooperation with the site inspector so long as safeguards are in place to be sure accurate information is provided.

If you would like to discuss this further, please call me or Hope Frye. Hope is an expert on worksite enforcement.

Premium Processing Resumes for Some Green Card Petitions

USCIS is resuming Premium Processing service for Form I-140 workers involving EB-1 Aliens with Extraordinary Ability, EB-1 Outstanding Professors and Researchers, EB-2 Members of Professions with Advanced Degrees or Exceptional Ability but not seeking a National Interest Waiver, EB-3 Professionals, EB-3 Skilled Workers, and EB-3 Other Workers.

Under the Premium Processing Service, USCIS guarantees it will issue either 1) an approval notice, 2) a notice of intent to deny, 3) a request for evidence, or 4) open an investigation for fraud or misrepresentation within 15 calendar days of receipt. There is a filing fee of $1,000, which does not include legal costs associated with the application.

USCIS promises a refund of the $1,000 fee if the petition is not processed within 15 calendar days from the date it receives the premium processing request. However, this does not mean that USCIS must refund the fee if it fails to complete the case within 15 days. If USCIS reviews the petition and issues a notice of intent to deny, a request for evidence, or opens an investigation during the 15 day period, the fee will not be refunded.

Premium Processing may greatly expedite some cases and save six months to one year of waiting time for a green card. If you are potentially interested, please contact Martin Lawler at mlawler@aboutvisas.com to discuss the specifics of your petition.

Martin

Professionals: A Matter of Degree, 5th Edition

My new law book on business visas has been published. It is 530 pages of text plus an Appendix of materials. The book, Professionals: A Matter of Degree, is in its 5th Edition. It covers green cards and all nonimmigrant visas used by professionals including H-1Bs (for professionals), L-1s (for intracompany transferees), P-1s (for athletes), and the latest on the new religious worker visas, among others.

In updating Professionals, I was struck by how many changes have taken place in the law and procedures during the past five years. I also anticipate this rate of change to continue.

The severe backlog of visa numbers means more will wait longer for visas, and the investor visas are more attractive than ever -- E-2 temporary and the EB-5 green card.

Martin

Department of State Advises of Shortage of Visa Number Availability Especially for those Born in India or China

Charles Oppenheim of the Department of State (DOS) Visa Office advises news about the movement of priority dates in the future. He estimates that all 140,000 employment based immigrant visa numbers will be used this fiscal year (10/1/08 through 9/30/09). Other significant points include:

• The employment-based 4th preference, which includes religious workers and other special immigrants, has experienced a surge in usage of immigrant visa numbers this year. While this preference is current for June 09, continued heavy demand for numbers could require the establishment of a cut-off date later in the fiscal year.
  
• The employment-based 5th preference (immigrant investors) has also experienced a surge in usage of immigrant visa numbers this year.
  
• The surge in employment-based 4th and 5th preference numbers is significant beyond those specific categories. Historically, there have been substantial unused numbers in these categories which have been used to meet demand for visas in the employment-based 1st and 2nd preference categories. This has allowed the China and India cut-off dates to advance further than would be possible if those categories were finished at their annual limits. This means EB1 and EB2 immigrants from China and India could have an even longer wait to obtain green cards.
  
• The EB1 category (extraordinary ability, outstanding researchers and multinational managers) worldwide will remain current the rest of the fiscal year but demand is high.
  
• The EB1 categories for India and China will be current during the month of June 09, but could require a cut-off date in Aug. or Sept. should EB1 demand remain heavy. China and India have benefited from the excess EB1 numbers for all other countries. However, because of the high demand from other countries this year, there are fewer numbers to "fall across" to India and China.
  
• EB2 (MS or BS + 5 yrs exp.) India. The prognosis is grim. For June 09, the cut-off date is 1/1/2000, and the category may become unavailable completely in Aug. or Sept. 09. There are currently approximately 25,000 EB2 India cases which have been reviewed by USCIS and queued up at the DOS only awaiting a visa number. India, as are all other countries, has a limit of 2,800 EB2 numbers available per year plus the "fall across" and "fall down" from EB4, EB5 and EB1 visa numbers, if there are any leftover numbers. Translated, the waiting time for Indian EB2 applicants can be measured in years, even decades, without legislative relief.
  
• EB2 (all other workers) China. The prognosis is equally grim. As of July 09, the cut-off date will be 1/1/2000 and the category may become unavailable completely in Aug. or Sept. 09. There are a significant amount of EB2 China cases which have been reviewed by USCIS and queued up at the DOS only awaiting a visa number to be approved. China, as are all other countries, has a limit of 2,800 EB2 numbers available per year plus the "fall across" and "fall down" from EB4, EB5 and EB1 visa numbers, if there are any leftover numbers. Translated, the waiting time for India born EB2 applicants may be measured in years, without legislative relief.
  
• EB3 worldwide will be unavailable the remainder of this fiscal year. As the DOL cleared up its long backlog of Alien Labor Certification cases, there were tens of thousands of I-485 applications with priority dates in 2004 and earlier years which were processed by USCIS this year. As of 10/1/09, the DOS currently estimates the EB3 worldwide cut-off date will be 3/1/03. There will be extended delays in this category.
  
• EB3 visas for India, China and Mexico applicants will be unavailable this fiscal year. It is estimated, based on current demand for visa numbers that as of 10/1/09, the following cut-off dates could be established: China will be 3/1/03; India will be 11/1/01; and Mexico will be 3/1/03.
  
• There are approximately 25,000 EB2 and 25,000 EB3 applicants currently queued at the DOS awaiting a visa number.
  
• There are 2.7 million family based applicants on the waiting lists for consular processing. This information was listed in the March Visa Bulletin.
  
• There could be approximately 50,000 employment based applicants on the waiting lists for consular processing.
  
• Currently almost 90% of all employment based visa numbers are used by USCIS and 75% of all family-based visa numbers are used by consular posts.

The solution to this long backlog is to advocate that Congress add more visa numbers or exempt spouses and children from needing a visa number. For those who can afford it, the EB-5 (investor) category is looking better all the time. See our web page http://www.aboutvisas.com/ for details on all these visa categories and the EB-5.

Martin

Individual EB-5 investments

Individuals may wish to apply for an EB-5 green card based on a $500,000 or $1 million investment in their own business (as opposed to a regional center). They need to have an accountant who works closely with immigration counsel to ensure the investment is reported properly on the business and individual’s tax returns.

Individual EB-5 petitions require considerable documentation of the enterprise’s activities and job creation.