Dallas-Fort Worth Immigration Lawyer

According to figures released today by USCIS, there were 163,000 applications filed for the 65,000 available H-1B visas. So if most of the applicants are actually qualified, each applicant has less than a 50-50 chance of being chosen in the lottery drawing. Pitiful. The United States has such a great need for qualified workers, but we continue to use an artificial cap to deprive ourselves of this productivity. Here is the USCIS press release:

USCIS Releases Preliminary Number Of FY 2009 H-1B Cap Filings

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today announced a preliminary number of nearly 163,000 H-1B petitions received during the filing period ending on April 7, 2008. More than 31,200 of those petitions were for the advanced degree category.

USCIS expects next week it will conduct the computer-generated random selection process, beginning with the selection of the 20,000 petitions under the advanced degree exemption. Those petitions not selected under the advanced degree category will join the random selection process for the cap-subject 65,000 limit.

USCIS will reject, and return filing fees for all cap-subject petitions not randomly selected, unless found to be a duplicate. USCIS will handle duplicate filings in accordance with the interim final rule published on March 24, 2008 in the Federal Register.

USCIS will provide regular updates as the processing of FY 2009 H-1B cap cases continues.

Posted by Bob Kraft at 05:57 PM | Permalink

The Washington Post published a good editorial yesterday lamenting the nation's H-1B visa crisis, and proposed an interesting solution. Here are excerpts:

April's just around the corner, and that means it's H-1B preparation time once again. H-1Bs, which are visas for skilled foreign workers, are capped at 65,000, with another 20,000 given to foreign alumni of U.S. postgraduate programs. Last year, the cap was reached within hours on the first day that the U.S. Bureau of Citizenship and Immigration Services began accepting applications. Because a bachelor's degree is required for these applications, most foreign graduates from the class of 2007 were among the tens of thousands who were shut out of the process. If nothing changes, America will miss out on another crop of talent this year.

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. These are talents the United States has been struggling to grow at home, given that more than a third of all science and engineering doctorates awarded in the United States go to foreign students (for whom the number of visas is not capped), according to the National Science Foundation.

The H-1B visa cap was set well before the tech boom and so does not reflect current needs. It was raised temporarily in 1999, but that increase was allowed to lapse a few years later. Since last year's debacle, there have been congressional attempts to increase the cap, but these have been held up by the political sensitivities surrounding immigration reform, and in particular reforms aimed at illegal and unskilled workers. Because lawmakers lack the political will to keep the world's talent in America, companies are following it overseas, setting up shop in Canada, India, Eastern Europe and other areas where the skills they need are plentiful. As a result, investment and jobs are being shipped abroad.

One solution that may be less politically inflammatory would be to recapture H-1B visas that Congress has already approved but that went unused during the post-Sept. 11 economic downturn. About 300,000 surplus visas could be doled out over the next several years to provide a short-term fix to the current shortage and could perhaps include an additional fee -- which employers would pay -- to create more revenue. A long-term solution is still necessary. Allowing the cap to stay so low effectively exiles not only the world's best and brightest but also the U.S. companies that employ them.

Posted by Bob Kraft at 08:41 AM | Permalink

The Wall Street Journal published an interesting editorial a few days ago about the need for increasing the number of H-1B visas allowable each year. Here are excerpts:

Bill Gates appeared before Congress again last week to make a simple point to simpler pols: The ridiculously low annual cap on H-1B visas for foreign professionals is undermining the ability of U.S. companies to compete in a global marketplace.



"Congress's failure to pass high-skill immigration reform has exacerbated an already grave situation," said the Microsoft chairman. "The current base cap of 65,000 H-1B visas is arbitrarily set and bears no relation to the U.S. economy's demand for skilled workers."



The Labor Department projects that by 2014 there will be more than two million job openings in science, technology, engineering and math fields. But the number of Americans graduating with degrees in those disciplines is falling. Meanwhile, visa quotas make it increasingly difficult for U.S. companies to hire foreign-born graduates of our own universities. Last year, as in prior years, the supply of H-1B visas was exhausted on the first day petitions could be filed.



Mr. Gates said his software company exemplifies this phenomenon. "Microsoft has found that for every H-1B hire we make, we add on average four additional employees to support them in various capacities," he told lawmakers. "If we increase the number of H-1B visas that are available to U.S. companies, employment of U.S. nationals would likely grow as well."



The preponderance of evidence continues to show that businesses are having difficulty filling skilled positions in the U.S. By blocking their access to foreign talent, Congress isn't protecting U.S. jobs but is providing incentives to outsource. If lawmakers can't bring themselves to eliminate the H-1B visa cap, they might at least raise it to a level that doesn't handicap U.S. companies.

Posted by Bob Kraft at 11:56 AM | Permalink

H-1B visas are work visas that allow foreign nationals to temporarily work in the United States for a U.S. employer. A U.S. employer may petition a foreign national under the H-1B classification that specifically applies to individuals in a "specialty occupation." A specialty occupation has three requirements. First, an individual must have a bachelor's degree or higher degree or its equivalent for the particular position. Second, the degree is common in the industry among similar organizations. Third, the employer normally requires a degree or equivalent; or the nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with attainment of the degree.

Individuals with H-1B visas are allowed to work in the United States for up to six years, but visas are granted in three year increments. In some cases, the H-1B visas may be extended for more than six years. If the individual is in the United States, a change of status to an H-1B is filed in the United States. If the individual is outside the United States, upon approval of the petition, the individual must apply for an H-1B visa at the U.S. consulate. There are only 65,000 H-1B visas issued per year. The fiscal year for 2008 reached its cap on the very first day cases were accepted for filing (April 1, 2007).

The beginning of the fiscal year for 2009 is October 1, 2008. Employers may begin filing their petitions six months prior to the start date of employment but the individuals can not start their job until October 1.

It is vital for those individuals wishing to work in the United States to begin preparing their H-1B paperwork before the cap is reached. Please call us at 214-999-9999 if you would like more information on beginning the H-1B process.

Posted by Bob Kraft at 05:56 AM | Permalink

The Dallas Morning News had an interesting article yesterday about the tech industry lobbying to raise the cap on H-1B visas. Here are a few excerpts:

High-tech workers here on federal permits are speaking out - many for the first time - over rules that leave them for years in personal and professional limbo.

After Congress failed to reform immigration laws for the second year in a row, hundreds of the largely India- and China-born workers protested this summer in Silicon Valley and Washington, D.C. They were frustrated that the divisive debate over illegal immigration had overwhelmed efforts at comprehensive immigration reform.

Legal immigrants who feel squeezed by limits on the number of green cards issued each year are trying to separate their complaints from the protests by illegal immigrants. And high-tech companies that say they can't fill jobs because of a cap on skilled-worker visas have stepped up their long-standing plea for the cap to be raised.

The green card application system is akin to "indentured servitude," said Kim Berry, president of the Programmers' Guild, a group that opposes current work visa laws. "It takes years for the green card sponsorship to happen, and they can't leave, can't ask for a raise unless they want to lose their place in line."

Applications for work-related green cards - limited to 140,000 each year, about 9,800 per sending country - are backlogged so deep that many immigrants must plod along for years, uncertain about their future in the United States and unable to change jobs while they wait for permanent residence.

And immigration officials resorted to a lottery for H1-B work visas this summer when businesses filed - on just the first day the government was accepting applications - double the number that could be considered the whole year. Three years ago, it took 10 months for businesses to fill the annual quota.

More than 1 million foreign nationals were in line for permanent residency in 2006. More than 500,000 came into the U.S. on H1-Bs, and the rest through family connections.

Microsoft Corp. was the third-largest sponsor of H1-B visas in the last federal fiscal year. But it still didn't get all the foreign workers it wanted into the country. The company's government affairs director said this was one motivation for Microsoft to open a new software development center in Canada.

"We currently do 85 percent of our development work in the U.S., and we'd like to continue doing that," said Jack Krumholtz. "But if we can't hire the developers we need ... we're going to have to look to other options to get the work done."

About 8 percent of Mountain View-based Google Inc.'s employees currently work under H1-B visas. This year, the company posted 70 new foreign hires overseas when they couldn't get visas. They'll try again next year.

Smaller companies, which may need only one foreign worker, argue they suffer most under the visa cap because they don't have the flexibility of the giants in the field.

Posted by Bob Kraft at 12:40 PM | Permalink

An editorial this week in the Los Angeles Times details one of the reasons Microsoft has elected to build its new research center in Canada rather than in the United States. Excerpts from the editorial:

Microsoft [is] hiring several hundred software wizards to help develop new products. Instead of landing at the Redmond, Wash., mother ship, however, the new workers will toil in Vancouver, British Columbia. Here's why, according to the company's news release (emphasis added): "The Vancouver area is a global gateway with a diverse population, is close to Microsoft's corporate offices in Redmond and allows the company to recruit and retain highly skilled people affected by immigration issues in the U.S."

Consider it just the latest in a series of monuments to the United States' botched immigration policy, as well as a reminder of the Senate's recent failure to pass a comprehensive fix despite bipartisan support. High-tech companies are so frustrated by the limits on visas for skilled labor that they're not just opening offices in India and China to recruit local talent. They're also putting facilities in places like Vancouver for prized recruits from around the world -- many of them trained at U.S. universities -- who cannot work here.

The demand for H-1B visas for high-skilled immigrants has become so much greater than the supply that almost twice as many applications arrived in a single day as there were slots available for the year -- 65,000, plus 20,000 for those with advanced degrees from U.S. schools. Other countries, by contrast, are starting to make it easier for skilled workers to immigrate. That's because they're focusing on the benefits those employees can bring to their economies, not the competition they present to native labor.

Many of these immigrants become the innovators and entrepreneurs who create companies, employ more people and create wealth. Just look at the U.S. experience -- about 25% of all venture-capital-backed start-ups here were launched or co-founded by foreign nationals, including Yahoo, Google and EBay. The same benefits come from talented U.S. workers too, but not enough of them are pursuing science, math and engineering careers to fill the voracious demand at Microsoft and other high-tech powerhouses. A comprehensive fix to U.S. immigration policy is overdue, but failing that, Congress should at least adopt a more sensible approach to H-1B visas.

Posted by Bob Kraft at 09:05 PM | Permalink

U.S. Citizenship and Immigration Services has previously announced that the H-1B visa cap was reached within the first day of filing. In fact, so many visa petitions had been filed that a lottery system was set in place to randomly select the petitions that would be considered for an H-1B visa. The lottery took place on April 12, 2007.

Many individuals and employers are still waiting for any indication from Immigration Services about whether their H-1B petition was randomly selected for processing. USCIS admitted today that they were experiencing delays in issuing receipt notices for cases accepted for consideration for an H-1B visa.

For those who have been anxiously awaiting any news regarding the status of your case, there is still a chance that your H-1B visa petition has been selected and you simply have not received notification of this.

In fact, the backlog at immigration service centers is so great that other individuals or employers who have filed non-H-1B visa petitions are also experiencing delays in obtaining receipt notices for their cases.

Click for more information regarding the ongoing issuance of H-1B receipt notices.

For more information about immigration news, immigration laws, immigration policies, proposed immigration laws, border enforcement, green cards, citizenship, employment visas, family visas, naturalization, and other immigration subjects, please visit Immigration Law Answers and Immigration Law Answers Blog.

Posted by Bob Kraft at 07:50 AM | Permalink

USCIS has just announced that there are still visas available for those interested in obtaining an H-1B visa as long as they have at least a Master's degree or higher from a U.S. university.

USCIS announced last week that it had received enough H-1B petitions to meet the regular H-1B cap for fiscal year 2008. Each year, however, an additional 20,000 visas are made available to those persons having at least a Master's degree. It is this cap which has not yet been reached.

Our office has been receiving many questions regarding when the Master's quota for H-1B visas will be reached. There really is no possible way to answer this question. USCIS stated in its announcement that it had received 12, 989 cases on behalf of aliens holding a master's degree or higher from a U.S. university. It is extremely difficult to provide an estimate of when the remaining spots will be taken.

If you are interested in obtaining an H-1B visa, and you have at least a Master's degree or higher from a U.S. university, you must begin the visa petition process immediately. The remaining visas may be taken by other foreign nationals any day. We strongly recommend that people who wish to obtain an H-1B visa file the petition at the earliest opportunity to avoid a significant delay in employment authorization.

Please do not hesitate to contact us as soon as possible to begin your H-1B case today!

Posted by Bob Kraft at 03:30 PM | Permalink

Immigration Services announced this afternoon that the H-1B cap has been reached for this year. USCIS began accepting H-1B visa petitions on April 2, 2007, and has stated that they have already received over 150,000 petitions.

Each year, the U.S. government makes 65,000 H-1B visas available to qualified individuals on a first-come basis. The cap has been reached every year for the last several years, although the cap has never been reached on the first day of filing.

USCIS must now perform data entry on all of the visa petitions received on April 2. Once this is completed, the petitions will be subjected to a computer-generated random selection process to determine which petitions will be counted towards the cap. Petitions which are rejected will be returned.

The lottery itself, and the results of the lottery, will not be disclosed to the public for some time because of the high number of filings. The announcement from USCIS does not come as a complete surprise. Immigration attorneys have been predicting for some time that the H-1B cap would be reached on the first day of filing.

H-1B visas are a relatively swift path to work in the U.S. for foreigners with bachelor's degrees and with U.S. companies to sponsor them. Immigrants, along with the U.S. technology industry lobby, have been advocating for an increase in the H-1B quota to reform the visa program. A current bill under review proposed raising the H-1B visa cap from 65,000 to 115,000.

If you would like more information regarding the H-1B visa cap, please read the announcement issued by USCIS.

Posted by Bob Kraft at 09:04 PM | Permalink

There is great concern among immigration lawyers that U.S. Citizenship and Immigration Services (USCIS) may have reached the cap on H-1B visas even before the end of the first day of filing, which was April 2, 2007. Reports are surfacing that USCIS received a huge number of envelopes and packages that day, far more than the 65,000 number of H-1B visas available.

This is all unconfirmed at this time, but if true, could be devastating news to those who did all their paperwork properly, filed on the first possible date, and now may have their application denied.

A previous announcement from USCIS explains that if this situation should occur, all the applications received that date would be sorted in a random manner, by computer, and that will be the order in which the applications are accepted.

What a terrible situation -- to have the future of your immigration status come down to the random "whim" of a USCIS computer.

Here is the text of the USCIS announcement, with the applicable portion bolded:

U.S. Citizenship and Immigration Services (USCIS) will, on April 2, 2007, begin accepting H-1B petitions subject to the fiscal year 2008 (FY08) H-1B cap. Because March 31 and April 1 are non-business days, USCIS will not take possession of mail delivered during the weekend until Monday, April 2, which is the first business day of the FY08 H-1B filing period. USCIS will not reject cases delivered during the weekend. Instead those petitions will be treated as if they arrived on April 2. The deciding factor for USCIS is not when the petition is postmarked, but when USCIS takes possession of and stamps the petitions as received.

USCIS will monitor the number of petitions received and will notify the public of the date USCIS has received the necessary number of petitions to meet the H-1B cap, known as the final receipt date.

The date USCIS publishes information that the cap has been reached does not control the final receipt date. USCIS Announces Direct Filing Instructions for Forms I-129 and I-539 Under the Bi-Specialization Initiative posted on the USCIS website. The filing charts are also available on the USCIS website. For filing updates and additional information or call USCIS customer service at (800) 375-5283.

To ensure a fair and impartial system, USCIS will, if needed, randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. This selection is computer-generated. USCIS will reject petitions not selected and petitions received after the final receipt date that are subject to the cap.

If the final receipt date is the same as the first date that petitions may be filed, USCIS will randomly apply all of the numbers among the petitions filed on the final receipt date and the following day. This means that, should the cap be reached on April 2, the first day filings can be received, USCIS will perform a random selection of petitions filed on April 2 and April 3 in accordance with the regulations at 8 C.F.R. 214.2(h)(8)(ii).

For questions on the proper filing location please refer to the March 5 update:

H-1B petitioners should insure they follow all regulatory requirements as they prepare petitions to avoid delays in processing and possible requests for evidence.

8 CFR 214.2(h)(2)(B) requires that petitioners provide a detailed itinerary of the dates and places where work will be performed if those services will be provided in more than one location. For example, a labor contractor or consultant who hires H-1B workers to work at client sites must provide, in advance, an itinerary with dates and places where the worker will perform that work.

In addition, 8 CFR 214.1(c)(4) requires that an applicant for extension of status have maintained his or her nonimmigrant status. In situations where an H-1B worker is changing to an employer other than the one for which the initial H-1B petition was approved, USCIS will require that the worker changing employers demonstrate that he or she actually did perform meaningful work for the original petitioning employer under circumstances not reflective of fraudulent intent in the original petition. In situations where the H-1B worker is processing abroad, USCIS will work closely with the Department of State to ensure that this same level of integrity is applied to consular processed H-1Bs.

Please note: Recent materials posted by USCIS indicated that an original copy of a certified labor condition application is required with Form I-129 and should be signed in blue ink. This statement is in error.

A copy of the LCA may be submitted with the I-129 as is current practice. USCIS did not intend to change the current practices regarding filing of the LCA with the petition. For filing updates and additional information or call USCIS customer service at (800) 375-5283.

Posted by Bob Kraft at 01:07 PM | Permalink

Each year 65,000 H-1B visas are made available so that foreign nationals can work in the United States on a temporary basis. The H-1B category is designed to attract skilled professionals in specialty occupations to work in the U.S. on a temporary basis. A person must possess at least a bachelor's degree or its equivalent (through a combination of education and work experience) to obtain an H-1B visa.

The H-1B is suitable for occupations such as professors, researchers, engineers, computer specialists and software programmers - just to name a few. The H-1B visa is valid for a period of up to six years.

The H-1B visa begins on October 1, 2007. This is the first day a person will be allowed to work on an H-1B visa. However, a company may begin the process on behalf of an individual much earlier than this. In fact, Immigration Services begins accepting H-1B visa petitions on April 1, 2007, which is just around the corner.

The H-1B visa cap is expected to be reached on the very first day that Immigration Services begins to accept the visa petition - April 1st!

If you are an employer wishing to hire a foreign national to begin working for your company, you must begin the visa petition process immediately. If you are an individual wanting to work in the U.S. on an H-1B visa next year, you need to discuss this option with your future employer as soon as possible.

If you are a foreign student graduating in May - then you need to begin thinking of the H-1B visa now so that you can apply for this and make arrangements to maintain immigration status until the October 1 start date.

Should you need any assistance in applying for H-1B status or any questions related to this matter, please do not hesitate to contact us. Kraft & Associates is available to help you with all your H-1B related concerns.

Posted by Bob Kraft at 03:38 PM | Permalink