IWorld in Handn his monthly report on the current trends and future projections of the visa bulletin, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, provided additional insight heading into the month on July.

Family Based Projections:

Oppenheim previously suggested that FB-4 China could potentially advance before October. Through July, however, the cut-off date of January 1, 2003 will remain. Oppenheim still believes the demand for FB-1, FB-2 and FB-3 will decrease, allowing FB-4 China to advance back to a cut-off date to July 2003 sometime before the end of the year.

With the recent escalation of armed conflicts in countries like Iraq and Syria, many seek to escape the war-torn areas in search of safety and freedom. The freedom of religion and political opinion that is greatly cherished here in America, is the cause of violence and turmoil amongst the Muslim nations in the Middle East.   In both Iraq and Syria, the ongoing tension and division between the Sunni and Shiite’s has many seeking refuge.

According to the Council on Foreign Relations, the ancient religious divide is helping fuel a resurgence of conflicts and the struggle between Sunni and Shiite forces have fed a Syrian civil war and spurred violence that is fracturing Iraq. This violence includes kidnapping, torture, rape and executions of civilians.

In a recently released report by Amnesty International, which covers human rights violations, it was revealed that Iraqi people are not only suffering from atrocities committed by ISIS militants but also from the armed government-backed Shiite militants. The report claims that the Iraqi government is responsible for the attacks on the civilians since the Shiite militias that target Sunni Iraqis, do so in response to the ISIS attacks. As a result, the ongoing cycle leaves the Shiite civilians targeted by ISIS, whereas the Sunni Muslim’s in Iraq are trapped between the Shiite Militia, the government and ISIS militants who attack anyone that opposes them (including the Sunnis).

Being selected in the random H-1B visa lottery is the first challenge an H-1B visa contender faces.  For those with good bhaagy (luck in Hindi), once selected, their H-1B visa petitions must be strong on its own merits to receive approval.  Getting your H-1B visa petition approved depends on “successful preparation” which is a partnership between the H-1B visa candidate, the employer and the attorneys preparing the petition.  It is only when the partnership works to its fullest potential will the H-1B visa petition be approved.  One of the most important key elements to successful preparation is assuring that the attorneys have all relevant data for the employer and employee timely.  Our law firm has pioneered an online case management portal a decade ago wherein candidates can share their information and data in a secure manner.  The Law Firm of Shihab & Associates, Co., LPA uses a robust system that provides immediate status updates and transparency through the process. We have prepared the attached presentation to demonstrate the efficient preparation process leading up to the April 1st, 2016 filing date.

The Law Firm of Shihab & Associates strive to keep you informed about key immigration issues.

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It can be a very disappointing experience for everyone involved, to receive a notice from USCIS that the H-1B visa quota has been met for the year and you have not been selected to receive an H-1B visa in the lottery process. The attorneys at The Law Firm of Shihab and Associates, LPA have over 50 years of combined experience in a variety of complex legal matters, and we can help you to find an immigration strategy to best meet your particular needs. Please contact us today.

What Other Options are Available?

One option that may be available to you is if you are the holder of a Master’s degree or higher from a U.S. institution. This will qualify you for one of the 20,000 visas reserved each year for advanced degree holders. These tend to run out much more slowly, and if you do not receive one in the lottery, you still get a “second chance” for one of regular 65,000 visas for Bachelor’s degree holders. You can even petition under this category, if you anticipate receiving your U.S. advanced degree in between the time you apply for your petition and the beginning date of your H-1B employment.

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As the H-1B cap season for FY 2017 approaches, employers and potential employees alike must be prepared. For the uninitiated, the H-1B cap refers to the statutory limit placed on visa’s available for temporary workers in specialty occupations. Currently, this limit is set at 65,000, with an additional 20,000 reserved for those with advanced U.S. degrees (also known as the Master’s cap). As more and more employers seek to benefit from highly skilled workers available internationally, particularly in the IT industry, the H-1B visa becomes more highly sought after. Additionally, the ability to extend the H-1B status past the standard six years with the approval of an employment based immigrant petition adds exceptional benefit to both petitioner and beneficiary.

USCIS begins accepting cap-subject H-1B petitions on April 1. In the past three years, the Service has received enough petitions to fill the numerical cap within 5 days. Thankfully, due to this massive influx of potential visa beneficiaries, a lottery system has been implemented. So long as USCIS receives the cap-subject petition within the allotted filing period, it will be placed in a random lottery for selection. Those petitions eligible for adjudication under the 20,000 Master’s cap will be selected first. Those that qualify for the Master’s cap but were not selected are then placed with all other petitions for possible selection in the 65,000 general cap. With over 233,000 petitions received by USCIS for the H-1B cap last year, there is only about a 1 in 4 chance of any petition being accepted for filing. All petitions that are not selected in this process are rejected and all documents and filing fees returned. While those not selected may have alternative visas available to them, many will have to wait and resubmit a new petition the following year in the hopes of being selected in the lottery.

Why has there been such a push for these visas? In addition to the need to fill positions in areas which there are not enough qualified U.S. workers, the recent scrutiny and subsequent denial rates in the L-1 visa have forced many employers to take the H-1B route. Additionally, with the ability to extend nonimmigrant status continuously while an immigrant visa is unavailable, many employees that seek to begin the permanent residence process (also known as a Green Card) will attempt to switch to H-1B status. With the recent change to allow H-4 visa holders (dependents of H-1B’s) to gain work authorization, the number of H-1B cap petitions for those already in an employment based status may cause an additional increase in petitions this cap season.

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On December 31, 2015, the Department of Homeland Security (DHS) issued a notice of proposed rule making that will affect highly-skilled workers, and other types of non-immigrants.  Most of these changes, as described by the American Immigration Lawyers Association (AILA), are “helpful, but timid.”  Others changes, however, give reason for concern.  This blog entry will give a brief rundown of the new proposed rule changes.

Many of the new “changes” are actually just a regulatory codification of existing agency policy and guidance that has developed in the past 15 years—since the enactment of the American Competitiveness in the 21st Century Act, and the American Competitiveness and Workforce Improvement Act.  These changes include:  allowing H-1B visa extensions beyond the general 6-year limitation, allowing permanent visa portability to a job in a same or similar occupation, H-1B portability, and H-1B cap exemption rules.

For H-1B cap exemption rules, the new regulation would expand upon the definition of “related or affiliated nonprofit entities” for the purpose of the H-1B cap exemption.  This would allow the inclusion of entities that have a formal, written affiliation with a qualifying cap exempt institution to also take advantage of the H-1B cap exemption.  This is a welcome addition, but see our earlier blog article below for why these proposed changes could also be problematic for employees who are “employed at” qualifying institutions, but do not spend all of their time working there.

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There is good news this week if you are seeking or are already in H-1B1, E-3, CW-1, or EB-1 visa status. The Department of Homeland Security (DHS) has issued a final rule that amends its programs for these types of visas in an attempt to remove barriers and obstacles that have placed these types of workers at a disadvantage to similar workers in other visa categories.

This rule will become effective February 16, 2016, and will make the following welcome changes :

  • H-1B1 and E-3 visa holders will now be authorized for employment with a specific employer incident to their status. This means that you can work for your sponsoring employer without needing a separate employment authorization.

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Beginning April 1, 2016, employers will be able to submit petitions with the U.S. Citizenship and Immigration Services (USCIS) for H-1B visas on behalf of highly-skilled foreign workers in specialty occupations. These cap-subject visas will become available later in the year on October 1.

This year it will be very important for you to prepare your petitions as early as possible, because it is anticipated that there will be very strong demand for H-1B visas in2016. In the past three years, the H-1B visa cap was reached immediately within five business days of the initial April 1 start date. When this occurs, a visa lottery takes place. There is expected to be continued strong demand, as well as pent up demand from petitioners who could not obtain an H-1B visa last year.

What is the H-1B Visa Cap?

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Once again, on December 31, 2015, the Department of Homeland Security (DHS) has issued a notice of proposed rulemaking that seeks to read into the INA statute words and phrases that are not included in it, and that Congress never intended.  These changes would make it more difficult for H-1B visa holders to seek exemptions from the H-1B visa cap by working at an institution of higher education, a related or affiliated nonprofit entity, or at a nonprofit or government research organization.  Exemptions have long been available for H-1B employees who are “employed at” these kinds of institutions, but the new proposed rule will seek to more narrowly define who will be considered “employed at” these institutions.

There are two main changes that are proposed in the new regulations with regard to H-1B cap exemptions.  The first major change is a “clarification” of the agency’s interpretation of the meaning of a worker being “employed at” a qualifying cap exempt institution.  (See 80 FR 81900, 12/31/15.)  This change now requires that a worker must perform a majority, (more than half,) of his or her job duties at the cap exempt institution, and that these job duties must predominantly further the institution’s essential mission and purpose.  The second major change is a more welcome addition.  This change adds to the definition of an “affiliated or related nonprofit entity,” recognizing a new type of cap exempt relationship—one based on a formal, written affiliation agreement between a nonprofit entity and an institution of higher education.  Let’s discuss these changes in more detail, comparing the new rule changes to the current rule for H-1B cap exempt organizations.

The Meaning of “Employed At” a Qualifying Institution

In just a few short months, the U.S. Citizenship and Immigration Service (USCIS) will begin accepting new  H-1B quota visa applications for FY 2017, starting on April 1, 2016. It is important this year to begin the application process well in advance in order to file as early as possible, because demand for H-1B visas is expected to be very high. In 2015, the FY 2016 visa quota cap was met in only five short days. With a visa cap of only 65,000 for bachelor’s degree-holders and an extra 20,000 for those with Master’s degrees, there will likely be many more petitioners than visas, resulting in a lottery process.

The first step in the H-1B visa process is for a job to be offered by a U.S. employer and accepted by an alien worker. There must be a valid employer-employee relationship, for example if the employer has the ability to hire, supervise, pay, and fire the employee. In addition, the job offered must be in a “specialty occupation,” that is, one requiring at least a bachelor’s degree that is directly related to the position.

Once the alien worker accepts the job offer, the employer will then agree to file an H-1B petition on his or her behalf. The H-1B visa application must be filed at least six months prior to the start date of the H-1B worker’s new employment. This means that for FY 2017, the earliest work start date for a new H-1B employee will be October 1, 2016.

Once a foreign worker has been hired, the employer should retain an immigration attorney in order to file a Labor Condition Application (LCA) and the H-1B petition. The LCA must be filed and approved with the Department of Labor (DOL) before the actual H-1B petition can be filed. The attorney will collect all the necessary information for the LCA. This will include: a job description, dates of employment, employer information, and the beneficiary’s qualifications, education, and experience.h1b-visa

Then, the immigration attorney will research the prevailing wage determination for the specific area of employment. This involves checking with the Department of Labor and the National Prevailing Wage Center, or investigating other possible wage sources. The attorney will then find the appropriate prevailing wage for the specific H-1B position, and will file a Labor Condition Application (LCA) with the Department of Labor on behalf of the employer. Currently, the Department of Labor is taking around 6 days to process LCAs, so it is important to begin this process at least two months in advance of the April 1, 2016 date for accepting new H-1B petitions.

The LCA will require the employer to pay the H-1B employee the same prevailing wage and benefits as domestic employees. It also ensures that no similar domestic workers have been displaced or suffered reduced wages by hiring the foreign worker. Continue reading