Do not file too early for H-1B!

In other blog posts here, I have explained the significance of October 1 and of April 1 for those of you who seek H-1B status, and who also are subject to the H-1B cap.

In this post, I want to emphasize that while filing early is important (that is, such that the government gets your petition on April 1 or as soon as possible after that date), filing too early, that is, prior to April 1, for an October 1 start date, will doom you.

In particular, if you are using an express courier such as Federal Express or UPS, I strongly suggest that your  employer avoid being "cute" by saving money on a second-day or third-day delivery option. Rather, pay the extra money, mail it the day before April 1 so that it does arrive April 1, and not before.

Why do I make this statement? Suppose  your employer instead mails two days before April 1 and specifies the second day option. Or, suppose your employer mails three days before April 1 and specifies the third day option. Suppose also that the employer is thinking that in both cases, the package will arrive no earlier than April 1.

In both cases, however, the danger exists that the courier might still be able to deliver the petition early, that is, prior to April 1. In this case, because by law you may request a starting H-1B date a maximum of six months in advance, the government will deny your petition. They will do so because any date before April 1 is more than six months before October 1.

When a courier says "second day" or "third day" delivery, that courier most likely does not mean the package can be delivered only on the second or third day respectively, and no earlier. Rather, it refers to the latest delivery time. If a courier has the ability, quite likely that courier will deliver early.

For this reason, your best option to mail the day before, with next day delivery, assuming that next day is in fact the earliest possible delivery time. Trying to save a few dollars is not worth the risk of a denial due to an early filing.

You are welcome to contact me at csun@calvinsun.com

Getting ready for your H-1B filing

Congratulations, your employer has agreed to file, on your behalf, an H-1B petition.  If you are subject to the H-1B cap, and if (as is usually the case) the cap is full during the time you learn this news from your employer, then your employer must wait until the next April 1 (at the earliest) to file. Because of the cap, however, your employer and attorney should look to file actually on April 1 itself or as soon as possible thereafter.

For this reason, to avoid delays in filing, you will want to be sure that you yourself are prepared with the necessary materials that your employer or the attorney will need from you. These materials include the following, and assume you are seeking a change of status from F-1 to H-1B:

Immigration documents

You should have the following immigration documents available:

• passport information page (i.e. the page with your photo, name, date of birth etc.)
• visa stamp for your most recent entry into the US
• latest I-94 document, front and back
• latest I-20 document
• employment authorization card, if applicable

Educational/professional credentials

You should have official copies of relevant undergraduate and graduate transcripts (note that a diploma by itself is insufficient, according to H-1B regulations, because it will not show courses taken or dates attended). An official transcript is one that is issued by an office of the university, and such office is usually the registrar. The transcript usually will have the insignia of the school. In other words, a “do it yourself” printout or screen print of a transcript, such as from Blackboard or Banner software, will not meet government regulations. 

Because requests for transcripts take time, you will want to make your request as soon as possible.

You also may want to include a letter of attendance, signed by the registrar, to validate the transcript, and also repeat information on dates attended and the fact that you graduated.

Make sure you also have an up-to-date resume available.

Please see below regarding photocopies.

Job description, job requirements, title and salary

Although the job description, title and salary should come from your employer, you still should review that information. Often the job description does not really reflect what a person really does. In particular, when you review the description, make sure it encompasses all your duties. Make sure it shows the complexity of your job, because such complexity is an important factor in determining whether you will be approved or not.

Translations

Any document that is in a non-English language will need to be translated into English. More specifically, the translation must be a certified one. That is, the English translation must come with a signed statement by someone, and this statement should identify the document, should say that the person is fluent in English and the other language and that the translation is an accurate one.

The person who certifies the translation should be someone other than yourself. However, you yourself still can translate the document into English if you wish and are able to, before the certifier reviews the translation. That is, the certifier need not be also be the translator.

Photocopies

I have never been asked for original copies of any documents. For this reason, I always provide photocopies of documents. Needless to say, the photocopies should be accurate reproductions of the original, and neither the original document nor the photocopy should be altered. Doing so is a serious offense, and could result in severe consequences.

You are welcome to contact me at csun@calvinsun.com

How to talk with your boss about getting H-1B status

I have spoken with a few people who are in their OPT, and who have told me that they are uncomfortable with bringing up, with their boss, the topic of getting H-1B status.  If you feel this way, here are some thoughts and suggestions.  Ｉhave never had to ask for H-1B status, but believe, based on my experience in consulting about and teaching classes on communication, that my suggestions will be helpful.

First, remember Sun Tzu, and his advice, from "The Art of War," about knowing the enemy and knowing yourself.  In other words, look at the situation from your boss's perspective. In particular, ask yourself how your boss and your company would benefit from petitioning for H-1B status for you.  Even though you yourself would benefit, that idea should NOT be the basis for talking to your boss.  In other words, avoid talking about why you yourself would benefit from H-1B. Simply put, your boss probably doesn't care.

Second, try to get away from thinking that H-1B is a matter of "you versus your boss."  Instead, think of the issue as being one where you and your boss have a common objective, i.e. the need to solve an immigration problem--namely, that unless something happens, you will need to stop working at a certain point in the future, namely, when your OPT ends.

So if we combine these two ideas, we can bring up H-1B in the context of alerting our boss to a potential problem. The boss needs to realize that we might not be there in the near future.  On the other hand, if your continued presence is something the boss wants, then you can discuss how to resolve the issue--namely, via H-1B status.  By getting this status, the boss avoids disruption in work, continues to have someone to work with clients or customers and gets to keep a valuable employee.  You also look like a genius to your boss, in that you have identified a problem, but also have a way to solve it, thereby making your boss's life easier.

This previous paragraph illustrates my third point: do not think, by discussing H-1B, that you are asking for charity or a handout from your boss.  Think of yourself as someone who is bringing value to your company and to your boss.  Therefore, the decision about H-1B, from your boss's view, should simply make good business sense, because the cost of doing it is far outweighed by the value you bring.

If your boss is American, you can try the "bad news / good news" approach, which is a common form of American humor, and one therefore that your boss will recognize.  Your conversation might go like this: "Boss, I have bad news and I have good news.  The bad news is that unless we take action, I will need to leave this job on or before [date], due to immigration requirements.  The good news is that I know the action we need to take to resolve the problem."

I hope these suggestions are helpful to you.

You are welcome to contact me at csun@calvinsun.com

H-1B: early filing date vs. full three years of status--cannot have both

If you are seeking H-1B status, and you are subject to the cap, then you may want to know that

you can have an April 1 H-1B filing date, OR you can have a full three years of H-1B time, BUT YOU CANNOT HAVE BOTH.

Those of you who plan to file a cap-subject H-1B petition as early as possible, i.e. on April 1, should be aware that doing so will deprive you of time at the end of your H-1B period. That is, you will not be able to get your full three years of H-1B time, but rather will have that time reduced by about two weeks.  Conversely, if you want to have the full three years of H-1B time, you will not be able file right on April 1, but would need to wait until perhaps April 10 or 11.

In other words: you can have an April 1 filing date, or you can have a full three years of H-1B time, but you CANNOT HAVE BOTH.

The reason for this situation involves the relationship between the labor condition application (LCA) and the H-1B petition, as well as the processing time for the LCA. As yu may know, the LCA is the document in which your employer certifies that you are being paid at least the prevailing wage for your job and your geographic location.

Like the H-1B petition, an LCA can be filed up to six months in advance. In addition, like the H-1B petition, an LCA can request a period of up to three years.  However, the LCA must be filed and certified, and then included with the H-1B petition. That is, the LCA filing and certification must occur before you can file the H-1B petition.  Furthermore, the LCA typically requires about six to seven business days for the certification.  This processing time prevents you from getting a full three years of H-1B should you file on April 1. Here’s why.

Let’s say that you wanted to file your H-1B petition on April 1, 2013 (and let’s pretend April 1 was a business day, even though it was really a Sunday).  Doing so would allow you an H-1B period of October 1, 2013 to September 30, 2016.  However, the H-1B filing would need to include a certified LCA . Therefore, in order to have the certified LCA by April 1,  you would need to submit the LCA material about seven business days in advance of April 1, for example March 20.

If you submit the LCA on March 20, then specifying an October 1 LCA start date (to match the H-1B start date) would be IMPOSSIBLE, because October 1 is more than six months from March 20.   Rather, the latest that the LCA period could start would be September 20, and the longest it could run would be to September 19, 2016.  The government will not allow you have H-1B time that exceeds the end of your LCA time, so they will shorten your H-1B to end on September 19 rather than September 30.  In other words, you would lose 11 days of time at the end of the H-1B period.

If, on the other hand, you wanted a full three years of H-1B time, starting from October 1, 2013, you would need to submit your LCA no earlier than April 1, 2013.  You then would probably receive the certification around April 10, meaning that the earliest you could file your H-1B petition would be April 10 or later.  In this case, you could get a full three years. However, you would not be able to file right on April 1, but rather on April 10 or later, and therefore would run a greater risk that the cap will fill up in the meantime.

Your employer or attorney may not even offer you this decision, but knowing about these options still is important for you.
(note: this material previously appeared as part of a larger post, but I thought the topic was important enough to stand on its own.)

My version of the song "You Had Me From Hello"

哈哈哈哈没有人可能以为我事实上是Kenny Chesney.  No one will confuse this version with the one by Kenny Chesney.

http://www.calvinsun.com/assets/multimedia/you_had_me_from_hello_calvin.mp3 

中文介绍：http://www.calvinsun.com/assets/multimedia/you_had_me_from_hello_intro.mp3

Your OPT ending date and its effect on your “cap gap” options

Many people who are in their optional practical training (OPT) phase, following graduation, find that they have a gap of a few months between the end of OPT and the beginning of their H-1B job. This situation, known as “cap gap,” arises because of two issues, namely

•           many OPT programs end in winter or spring
•           during the federal October 1 – September 30 fiscal year that the OPT expires, the H-1B cap is already full

Therefore, assuming the person is subject to the cap, and assuming the current fiscal year cap already is full, and assuming the person’s OPT subject is non-STEM related, then   the person cannot work in H-1B during that fiscal year, but instead must wait until the next October 1, assuming his/her petition was or will be approved.

Therefore, the cap gap often presents a challenge as far as maintaining both legal status as well as work authorization under the person’s OPT.  

Depending on a person’s OPT ending date, a person can have one of three situations with regard to maintaining status and work authorization, via cap gap relief, between the end of OPT and an October 1 H-1B start:

1.       The person can maintain both status and OPT work authorization

2.       The person can maintain status, but not OPT work authorization

3.       The person can maintain neither status nor OPT work authorization

Let’s look at each situation in more detail.

1.       Ability to maintain both status and OPT work authorization

This person has the best situation. In American English, one could say this person, alternatively, “is on Easy Street,” or “is in the catbird seat,” or “has it made in the shade.”

The person has this situation because his or her OPT ends on or after April 1, the beginning date for filig H-1B petitions for the following October 1 (see http://yi2min2.blogspot.com/2012/12/the-importance-of-april-1-and-october-1.html for an explanation of this April 1 date). Therefore, this person is eligible for the cap gap extension. In this situation, the employer must file a nonfrivolous petition on or after April 1 and on or before the expiration of OPT, and specify an October 1 H-1B start date. Also, the petition must ultimately be approved. As a result, the person will have F-1 OPT status, as well as work authorization, automatically extended to September 30.  In this way, the person has continuous lawful status and OPT work authorization until the end of the fiscal year, at which point the person’s H-1B status would begin.

2.      

Ability to maintain status, but not work authorization

This person has a second-best situation. His or her OPT ends prior to April 1, but the grace period ends on or after April 1. As a result, this person is eligible for a modified cap gap extension. The employer, as above, must file a nonfrivolous H-1B petition on or after April 1, and on or before the end of the person’s grace period. Assuming that the petition ultimately is approved, the person will have an extension of F-1 status from the end of OPT until the beginning of the next fiscal year, October 1, at which point H-1B status would begin.

However, because the person’s OPT period ended prior to the April 1 earliest filing date, the person cannot receive a corresponding extension of work authorization. This person, therefore, may lawfully remain in the US until the start of H-1B, on October 1. However, the person must stop the employment that was based on OPT.

3.     

  Ability to maintain NEITHER status nor work authorization

This person, unfortunately, has the worst situation of all. Specifically, not only does this person’s OPT end prior to April 1, but so too does the grace period. This person is ineligible for ANY form of cap gap relief. The person cannot receive an extension of OPT work authorization, nor can the person receive an extension of lawful status. Rather, the work authorization ends when the OPT ends, and the F-1 status ends when the grace period ends. This person can leave the US before the end of the grace period, seek consular processing for an H-1B visa, then re-enter later on that visa (keeping in mind that entry can occur up to 10 days prior to start date).  Otherwise, the person will need to find some other lawful status in order to stay in the US.

I hope this information helps you. Should you have questions, you may reach me at csun@calvinsun.com. 

Understanding “cap gap” and the “cap gap extension”

If you are considering H-1B status, two concepts you should know, if not already, are “cap gap” and the “cap gap extension.” Both of these terms relate to the timing of the end of your optional practical training (OPT) and the start of you cap-subject H-1B job, assuming the H-1B cap is full during the current fiscal year.

For the moment, let’s ignore the 60 day grace period that follows the end of your OPT. Also, let’s consider only one-year OPT programs.

Let’s say that you graduated in May 2012, and then began an OPT that will end on May 31, 2013. Because your boss didn’t know you well enough to file H-1 for you for October 2012, and because the cap is full until September 30, 2013, the boss now decides to file H-1B to start in the next fiscal year, beginning October 1, 2013. A smart boss would file at the earliest possible date, which is April 1, 2013.

Here is the problem: as you must know, you are required to maintain valid status at all times while in the U.S. However, your OPT will end on May 31, 2013, but your H-1B job doesn't start until October 1, 2013. In other words, you will have a gap of four months during which you have neither F-1 status nor H-1B status—that is, a gap in which you will have no status at all. In the absence of any special provisions, a person facing such a situation, in order to avoid status problems, would most likely have to leave the U.S., perhaps to the home country, then return later to begin the H-1B job (keep in mind that such a person is permitted to enter the U.S. up to ten days prior to the start of H-1B). But such an alternative, while permissible, can be expensive and bothersome. This situation is what is known as the “cap gap.”

To address this situation, the government implemented a “cap gap extension.” This arrangement solved the “gap” between the end of OPT and the beginning of H-1B. In order to qualify for this extension, an H-1B petition had to be timely filed. That is, it must be filed on or before the end of the OPT. Of course, it also had to be filed on or after April 1, and not before April 1, because the cap is full for the current year.  The petition also must be nonfrivolous, that is, it must have a reasonable basis for being approved.

If such a filing is made, then even though OPT ends while the petition is being reviewed, no status problems arise. If the petition ultimately is approved, then the person’s F-1 status and the person’s work authorization is automatically extended until September 30. Therefore, the person will have valid status even during the former gap, and will have work authorization during the former gap. Then, the day after September 30, which is October 1, the person would begin in H-1B status.

Notice that in order to gain the advantage of cap gap extension, the employer must file the petition prior to the end of OPT. But at the same time, the employer must wait until April 1 or later to file the petition. Therefore, OPT must end after April 1.

If, on the other hand, a person’s OPT ends prior to April 1, some other issues arise, and I will address them in another post.

I hope this information is helpful. You are welcome to contact me at csun@calvinsun.com

The importance of April 1 and October 1 for H-1B status

You may be aware that the dates October 1 and April 1 have significance for H-1B status. In this post, I will explain why they do.

Each fiscal year, Congress has a limit on the number of petitions that can get H-1B approval. This federal fiscal year runs from October 1 until September 30 of the following year. The “year” designation of a particular fiscal year is the ending, not the beginning year. Therefore, “fiscal year 2013” is that year that begins October 1, 2012 and ends September 30, 2013. If, during a particular fiscal year, the cap is reached, then the government is unable to approve any more H-1B cap-subject petitions, and therefore no cap-subject person will be able to work during that fiscal year. Rather, that person will have to wait until the beginning of the NEXT fiscal year, when a new set of H-1B approvals is available and new cap comes into existence. That next fiscal year begins on October 1.

In addition, the H-1B procedure is such that petitions can specify a requested starting date that is up to six months in the future. Therefore, because the earliest time a person can start work in a new fiscal year is the beginning of that year, October 1, then the earliest time an employer can file a petition is six months prior, that is, April 1. If an employer files any earlier, for example on March 31, the petition could not be approved for an October 1, start, because October 1 is more than six months from March 31. In fact, if the cap is full for the current year, and the government receives a petition in the current fiscal year, because perhaps an attorney or paralegal filed the petition too soon, then that petition will be denied.

Given this information, what should you keep in mind for H-1B?

-          Do not file too early

If the cap is full in the current fiscal year (as is true now), then the government should not receive your petition earlier than April 1. If it does, the government will deny your petition. In that case, your filing fees are gone, i.e. the government will not refund them. Therefore, if you are sending your petition via courier such as Federal Express, send your petition AT MOST the day before, no more. Yes, Federal Express offers a lower rate for its “two day delivery” service, and you might be tempted to save money and send the petition two days prior  to April 1. The problem though, is that Federal Express, even though specified a two day delivery, still nonetheless COULD deliver your package in only one day, if they are able. That is, the “two day” specification is an outer limit, not a minimum waiting time. The best approach, therefore, is to file the day before, and ask for overnight delivery.

-          There is no H-1B filing “deadline”

People often ask me, “Calvin, what is the deadline for filing an H-1B petition?” I respond by saying that there is no “deadline.” That is, the government does not end its acceptance of cap-subject petitions based on a fixed date. Rather, it ends its acceptance of such petitions when the cap “runs out,” that is, when no more cap spaces are available. Therefore, the important thing is to file your completed petition as soon as you possibly can.

I hope this information is helpful. You are welcome to contact me at csun@calvinsun.com

Understanding the H-1B “cap” 配额

You probably have heard at least something about the H-1B cap 配额. In this post, I will explain it in more detail, because the cap might be important for you if you seek H-1B status.

The cap was established by the U.S. Congress, via a provision of the Immigration and Nationality Act (INA). Each fiscal year (that is, the federal fiscal year, which runs from October 1 to September 30 of the following year), the number of H-1B approvals is limited to 65,000. When a new fiscal year begins, then a new set of 65,000 H-1B approvals becomes available. Unfortunately, though, the real cap isn’t 65,000, it really, for most people, could be as low as 58,200. The reason for this lower number is that up to 6,800 of the total 65,000 are reserved for nationals of Chile and Singapore.

Several groups of people are not affected at by the cap, or are only partially affected. The first group are those who will be working for an employer which, by law, is exempt from the cap—that is, a cap-exempt employer. Examples include government research organizations such as the National Institutes of Health, nonprofit research organizations and institutions of higher education.  Note that simply being a nonprofit organization, or simply being a non-government organization (NGO) does not by itself make an employer cap-exempt.

The second group not affected by the cap are those who, during the previous six years, had H-1B status at an employer who is subject to the cap (that is, a “cap-subject employer”). These people, should they again seek H-1B status, will be exempt from the cap even if the employer is cap-subject, because they already were counted under the cap. However, their H-1B time is limited to six years less their previous H-1B time. 

For example, suppose a person previously spent two years in H-1B status with a cap subject employer, then returned to school, in F-1, for a year. This person, following school, could change back to H-1B status, and would be cap-exempt even if the employer itself were cap-subject. However, this person would be limited to four years of H-1B cap-exempt time. This four year period arises because, as you may know, a person normally is limited to a maximum of six years of H-1B status, after which (if no green card petitions are begun) the person must leave the U.S. for at least a year before being able to return for more H-1B time.

The third group not affected by the cap are the first 20,000 people who have a master’s degree or higher from a U.S. university in a field related to their proposed H-1B job. By law, according to the INA, the petitions of these 20,000 people simply do not count against the cap. For example, suppose that during a fiscal year, no one from Chile or Singapore files a petition, meaning that the cap really is 65,000. Suppose 65,000 approvals are given to those who have only a bachelor degree. Even so, 20,000 people with master’s degree or higher from a U.S. university in a field related to their H-1B job can still be approved. Or, suppose the first 20,000 petitions the government receives are from such master’s degree or higher people. Nonetheless, the cap number will STILL be 65,000 even after these 20,000 are approved. This feature is called the “master’s cap exemption.”

The government tracks the cap based on the number of petitions it receives. Once it receives 65,000 petitions, it publishes that fact and then refuses to take any more. If the government receives more than 65,000 petitions on that last day, it will choose by lot those petitions that will be accepted under the cap.

Given this information, and assuming neither you nor your employer are cap-exempt, how can you benefit from this information?

-          Ask your employer to file as soon as possible

The earliest date to begin filing petitions is April 1. That is, the government will begin accepting petitions as early as April 1, for people to able to start H-1B jobs the following October 1. Obviously, the longer your employer takes to file, the more spaces will be taken and the greater the risk that the cap will run out before your employer can file. For this reason, you might want to (tactfully) remind your employer. Also, make sure you have all the materials that your attorney, or whoever is preparing your petition, is asking for.

-          Save your money, because premium processing DOES NOT help with regard to the cap

People who file H-1B petitions have the option of selecting premium processing. Under this arrangement, the government can decide on the petition within 15 calendar days, as opposed to the normal two to three months. Premium processing has its uses, but be aware that getting your petition to the government “faster” so as to “beat the cap” is NOT one of them. That is, premium processing does NOTHING to ensure that your petition will be received faster than another non-premium processing petition. Rather, all it means is that assuming your petition even is accepted under the cap, that will receive the promised service. However, those promised services will never occur if the petition is too late.

In other words, if you (or your employer) pay for premium processing because you think your petition will get there faster, you are wasting your money.

I hope this information is helpful. You are welcome to contact me at csun@calvinsun.com

Proposed immigration bill in the House of Representatives, as pertaining to STEM graduates and others in F-1

http://thomas.loc.gov/cgi-bin/query/F?c112:1:./temp/~c112SfYUTd:e1604:

This bill, H.R.2161, introduced in the House of Representatives, is designed to improve immigration procedures, including for graduate students in science, technology, engineering and mathematics (STEM). Please note that this bill is not yet law, and might not become law in its current form. Nonetheless, I have summarized some important points below.

1.       The bill creates a fourth category in the employment-based first preference (EB-1). Along with the existing “alien of extraordinary ability” (EB-1a), “outstanding researcher or professor” (EB-1b) and “multinational executive or manager” (EB-1c), the bill will create a new EB-1d category, for advanced graduates in science, technology, engineering or mathematics. The person would need a job offer, that is, no self-petitioning is permitted as is the case for a national interest waiver.

2.       This EB-1d category would NOT require the same lengthy, cumbersome labor certification as is required for certain current EB-2 advanced degree holders. However, an employer still would have to certify, in the same way as an H-1B hire, that the person is being paid at least the required wage, defined as the higher of the actual wage or the prevailing wage.

3.       Persons in F-1 status, regardless of whether STEM or not, would be considered to have dual intent, similar to H-1B or L-1 status holders. That is, they would no longer have the burden to prove non-immigrant intent. In other words, the fact that an applicant for F-1 status has immigrant intent, for example via having applied for adjustment of status, cannot be the sole reason for denying such an application.

The most significant implication, for STEM graduates, is the classification as an EB-1. Such a classification significantly shortens their green card waiting period, compared to EB-2, because the EB-1 category, according to the State Department visa bulletin, always has been “current,” that is, there is no backlog as with EB-2.

How are the NBA 24-second clock and H-1B related?

You probably don’t think of the NBA 24-second clock as being related to your length of H-1B time in the United States, but actually the two are related. Understanding why can help you plan your approach regarding H-1B.

In the NBA, the offensive team generally has up to 24 seconds to either make a field goal or to at least cause the ball to touch the offensive rim. If they fail to do either, then they lose possession of the ball. However, if the ball touches the rim, and the offensive team then gains control of the ball, they get a new 24 second clock.

H-1B status has its own version of a 24-second clock. In this case, the clock is a six year clock. That is, in the absence of other actions, most notably the start of a green card process, a person is H-1B status is limited to six years in the U.S. in such status. At the end of that six years, the can get additional H-1B time in the U.S. but first must leave the U.S. for at least a year before returning. Upon returning to the U.S., the person will be subject to the H-1B cap if the employer is so subject.

If a person was in cap-subject H-1B status for fewer than six years, then leaves the U.S. for at least a year, then that person has two options should he or she return to the U.S. and seek H-1B status with a cap-subject employer.

First, the person could legitimately seek another six years of H-1B. Just as an NBA team can get a new 24 second clock if the make an offensive rebound of a shot that touches the rim, so too can this person get a new six years, because the person spent at least one year outside the U.S. However, in exchange for getting a full six years, the person will need to be subject to the cap. That is, the employer must file the petition soon enough to be in time, before the cap is reached.

Alternatively, the person can claim an exemption from the H-1B cap, due to having been counted already, during the person’s earlier time in the U.S. However, in this case, the person is ineligible for a full six years of H-1B time. Rather, the person is limited to the remaining unused H-1B time from the previous stay.

For example: a person spends two years in cap-subject H-1B status, then leaves the US for one year.  Upon returning, the person can choose either to have
- a new six years of H-1B time, but will have to deal with the possibility of a cap full situation, because the person will be subject to the cap
- the remaining four years of H-1B time that was unused from the earlier stay, but in return need not worry about the cap, i.e. be cap exempt

In other words, the person cannot have his cake and eat it too. The person cannot have exemption from the cap and also a full six years. Rather, the person will have to choose between cap exemption (and get less than six years) or get a full six years (but be subject to the cap).

A time for everything: when and when not to ask for a job

A few nights ago I attended a talk at Tsinghua Law School. The speaker was a Philadelphia attorney, and his topic centered on investment by Chinese in the assets of bankrupt US companies. After the talk, of course, students gathered in a line to discuss with the attorney various things. One such student asked questions of the attorney, then proceeded to ask about the possibility of a job or internship.  The attorney replied that his law firm did offer internships, and for the student to send a resume.

When I observed what happened, I remembered what the Bible says, in Ecclesiastes 3:

There is a time for everything, and a season for every activity under heaven:…
a time to be silent and a time to speak

I know this attorney, and he is a cool guy, pretty easy going. He is not the type to be upset or offended by someone who, in a public setting in front of others, asks about a job. However, others might not be this way. I also don’t know how the other students in line reacted. For this reason, I spoke to the student later, and recommended an alternative approach—namely, to discuss the substantive nature of the talk, inquire about the attorney’s background, then to be sure to get the attorney’s business card. Then, the next day, or as soon as possible, contact the attorney in a direct private conversation and ask about job possibilities. This way avoids the embarrassment, on the part of the speaker or the other students, that could be associated with the original approach.

In other words, always be sure that the setting is correct for the conversation you wish to have.

Job opening: senior accountant, for American Baptist International Ministries, in Valley Forge PA

American Baptist International Ministries (IM) Job Posting Announcement Senior Accountant

American Baptist International Ministries (IM) is seeking qualified candidates to fill the position of Senior Accountant. This is a full-time position located at the Mission Center in Valley Forge, PA.

[note from Calvin: I do not know whether or not they will support a non-immigrant status such as H-1B. I will ask them and if I get an answer, I will post it here. I do not know any more details than what I have posted, but this organization is well thought of, and the parent organization was one of the founding denominations of my church. Also, the person who told me about this opening is a pastor, as well as a staff member there and also a member of my church.Thanks.]

Details:

Join a vibrant ministry that is helping people all around the world come to Christ, grow in Christ, and change their world for Christ!

Role and Responsibility: The Senior Accountant is a Finance Team position within American Baptist International Ministries (IM). The Senior Accountant reports to the Controller of American Baptist International Ministries. Responsibilities include: Supporting the Controller in maintaining the integrity of the general ledger/financial statements; Assisting with compliance reporting including missionary and partner grant reporting; Developing and composing detailed procedures to implement corporate and departmental policies; Providing support for the annual audit; Performing monthly close procedures; Assisting with reviewing, monitoring, reconciling, and analyzing general ledger accounts; Overseeing the fixed assets and prepaid schedules; Cross-training within the Finance Team to provide support to the team during absences; Developing various ad hoc reports as requested.

Education, Experience and Competencies: Bachelor’s degree in Accounting or Business with minimum five years accounting experience required and extensive knowledge of accounting principles. Must possess knowledge and commitment to the mission of American Baptist International Ministries. Requires high degree of integrity and excellent analytical, communication (written and oral including the ability to develop and write detailed procedures/reports), organizational and attention-to-detail skills. Evidence of global and/or cross-cultural experience preferred. Must be proficient with Microsoft Excel, Outlook, Word, and Dynamics/Great Plains accounting software or comparable general ledger software. FRx reporting and non-profit experience preferred.

Compensation: Competitive compensation package including employer paid contributions to a 403(b) retirement plan, healthcare benefits (medical, dental, and vision,) and paid time off (vacation, sick leave, and holidays).

International Ministries serves more than 2,000 volunteer, short-term and long-term missionaries working in 70 countries.

If you are ready to be a part of this dynamic organization, send a cover letter, resume, and name/address/phone numbers of three (3) professional references to: jobs@abc-usa.org This posting will close on December 21, 2012.

Getting H-1B even though job does not require college degree

I sometimes get inquiries from people who are interested in gaining H-1B status. However, they are concerned about the fact their job does not require a bachelor degree.

I tell them that I have been able to get H-1B status for such people in the past. While a bachelor degree requirement can be important in a job description for H-1B, such a requirement is not mandatory.  That is, even without such a requirement, a person still can get H-1B status for such a job. The key, though, is to show that the job is sufficiently complex so as to require such a degree.

How can you do so? Look at the job description, and analyze why certain aspects are complex. Also, look at listings for similar positions at other companies, for example on web sites such as monster or careerbuilder. Another method is to get an expert opinion letter. In one of my cases a client support agent job at a software company had no bachelor degree requirement. However,  I provided a job description and other information to an associate of mine, a retired chief information officer at several major US companies. This person wrote a letter after reviewing the information, and stated his opinion that the job was complex enough to require a bachelor degree.

As a result of my efforts, and this letter, my client received H-1B status.

In other words, even if your job description doesn't require a college degree, you still might be able to get H-1B status through that job.

This information does not constitute legal advice.

Applicability of the SEVIS fee

If you are in F, M or J status, you might be subject to a SEVIS fee. This fee is used to support the Student and Exchange Visitor Information System, a computer system developed after September 11, 2001.  Generally speaking, new persons in such status are subject to the fee, while returning persons are not. More importantly though, this fee is separate from any fees imposed by the educational institution, State Department visa fees or United States Citizenship and Immigration Services (USCIS) filing fees.

To pay this fee online, visit https://www.fmjfee.com/i901fee/index.jsp When you finish, you will be given a confirmation number and the chance to print a payment confirmation page. You should bring that page to your visa interview.

Are you still waiting for your H-1B decision?

I hope the situation I am about to describe does not apply to you. But if it does, you might want to pay attention.

Are you in this situation:
- Your OPT ended this year on or after April 1.
- Before your OPT ended, your employer filed a cap-subject H-1B petition for you.
- You are STILL waiting for a decision on your petition.

If you are in this situation, then you had received a "cap gap extension." The idea of this extension was to allow you to continue working, even past the end of your OPT period, by extending your OPT to September 30. This extension was accomplished by the filing, by your employer, of a "nonfrivolous" H-1B petition prior to the end of your original OPT. Then, in theory, the day after September 30, that is, October 1, you would continue in your job, but now in H-1B status.

The problem for some people is that their petitions are taking a LONG time to be decided on. I have heard that several thousand petitions, even those filed in early April, still are awaiting a decision. This amount of time is FAR beyond the government's stated objective of two months.

I feel badly for you if you are in this situation.I feel even worse to have to tell you that unfortunately, you were required to stop working on September 30. Only after you receive a favorable decision on the H-1B petition may you begin working again.

Sorry to have to share this news.

Country artist George Strait is retiring; information on final tour

I am sorry to hear that George Strait, known as the King of Country Music,  King George and the Texas Troubadour,  is retiring :(. His final tour starts in January 2013.  If you are reading this blog post as a result of something I sent to you or your group, chances are that one of the concert dates is in your area. A list of the tour, to date, is at http://www.georgestrait.com/calendar.asp. Most likely, more dates and places will be added later. Remember, this tour is your last chance to see him live.

I strongly recommend that you see this guy, he is GREAT. He has been performing since 1980, and has nearly 60 #1 hit songs. I have seen him four times, each one better than the last.  Listening to and understanding true country music will give you great insight into American culture lol, something important if you later seek a green card.  If you have never heard a George Strait song on the radio during your time in school, I will be shocked.  Probably you heard one but didn't make the connection, so if you go to the concert, you might recognize at least one song lol.

He has many “hit” songs, so naming favorites is hard. However, the ones I like best are

-              “Check Yes or No”

Guy looks back on how he met wife, now married 20 years. When they were both in third grade, she gave him a note that said “Do you love me? Do you wanna be my friend? I think this is how love goes, check yes or no”  http://savetubevideo.com/?v=NHxS8wlDngI  

-              “The Best Day”

Three events in lives of father and son. 1. Son is 7 years old, they go camping 2. Son turns 15, dad buys car for son, they work together to fix it up. 3. Son is about to get married. Each time, son says, “Dad, this could be the best day of my life.” http://www.savetubevideo.com/?v=j6HDfJogNx0  

-              “Amarillo by Morning”

Cowboy is hoping to get to Amarillo TX in time to compete in a rodeo. http://www.savetubevideo.com/?v=kX_9Go0Z8e4  

-              “The Chair”

Guy says to girl in a bar, “Sorry, you are sitting in my chair.” Additional conversation, all from guy’s perspective. At the end, we learn the truth about the chair.  http://www.savetubevideo.com/?v=ceoh9Y_Ixug  (1996) and http://www.savetubevideo.com/?v=QvBCDejG-pk (mid 1980s)

If you go to a concert, here is some helpful information:
- the band always comes out first, George Strait himself will come out later. I mention this because one of the guys in the band, a guitarist, wears a cowboy hat just like the one George Strait wears. My daughter saw this man, as the band was getting ready, and asked.
- the band will start playing an instrumental-only version of "Deep in the Heart of Texas." About 30 seconds into the song, George Strait will enter, of course to raucous cheers.First vocal song in the past was "Twang," but I think this time it will be "Here for a Good Time." www.savetubevideo.com/?v=HG4LP_IhvC0&feature=share&list=PLEB3A9D104DA7AB99 
- do not be fooled by the APPARENT end of the concert. Usually, after "Unwound," he and the band will wave and leave the stage, and the stage will go dark. DO NOT LEAVE. The concert is NOT over. They will come back and do three or four more songs, including probably "Folsom Prison Blues" and "All My Exes Live in Texas." He usually does 28-30 songs.
- It isn't over until he sings "The Cowboy Rides Away." http://savetubevideo.com/?v=JJVuTVVcu50

If you go, please let me know what you thought. Thanks.

Here is photo of younger daughter, Rayna, and me in May 2009 at PNC Arts Center, in Holmdel NJ.

Here is a photo of George Strait at that May 2009 concert:

Here is a photo of Blake Shelton, who was one of the opening acts. This is the same guy who was a judge on the TV show "The Voice."

Losing your H-1B job before it even starts?

The good news: You are in OPT, and learned that your H-1B cap subject petition was approved for a start date of October 1.

The bad news: your boss just told you that the company changed its mind about hiring you for H-1B. When your OPT ends September 30, you must leave your job and this company.

In the past few months, I have had a number of people contact me about being in this situation. They wonder, in particular, if they have a problem because the H-1B cap is full.

I gladly tell them, and tell you: these people, though they will not have H-1B at their current employer, nonetheless have a “silver lining”: they are already counted against the cap, and therefore ARE able to begin work on October 1, assuming they find an H-1B qualified job and then they themselves are approved for a H-1B petition. That is, the fact that the H-1B cap is full has no effect on them.

These people, once they find a job, need to provide their employer or the immigration attorney with a copy of their approval notice, so that it can filed along with the petition.

I hope this situation never happens to you. If it does, however, and your H-1B petition is still being reviewed, the important thing is that the review is able to be finished, and that it results in an approval. The worst thing that can happen is that your employer, after telling you that you will not have H-1B, then goes ahead and withdraws the petition before it is approved. In that case, you will NOT have the advantage of being counted under the cap.

Driver license document requirements, by state

The following link shows a chart that gives, for each US state, the documents required in order to obtain a driver license. Please note that requirements may change at any time. The best approach is always to confirm the information on the chart directly with the license issuing authority of the state.

http://www.calvinsun.com/html/driver_license_document_requir.htmlDriver license information

H-1B and licensing requirements

If you are seeking H-1B status with respect to a job, be aware that generally speaking you will need to hold any license that the job might require.For example, professional engineers, physicians and attorneys, among other workers, are generally required to have a license. If your petition, therefore, involves such a job, you may need to have the respective license. Furthermore, if you are in fact required to hold the license, you must have it at the time your petition is filed.  Filing the petition without the license, in the expectation and hope that you will receive it before the start of your H-1B status, is not an advisable practice.

The H-1B regulations provide one exception to this rule, and one can call this exception that of the "the chicken or the egg."  One instance in which you do not have to have such a license is that where the license requires you first to have a social security number, for which in turn you must have H-1B status to begin with.

In this situation, you are not required to have the license. However, you must submit proof, regarding this social security number requirement, from the organization or agency that issues the license. Then, if your H-1B petition is approved, the approval will last only for one year. During that time, you will be required to apply for and obtain the license.

Contact me at 215-983-3723 or csun@calvinsun.com

Official vs. original documents

In the course of seeking a visa to, or status in, the United States, you often will need to show documents to a U.S. government agency. For example, in seeking H-1B status, or renewal of an F-1 visa, you will need to provide an “official” transcript. Such a transcript is one that is issued by your university (usually, the registrar). In addition, the transcript often will have the seal of the university, and an indication that it came from the registrar.  On the other hand, a transcript that you yourself print, for example via BlackBoard or Banner, generally will not be considered “official.”

Even though you probably will need an “official” document, you may not necessarily need an ORIGINAL of that official document. That is, most likely a photocopy or scanned version of that document will be sufficient (assuming of course that no one altered the original document, or the copy of the original, because doing either would involve serious legal consequences). When I file documents with USCIS, I have never been asked to show an original document. Likewise, the non-immigrant visa section of the U.S. Embassy in Beijing has told me that a photocopy of an official transcript is sufficient for their needs.

Therefore, although your document may need to be official, it might not necessarily have to be original.

My email is csun@calvinsun.com 

EB-2 China and India cutoff dates are still unavailable

I am sorry to say that if you are waiting for your EB-2 priority date to become current, and you were born in China or India, you will still need to wait longer. The State Department visa bulletin for September 2012 was just published, and it continues to show that cutoff dates for EB-2 green cards are still unavailable.

The employment-based figures, available also at ww.travel.state.gov/visa/bulletin/bulletin_5759.html, appear below:

MPLOYMENT-BASED PREFERENCES

First: Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.      

Third: Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "*Other Workers".

Fourth: Certain Special Immigrants:  7.1% of the worldwide level.

Fifth: Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	01JAN09	U	U	01JAN09	01JAN09
3rd	01OCT06	15DEC05	08OCT02	01OCT06	01AUG06
Other Workers	01OCT06	22JUN03	08OCT02	01OCT06	01AUG06
4th	C	C	C	C	C
Certain Religious Workers	C	C	C	C	C
5th Targeted EmploymentAreas/ Regional Centers and Pilot Programs	C	C	C	C	C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with visa availability information which can be heard at:  (202) 663-1541.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

Best for employer to pay all H-1B fees

I am going to raise an issue that will upset some people or at least make them uncomfortable, and for doing so, I apologize. However, this issue is important, given certain recent court administrative law decisions. I am suggesting that, with regard to H-1B, the best arrangement for everyone is simply for the employer to pay ALL costs of H-1B. These costs include
- attorney fee, if any
- $325 base filing fee
- $500 fraud prevention fee, in most cases
- $750 or $1500 training fee, depending on the size of the employer, and if the employer is subject to the training fee in the first place.

In the past, some attorneys, including this one, would have been OK with having the employee pay certain expenses, so long as the employee still remained at or above the "required wage" after deducting these payments from salary. However, I have changed my position, and now do not follow this practice anymore.

Bottom line: everyone is better off, and employer is less likely to get into trouble, if employer pays all expenses.

I know you probably don't want to hear what I am saying. You want to make things as easy as possible for your employer, so you are probably willing to pay everything yourself, or else reimburse the employer after the employer advances the payments for these fees. The problem is that the government is taking a stricter view in this regard. I don't like their view and don't agree with it, but trying to fight them is probably impractical.

While I cannot offer legal advice, and though every situation is different, I would like to suggest one possibility: namely that you be flexible in the salary that you are willing to accept. If the employer is going to have to pay extra expenses, you might need to be willing to accept a corresponding lower salary to make up for it. However, remember that your salary, regardless of amount, still must meet the H-1B required wage standard.

My email is csun@calvinsun.com

Reflections on the 2012 H-1B filing period

While handling H-1B cases during the past few months, including unfortunately several “cap full” situations, I reflected on some common questions and issues of those cases, and share them below. Please note that this information is not legal advice.

 Neither non-profits or NGOs by themselves qualify for cap exemption

During the past few months, several people said that they might be working for a non-profit organization, or for a non-governmental organization (NGO).  These people wanted to know if working for such organizations would exempt them from the cap. I explained to them that unfortunately the Immigration and Nationality Act does not reference either type of organization with respect to H-1B cap exemption. The federal regulations that govern H-1B status similarly make no such mention.  In other words, simply being non-profit or being an NGO is insufficient, by itself, for such an exemption.

In order to be exempt from the cap, an employer needs to be an institution of higher education as defined by section 101(a) of the Higher Education Act of 1965, a government research organization, a non-profit research organization or an organization that has a qualifying affiliation with an institution of higher education. Simply being non-profit, or simply being an NGO is insufficient for an organization to have cap exemption.

You can have an April 1 H-1B filing date, OR you can have a full three years of H-1B time, BUT YOU CANNOT HAVE BOTH

Those of you who plan to file a cap-subject H-1B petition as early as possible, i.e. on April 1, should be aware that doing so will deprive you of time at the end of our H-1B period. That is, you will not be able to get your full three years of H-1B time, but rather will have that time reduced by about two weeks.  Conversely, if you want to have the full three years of H-1B time, you will not be able file right on April 1, but would need to wait until perhaps April 10 or 11.

In other words: you can have an April 1 filing date, or you can have a full three years of H-1B time, but you CANNOT HAVE BOTH.

The reason for this situation involves the relationship between the labor condition application (LCA) and the H-1B petition, as well as the processing time for the LCA.

Like the H-1B petition, an LCA can be filed up to six months in advance. In addition, like the H-1B petition, an LCA can request a period of up to three years.  However, the LCA must be filed and certified, and then included with the H-1B petition. That is, the LCA filing and certification must occur before you can file the H-1B petition.  Furthermore, the LCA typically requires about six to seven business days for the certification.  This processing time prevents you from getting a full three years of H-1B should you file on April 1. Here’s why.

Let’s say that you wanted to file your H-1B petition on April 1, 2012 (and let’s pretend April 1 was a business day, even though it was really a Sunday).  Doing so would allow you an H-1B period of October 1, 2012 to September 30, 2015.  However, the H-1B filing would need to include a certified LCA . Therefore, in order to have the certified LCA by April 1,  you would need to submit the LCA material about seven business days in advance of April 1, for example March 20.

If you submit the LCA on March 20, then specifying an October 1 LCA start date (to match the H-1B start date) would be IMPOSSIBLE, because October 1 is more than six months from March 20.   Rather, the latest that the LCA period could start would be September 20, and the longest it could run would be to September 19, 2015.  The government will not allow you have H-1B time that exceeds the end of your LCA time, so they will shorten your H-1B to end on September 19 rather than September 30.  In other words, you would lose 11 days of time at the end of the H-1B period.

If, on the other hand, you wanted a full three years of H-1B time, starting from October 1, 2012, you would need to submit your LCA no earlier than April 1, 2012.  You then would probably receive the certification around April 10, meaning that the earliest you could file your H-1B petition would be April 10 or later.  In this case, you could get a full three years. However, you would not be able to file right on April 1, but rather on April 10 or later, and therefore would run a greater risk that the cap will fill up in the meantime.

Official transcripts

If, as a university student, you are using a system such as Banner or Blackboard, you probably have the ability of printing your own transcript. Be aware, however, that according to regulations, such a transcript is insufficient for H-1B petition purposes. That is, submitting such a transcript might not be convincing to the government reviewer, and might result in a request for a “real” transcript—that is, one that is issued by the university itself, generally by the registrar’s office.  I am not saying that every petition submitted with an unofficial transcript will be delayed or denied, but rather that you are safer if you comply with the requirement by submitting an official transcript.

For this reason, try to take care of such matters earlier rather than later. An official transcript typically comes from the registrar’s office of the university. They often require a week or two to process a transcript request, and often they do not take credit cards, only checks. The sooner you can supply an official transcript, the sooner your attorney will be able to file, and the greater your chances of “beating the cap.”

Photocopies rather than originals

The government could ask you to provide an original version of a document, such as a passport or transcript. However, I have never received such a request. For this reason, save original documents in your personal file, and submit only photocopies instead. More importantly, make sure your photocopies are accurate ones of unaltered original documents. Do not submit photocopies of altered original documents, because doing so could get you into really serious trouble.

Certified translations

Any document you submit that is not already in English must be accompanied by a certified English translation.  The person who certifies the translation must be someone who is fluent in English and the other language, and must sign a statement regarding their fluency and also that the translation is accurate.  That person also may be the one who actually does the translation, but need not be. Therefore, for example, you yourself could translate the document, then have another person merely review and certify the translation.

Use consistent email address

If you send information to your attorney via e-mail, try to be consistent with respect to the email address you use. That is, avoid using more than one email address. By using a consistent single address, you make your attorney’s job less complicated in reviewing and looking for your previous e-mail. In addition, remember that email is not secure. Therefore, you might want to avoid providing sensitive information such as a social security number via email, but rather do so verbally or via fax or regular mail.

 Premium processing does not gain you any cap advantage

Understanding the limitations of premium processing is important, especially if you yourself will be paying for it. In particular, a petition that specifies premium processing gets no special treatment with regard to the cap.  In other words, there is no special set-aside, that is, no reserved number of cap spaces for premium processing petitions.  Put another way, only after a petition is counted against the cap (assuming it even arrives in time) will its premium processing status be taken into account.

In general, the sooner you can work following the petition filing, the more sense premium processing makes. Conversely, the longer you must wait, the less sense premium processing makes. If, for example, your employer is exempt from the cap, meaning that you could work immediately upon approval, then you would want to consider premium processing.  Of course, you would need to make a financial calculation to see if the approximately 1.5 months of time you save versus regular processing (i.e. the 1.5 months of extra income) outweighs the extra $1225 fee for premium processing.

On the other hand, if your petition is filed on April 1, but you cannot work until October 1, then premium processing does not benefit you financially. In this case, the potentially faster time to a decision doesn’t allow you to work sooner. The only potential benefit in this case is peace of mind.

Blue ink for signatures

Whoever signs any United States Citizenship and Immigration Services (USCIS) form, such as the I-129 petition itself, the G-28 notice of appearance or the I-905 premium processing request, should consider using blue ink. Because USCIS requires original signatures, one in blue ink is less likely to be mistaken as a photocopied signature and less likely to be questioned or rejected.

30,300 H-1B cap-subject petition filings through April 13, 2012

Through April 13, 2012, approximately 20,600 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 9,700 H-1B petitions for aliens with advanced degrees.

The total, therefore, is approximately 30,300.

Those of you seeking H-1B, who are subject to the cap and who have at most a bachelor degree must deal with an annual limit/quota 配额 of 65,000.  If you have a master degree or higher that is related to your job, you have an additional 20,000 approvals, for a total of 85,000 available to you.

EB-2 limit is reached for fiscal year 2012

I am sorry to say that the annual limit for employment second-preference green cards (that is, "EB-2 green cards") has been reached.  Anyone with a priority date that is later than the latest cutoff date of August 15, 2007 will have to wait at least until October 1, 2012 to see when their visas might become available. October 1 is the beginning of a new fiscal year for the U.S. government (i.e. fiscal year 2013), and therefore (by the way) it is also the date that new H-1B approvals become available for cap-subject employees.

The May 2012 visa bulletin lists the August 15, 2007 cutoff date for employment second-preference petitions for people born in China, among several other countries.  Because the limit has been reached, future visa bulletins until the end of the fiscal year will continue to show that same date, i.e. there will be no forward progression of cutoff dates as was the case recently.

This situation applies to those seeking a green card as an advanced degree professional, an alien of exceptional ability or who are petitioning for a waiver from job offer on the grounds that their job benefits the national interest (i.e. a national interest waiver), who also were born in China.  The names of countries in the visa bulletin refer to country of BIRTH, not country of citizenship.

This situation stinks, and I feel badly, because I know that those you in this position might have been waiting a long time for your visas to become available.  I hope the situation will improve soon.

Here is a news item from the web site of American Immigration Lawyers Association, AILA:

China-Mainland Born and India EB-2 FY2012 Annual Limit Reached

Cite as "AILA InfoNet Doc. No. 12042360 (posted Apr. 23, 2012)"

AILA has confirmed with the State Department that the annual limit in the EB-2 category for China-mainland born and India has been reached. The State Department notified USCIS on April 11, 2012, that no further visas for those categories would be authorized. This is the “additional corrective action” that was forecast as a possibility in Section D of the May 2012 Visa Bulletin (AILA Doc. No. 12040652). USCIS will continue to accept adjustment applications based upon cut-off dates published in the April and May Visa Bulletins. However, requests from USCIS service centers and field offices for visas in the EB-2 category aliens chargeable to China-mainland born or India will be retained by DOS for authorization in FY2013, beginning on October 1, 2012.

H-1B petition filings through April 9, 2012

Through April 9, 2012, United States Citizenship and Immigration Services (USCIS) has received approximately 25,600 H-1B petitions. The total "cap" each year is 65,000 "regular" petitions (bachelor degree) plus an additional 20,000 for those with a master's degree or higher that is related to their occupation.

http://www.aila.org/content/default.aspx?docid=39202

This rate of submissions is far ahead of that from last year.

Over 22,000 H-1B cap-subject petitions were filed at beginning of April 2012

In the first three days that H-1B cap-subject petitions can be filed for fiscal year 2013, over 22,000 such petitions were received. About 25% of these petitions were for the advanced degree exemption.

The rate of submission of petitions is far ahead of that from last year. The total number of approvals is “capped” at 65,000, with an additional 20,000 for those with at least a master’s degree in a field related to the occupation. While I cannot, of course, say exactly when the cap will be filled up, I believe it will happen soon. 就是，我不能预测，配额什么时候满额，但是我觉得，是很快。Almost certainly it will happen ahead of when it did last year.

If you are interested in having H-1B status, and your job is subject to the cap, I recommend that you talk about it with your boss as quickly as possible.

Please see information below. This information, through Sunday, April 8, was NOT available from USCIS web site.

www.aila.org/content/default.aspx?docid=39175
H-1B Cap-Subject Petitions Received by USCIS
Cite as "AILA InfoNet Doc. No. 12040553 (posted Apr. 5, 2012)"
USCIS informed participants at the CSC/VSC stakeholder engagement in Laguna Niguel, CA, on April 5, 2012, that 22,323 cap-subject H-1B petitions have been received as of April 4, 2012. Approximately 25% of these cases are for U.S. advanced degrees. According to USCIS, the number of filings received in the first few days of the H-1B season is almost double the number of filings received by USCIS during the same time last year.