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.

Suggestions regarding H-1B filing

Because the cap-subject H-1B filing season for fiscal year 2013 has begun, I thought I might share some suggestions for any of you who are in the fortunate position of having an employer petition for you. These suggestions are important regardless of whether or not an attorney is involved with your petition.

1. Make sure to match the labor condition application (LCA) and H-1B dates
Make sure, when completing the LCA, that you keep in mind the (presumed) October 1, 2012 desired H-1B start date. A common mistake with the LCA in this situation is to specify the current date as the start date, and this date would probably be right now, i.e. April. The LCA period, like H-1B is three years. However, if you (accidentally) request that the LCA begin six months earlier than H-1B period, then the LCA also will END six months earlier than your specified H-1B period. In this case, United States Citizenship and Immigration Services (USCIS) will simply reduce your H-1B period to match the LCA period. In other words, you may end up with only two and a half years of H-1B status rather than three.

2. Pre-verify the employer’s federal employer identification number (FEIN) with Department of Labor
The LCA requires your employer’s FEIN. However, the system the Department of Labor uses to validate the FEIN is their own system, not one from the Internal Revenue Service (IRS). Often, the Labor system is incomplete, meaning that even though the FEIN you entered was a “real” one, the Labor system might still not recognize it, and therefore will deny your LCA. In that case, you will have to notify the Department of Labor and give them FEIN documentation, then wait for them to verify the FEIN, then you will have to resubmit the LCA.

A better approach is to pre-validate the FEIN with Department of Labor even before you file the LCA. Doing so could save you two weeks.

3. Diploma is probably insufficient evidence of degree
You will need to submit evidence of at least a bachelor degree. However, a diploma by itself is probably insufficient evidence, because the H-1B regulations require that the evidence show the courses you took, the periods of time you attended and that the evidence be attested to by the keeper of records of the educational institution. A diploma probably will not show these things.

4. If employer is nonprofit research organization, provide evidence of it
A nonprofit research organization is one type of employer which is exempt from the cap. However, make sure you provide evidence of nonprofit and of research.

5. Make sure you use the most current form
Make sure you use the most current I-129 petition form, or at least an acceptable earlier one. The date of the form is on the bottom right corner of the first page. Using a current form is crucial, because the form now requires your employer to certify that he/she has read and will comply with deemed export rule, with respect to release of controlled technology to a foreign national in H-1B status.

These suggestions are for information only, and should not be considered legal advice.

Calvin Sun， attorney at law 孙自成，律师
610-296-3947, cell 215-983-3723
csun@calvinsun.com
Pr. 17:15, 箴言17:15

The J status "two year return home" requirement doesn't go away all by itself

If you are not or have never been in J status, you probably have no interest in this post. Otherwise, you may want to read it, because it could save you trouble and panic in the future, as well as the possibility of losing out on an H-1B job offer.

The J status “two year return home” requirement will not disappear all by itself. No matter how long ago you might have been in J status, if you were subject to the requirement at that time, and did nothing about it, you are still subject to it now. The government neither forgets about the requirement nor excuses you from it just because a long time has passed since the time you were J status or just because you have moved into other statuses since that time.

Over the past few weeks, I have gotten calls and e-mail from people whose OPTs are ending soon, and who want information about changing to H-1B. The first thing I ask them is whether or not they ever were in J status. After we talk, I believe that a number of them, who did have J status in the past, do further investigation, realize that the requirement still applies to them, then call me back and are upset and anxious.

This requirement, also known as the “212e requirement,” states that certain people who have or had J status must return to their home country or country of last residence for at least two years before they can change to, among others, H status (including H-1B) or get a green card. Alternatively, such people might be able to apply for a waiver of this requirement, that is, they might successfully ask to be excused from this requirement (but note that not every J person who is subject to 212e will be able to get this waiver). People who are subject to this requirement but who nonetheless want H-1B status or other relevant immigration benefit must either meet the requirement or get a waiver, if it is possible.

Note that just being in J status by itself does not automatically subject you to the requirement. Other conditions must exist as well.

At this point, you might be thinking, “What’s the big deal? I am subject to 212e, and I have neither gotten the waiver nor met the requirement yet. But still I was able to move from J status to F status, and the government didn’t say anything about, or force me to meet or waive the 212e requirement.” If you think this way, you are right—the 212e requirement does not apply to changes to F status. However, don’t be fooled: even though the 212e requirement didn’t catch you on the move to F status, it still is there. That is, the requirement did not go away, and you are still subject to it. Specifically, it will catch you when you later move from F to H status. In other words: moving from J to F is not a 212e issue. However, moving from F to H-1B IS and WILL be a 212e issue, if you are subject to it.

Here is the situation you want to avoid: You were in J status in the past, and you were and still are subject to 212e. Now you change to F-1 status, and because no one bothered you about 212e, you forgot about it. Later, during your OPT, you find an employer who is willing to petition for H-1B for you. But now, as time is running out on your OPT, you all of a sudden remember the 212e requirement, and realize that you have a HUGE problem. Your employer probably will not want to wait two years for you to fulfill 212e. Also, getting the waiver, assuming you can get it at all, may take several months, perhaps longer than even the end of your grace period. In other words, if you are not careful in addressing 212e, you could hurt yourself by losing out on an H-1B job opportunity.

If you find that you are subject to 212e, and are eligible for a waiver, I strongly urge that you take care of it as promptly as you sensibly can, or at least avoid waiting until the last minute, i.e. until the ending stages of your OPT.

Below is section 212e of the Immigration and Nationality Act. You are welcome to read it to confirm what I have said, or if you have trouble sleeping at night.

Please understand that every person’s situation is different. Therefore, please do not rely on the above as legal advice.

Calvin Sun, attorney at law 孙自成，律师
1776 East Lancaster Ave. #306Paoli, PA 19301
610-296-3947
Pr. 17:15，箴言17:15
csun@calvinsun.com

(e) No person admitted under section 101(a)(15)(J) or acquiring such status after admission (i) whose participation in the program for which he came to the United States was financed in whole or in part, directly or indirectly, by an agency of the Government of the United States or by the government of the country of his nationality or his last residence, (ii) who at the time of admission or acquisition of status under section 101(a)(15)(J) was a national or resident of a country which the Director of the United States Information Agency pursuant to regulations prescribed by him, had designated as clearly requiring the services of persons engaged in the field of specialized knowledge or skill in which the alien was engaged, or (iii) who came to the United States or acquired such status in order to receive graduate medical education or training, shall be eligible to apply for an immigrant visa, or for permanent residence, or for a nonimmigrant visa under section 101(a)(15)(H) or section 101(a)(15)(L) until it is established that such person has resided and been physically present in the country of his nationality or his last residence for an aggregate of a least two years following departure from the United States: Provided, That upon the favorable recommendation of the Director, pursuant to the request of an interested United States Government agency (or, in the case of an alien described in clause (iii), pursuant to the request of a State Department of Public Health, or its equivalent), or of the Commissioner of Immigration and Naturalization after he has determined that departure from the United States would impose exceptional hardship upon the alien's spouse or child (if such spouse or child is a citizen of the United States or a lawfully resident alien), or that the alien cannot return to the country of his nationality or last residence because he would be subject to persecution on account of race, religion, or political opinion, the Attorney General may waive the requirement of such two-year foreign residence abroad in the case of any alien whose admission to the United States is found by the Attorney General to be in the public interest except that in the case of a waiver requested by a State Department of Public Health, or its equivalent, or in the case of a waiver requested by an interested United States government agency on behalf of an alien described in clause (iii), the waiver shall be subject to the requirements of section 214(l) 22aaa/ : And provided further, That, except in the case of an alien described in clause (iii), the Attorney General may, upon the favorable recommendation of the Director, waive such two-year foreign residence requirement in any case in which the foreign country of the alien's nationality or last residence has furnished the Director a statement in writing that it has no objection to such waiver in the case of such alien.