USCIS will reject any H-1B petitions filed under regular cap or advanced degree exemption cap starting April 6, 2013. A computer lottery will be conducted by the USCIS at a future date (to be announced) to randomly select both advanced degree exempt and regular petitions for FY 2014. Here are the outlines of the lottery process:

1. The lottery will be conducted to select 20,000 advanced degree exempt petitions first.
2. The lottery for 65,000 regular cap petitions will be conducted next. Any advanced degree exempt petitions NOT selected by the first lottery (read # 1 above) will be included in this lottery.
3. ALL petitions received between April 1, 2013 and April 5, 2013 will be included in the lottery and have equal chances of selection, which means that the petitions received on April 1 will have SAME chances of selection in the lottery as those received on April 5.
4. USCIS will continue to accept any cap-exempt petitions (Such as those from Non-profit organizations, universities etc).

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SGM Law Group would like to inform our reader that in case of a lottery, ALL petitions received between April 1 and April 5, 2013 must be included in the lottery. According to USCIS regulation: 8 CFR §214.2(h)(8)(ii)(B):

“If the final receipt date is any of the first five business days on which petitions subject to the applicable numerical limit may be received (i.e., if the numerical limit is reached on any one of the first five business days that filings can be made), USCIS will randomly apply all of the numbers among the petitions received on any of those five business days, conducting the random selection among the petitions subject to the exemption under section 214(g)(5)(C) of the Act first.”

So an H1B petition received on April 1 2013 has the same chance of getting selected in the lottery as the one received on April 5, 2013.

If no lottery is required then USCIS will continue accepting petitions until the final receipt date but will reject any petitions received after that date.

The last time a lottery was used for H-1B cap-subject cases was in April 2008. Because of the recession and slow recovery, USCIS has not needed to use the lottery system to select petitions in recent H1B cap seasons.

More information on H-1B quota news was posted earlier in our article on H1B 2013-2014 cap count.

If you intend to file an H1-B cap-subject petition then we at SGM Law Group recommend that you begin the process now since USCIS is anticipating that both the regular and advanced degree cap could get filled up as soon as April 5, 2013. If USCIS receives more petitions than it can accept, USCIS will use a lottery system to randomly select the number of petitions required to reach the numerical limit.

To elaborate further, USCIS expects that more than 20,000 petitions will be filed for individuals with a U.S. Masters Degree or higher and more than 65,000 petitions for those individuals who fall under the regular cap.

For the last Fiscal Year of 2013 the cap was reached around June 15, 2012 which was way earlier than the previous year (FY 2012) when the cap was open until November 2011. When economy was going through a slump in the years 2009-2011 the H1-B cap was open for at least six months and sometimes even longer.

H1-B petitions require a bona fide job offer and a Bachelor’s degree or equivalent in a related field. The process entails filing a Labor Condition Application (LCA) with the Department of Labor (DOL). The DOL takes between 7-10 days to certify the LCA. It’s only after the LCA is certified for the intended period of employment, can an H1-B petition be filed with USCIS.

USCIS has further indicated that given the high number of H1-B petitions that are expected this year, Premium Processing of H1-B cases will commence on April 15, 2013.

The Department of Homeland Security made an announcement on January 31, 2012 regarding the possibility for an H-4 spouse to work:

• Provide work authorization for spouses of certain H-1B holders.

This proposed change to the current DHS regulation would allow certain spouses of H-1B visa holders to legally work while their visa holder spouse waits for his or her adjustment of status application to be adjudicated. Specifically, employment will be authorized for H-4 dependent spouses of principal H-1B visa holders who have begun the process of seeking lawful permanent resident status through employment after meeting a minimum period of H-1B status in the U.S. This effort will help retain talented professionals who are valued by U.S. employers and who seek to contribute to our economy.

The exact details of the proposal for allowing EADs for those in H-4 status are not public. However the abstract indicated that the proposed EAD eligibility would be limited to H-4s whose H1B primary spouses held status extended beyond the six-year limit under the American Competitiveness in the 21st Century Act (AC21).

While this is certainly a good news overall, it’s important to note that this benefit would apply only to those H-4 spouses of principal H-1B visa holders who have already started the application for U.S. permanent residence (Green Card) through employment and have extended their authorized stay in the U.S. under AC 21 Act. This means that an H-4 spouse whose H-1B principal has spent less than 6 years in the USA will not be eligible to apply for an EAD. Moreover, a PERM labor certification or I-140 would have to have been filed, and even approved to qualify for the 3 year H extension if less than 365 days had elapsed since submission.

This new development has given a new hope to several individuals in H-4 status who are currently in a very lengthy green card approval process. However the OMB review is usually a  long and complex process, which can take unexpected turns. We will continue to update our clients and readers on future developments.

The investigations of companies have been one of the pillars of President Obama’s immigration policy.

When Obama recently spoke about addressing immigration reform in his second term, he said any measure should contain penalties for companies that purposely hire illegal immigrants. It’s not a new stand, but one he will likely highlight as his administration launches efforts to revamp the U.S. immigration system.

“Our goal is compliance and deterrence,” said Brad Bench, special agent in charge at ICE’s Seattle office. “The majority of the companies we do audits on end up with no fines at all, but again it’s part of the deterrence method. If companies know we’re out there, looking across the board, they’re more likely to bring themselves into compliance.”

While the administration has used those numbers to bolster their record on immigration enforcement, advocates say the audits have pushed workers further underground by causing mass layoffs and disrupted business practices. When the ICE audit letter arrived at Belco Forest Products, management wasn’t entirely surprised. Two nearby businesses in Shelton, a small timber town on a bay off Washington state’s Puget Sound, had already been investigated.

But the 2010 inquiry became a months-long process that cost the timber company experienced workers and money. It was fined $17,700 for technicalities on their record keeping. ”What I don’t like is the roll of the dice,” said Belco’s chief financial officer Tom Behrens. “Why do some companies get audited and some don’t? Either everyone gets audited or nobody does. Level the playing field.”

Belco was one of 339 companies fined in fiscal year 2011 and one of thousands audited that year. Employers are required to have their workers fill out an I-9 form that declares them authorized to work in the country. Currently, an employer needs only to verify that identifying documents look real. The audits, part of a $138 million worksite enforcement effort, rely on ICE officers scouring over payroll records to find names that don’t match Social Security numbers and other identification databases.

The audits “don’t make any sense before a legalization program,” said Daniel Costa, an immigration policy analyst at the Economic Policy Institute, a Washington, D.C., think tank. “You’re leaving the whole thing up to an employer’s eyesight and subjective judgment, that’s the failure of the law. There’s no verification at all. Then you have the government making a subjective judgment about subjective judgment.”

An AP review of audits that resulted in fines in fiscal year 2011 shows that the federal government is fining industries across the country reliant on manual labor and that historically have hired immigrants. The data provides a glimpse into the results of a process affecting thousands of companies and thousands of workers nationwide. Over the years, ICE has switched back-and-forth between making names of the companies fined public or not. Lately, ICE has emphasized its criminal investigations of managers, such as a Dunkin’ Donuts manager in Maine sentenced to home arrest for knowingly hiring illegal immigrants or a manager of an Illinois hiring firm who got 18 months in prison.

Many employers also wonder how ICE picks the companies it probes. ”Geography is not a factor. The size of the company is not a factor. And the industry it’s in is not a factor. We can audit any company anywhere of any size,” Bench said. He added ICE auditors follow leads from the public, other employers, employees and do perform some random audits.

But ICE auditors hit ethnic stores, restaurants, bakeries, manufacturing companies, construction, food packaging, janitorial services, catering, dairies and farms. The aviation branch of corporate giant GE, franchises of sandwich shop Subway and a subsidiary of food product company Heinz were among some of the companies with national name recognition. GE was fined $2,000.

In fiscal year 2011, the most recent year reviewed by AP, the median fine was $11,000. The state with the most workplaces fined was Texas with 63, followed by New Jersey with 37. The lowest fine was $90 to a Massachusetts fishing company. The highest fine was $394,944 to an employment agency in Minneapolis, according to the data released to AP through a public records request.

A Subway spokesman said the company advises franchise owners to follow the law. A Heinz spokesman declined comment. Bench didn’t have specifics on what percentage of fines come from companies having illegal immigrants on their payroll, as opposed to technical paperwork fines in recent years.

Julie Wood, a former deputy director at ICE who now runs a consulting firm, said she’d like to see the burden of proving the legality of a company’s workforce go from the employer to the government. She’d like to see a type of program, such as E-Verify, be implemented with the I-9 employment form.

Read more on USA Today website.

As our readers recall, this bill failed in the Republican-control House of Representatives earlier this session when brought up under a congressional procedure that requires two-thirds majority support. This time around, the bill is set to be brought up under regular order and likely win the majority vote needed to clear the lower chamber.

The House is expected to consider a revised version of Smith’s bill that includes a new provision that would allow spouses and minor children of legal permanent residents to come to the U.S. to wait for their green cards, but they will not receive authorization to work, reported to The Hill by an industry source. The STEM Jobs Act proposes to reallocate 55,000 green cards to foreign-born graduates with advanced science, math, tech and engineering (STEM) degrees from U.S. universities by eliminating the diversity visa program.

The measure has faced pushback from House Democrats and the Congressional Tri-Caucus because it would eliminate that visa program, which allocates green cards to people with low rates of immigration to the U.S. via a random selection process. Immigrants from African nations have come to the U.S. through this program.

Boosting the number of green cards available to foreign-born engineers and technical graduates has long been a major priority for tech companies.

The bill, if passed, would make Illinois only the fourth state where illegal immigrants are able to get driver licenses. So far Washington, New Mexico and Utah are the only states where illegal immigrants can get driver’s licenses. Current Illinois law prevents the DMV from issuing licenses to illegal immigrants. This becomes a safety issue as these undocumented immigrants drive without license, insurance and road safety tests.

According to the Illinois Highway Safety Coalition (HSC), unlicensed and uninsured drivers are involved in almost 80,000 accidents in Illinois each year, causing $660 million in damage. Unlicensed immigrant drivers cost $64 million in damage claims alone. These drivers pose an enormous safety risk for all Illinois drivers, leading to higher insurance premiums for everybody. Top state leaders believe that this risk can be prevented.

Approximately 250,000 immigrants drive without licenses in Illinois, according to the Highway Safety Coalition, a group of law enforcement and labor officials supporting the bill. The group says that if only half of these 250,000 unlicensed immigrants become properly licensed and insured, Illinois insurance policy holders would save about $46 million in premium payments every year.

Illegal immigrants are currently prohibited under the state law from obtaining a driver’s license. Studies have demonstrated that immigrants who can drive legally are more likely to work and consequently contribute to the economy. Being able to get a driver’s license gives these individuals greater access to job opportunities and contribute to business activity.

]]> http://www.immi-usa.com/immigration-news/illegal-immigrants-may-get-drivers-licenses-in-illinois-soon/feed/ 0 http://www.immi-usa.com/immigration-news/december-2012-visa-bulletin-no-movement-in-eb-2-india/ http://www.immi-usa.com/immigration-news/december-2012-visa-bulletin-no-movement-in-eb-2-india/#comments Wed, 21 Nov 2012 15:22:37 +0000 Shilpa Malik http://www.immi-usa.com/?p=929 Continue reading →]]> December 2012 Visa Bulletin has been released by the U.S. State Department and it shows no movement in EB-2 India Priority Date. There is also the possibility of a cutoff date for EB-5 China in upcoming months.   Several skilled professionals were eagerly awaiting this Visa Bulletin in hopes that EB-2 India priority dates will finally start moving forward. However it appears that EB-2 India may not show much (or any) forward movement during the first couple of months of 2013. Here are the key takeaways from the December 2012 Visa Bulletin:

• EB-1 is current for all the countries and is expected to remain current in upcoming months.
• EB-2 is current for every country except India and China. EB-2 India continues to be severely retrogressed at September 1, 2004. EB-2 China advances by 7 weeks to October 22, 2007. According to the DOS, EB2 India priority date  is not expected to advance in upcoming months.
• EB-3 priority date advances by 1 month for Mexico and Rest of World to November 22, 2006.  EB-3 priority date for Philippines advances by 1 week to August 15, 2006, EB-3 China  date advances by 10 weeks to July 1, 2006. However EB-3 India  priority date advances by only 1 week to November 1, 2002.

The December 2012 Visa Bulletin is obviously disappointing for individuals in EB2 India category but it is not so surprising. The slow movement is consistent with predictions made by DOS, and any major change is unlikely in upcoming months. Priority date movements and predictions will be regularly posted here for our readers.

Right after U.S. Citizenship and Immigration Services (USCIS) started accepting application in mid-August from eligible DREAMers, there was a big rush to send in applications. Based on the Pew Hispanic Center estimates, up to 1.7 million of the 4.4 million undocumented immigrants under 30 may qualify for the deferred action benefit.

However, the number of applications dropped in September and October. Top Immigration lawyers have noted that the fear of a Mitt Romney presidency is the leading reason for this drop in the number of applications. DREAMers were uncertain over the program’s future after the election including the possibility of Obama policy reversal by a Romney administration. Now, that President Obama has won the election, the number of applications is starting to rise again.

According to the USCIS report, 308,935 undocumented immigrants (18 percent of the estimated DREAMers population) had applied for the program. So far, more than 53,000 Dreamers have been approved for deferred action and an additional 124,572 applications are in the final stages of review. It should be noted that this program is temporary and is available to only those who meet all the Deferred Action requirements, such as attending or graduating from high school. After the election, comprehensive immigration reform seems to have become a top priority for both Democratic and Republican parties, giving new hope to eligible undocumented immigrants.

WASHINGTON — Democratic opposition on Thursday led to the defeat of a House Republican bill that would have granted more visas to foreign science and technology students but would have eliminated another visa program that is available for less-educated foreigners, many from Africa.

Democrats, including members of the black and Hispanic caucuses, voiced support for allowing more talented foreign students to stay and work in the United States. But they objected to doing that at the expense of others seeking residence in the country.

The bill would have given up to 55,000 green cards a year to doctoral and masters graduates with degrees in science, technology, engineering and mathematics, known as STEM fields. It would have eliminated the Diversity Visa Lottery Program that makes visas available to those from countries with low rates of immigration.

“We must start to take advantage of our status as a destination for the world’s best and brightest,” said House Majority Leader Eric Cantor, R-Va.

The STEM Jobs Act had the strong support of U.S. high-tech companies who have been frustrated by watching highly trained foreign students leave the country and work for non-American competitors because they are unable to obtain permanent residence visas.

The House Judiciary Committee said foreign students now receive nearly 4 out of every 10 master’s degrees awarded in STEM fields, but that only 5 percent of immigrants are selected based on their skills and education. “This bill makes our immigration system smarter by admitting those who have the education and skills America needs,” said committee chairman Lamar Smith, R-Texas.

Those seeking a green card under the bill would have to have received a doctorate or masters degree from an eligible U.S. university in computer science, engineering, math or the physical sciences other than biological sciences. The applicants would also have to agree to work for at least five years for the employer petitioning on his or her behalf. The company must also show there are no qualified Americans for the job.

Democrats said there was a real need to grant more STEM visas but accused Republicans of offering a partisan bill that would make them look more immigration-friendly before the election.

“It pains me greatly that I cannot support this bill,” said Rep. Zoe Lofgren, D-Calif., whose district in northern California includes high-tech companies and who has been a leading advocate for more STEM visas. “Although this bill ostensibly seeks to increase STEM visas, it appears to have another, in my opinion, more sinister purpose, to reduce legal immigrant levels.”

The black, Hispanic and Asian-Pacific American caucuses put out a joint statement opposing the bill because of its elimination of the Diversity Visa program. In recent years about half the visas granted under that program have gone to residents of African nations. “It appears Republicans are only willing to increase legal immigration for immigrants they want by eliminating legal immigration for immigrants they don’t want,” the caucuses said in their letter.

Smith said the program has invited fraud and poses a security risk from terrorists seeking entry into the country.

The Republican majority brought up the bill under a procedure that limits debate and doesn’t allow amendments but requires a two-thirds majority for passage. The vote was 257-158, 20 votes short of what was needed.

Democrats expressed hope that Congress, which leaves on Friday and won’t be back until after the election, would still be able to reach a consensus on a STEM visa bill this year.

Sen. Chuck Schumer, D-N.Y., who unsuccessfully tried to negotiate a compromise bill with Smith, on Tuesday introduced his own bill that would increase STEM visas without reducing visas provided for other programs.

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