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H1B Cap/Quota for 2013-2014 season has been reached on April 5 2013. USCIS announced today that it has received more petitions than allowed under statutory quota for Fiscal Year (FY) 2014. It was also announced that more than 20,000 petitions have been received by USCIS from those holding US Masters degree in qualifying fields (advanced degree exemption).

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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The USCIS has started accepting H1B visa applications for 2013-2014 cap season on April 1, 2013. Due to stronger economy, the demand for H1B visas is much higher this year compared to the last 2-3 H1B cap seasons. USCIS will monitor the number of petitions received and post the latest cap count on its official website. The date on which the the H-1B cap is met is known as the final receipt date. While USCIS has not released an official count yet, there is a possibility that it may receive more petitions than what 2014 H1B cap allows within first week. If that happens, USCIS will use a lottery system to randomly select the number of petitions sufficient to fill up the 2014 H1B cap. It will reject any cap-subject petitions that are not selected in the lottery.

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.

USCIS will begin accepting H-1B Visa applications for FY 2013-2014 cap subject petitions beginning April 1, 2013. The USCIS anticipates that the H1B annual quota (cap) for fiscal year 2014 (FY 2013-14) could be finished by April 5, 2013.

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.

A proposal to allow spouses of certain H-1B visa holders to apply for EAD is pending review at the Office of Management and Budget (OMB). This proposed change would enable H-4 spouses to legally work in the U.S. while the H-1B spouse, meeting certain criteria, waits for his or her adjustment of status application to be adjudicated.

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.

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USA Today: U.S. Immigration and Customs Enforcement reached its highest number yet of companies audited for illegal immigrants on payrolls this past fiscal year. Audits of employer forms increased from 250 in fiscal year 2007 to more than 3,000 in 2012. From fiscal years 2009 to 2012, the total amount of fines grew to nearly $13 million from $1 million. The number of company managers arrested has increased to 238, according to data provided by ICE.

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.

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The STEM Jobs Act bill from Congressman Lamar Smith (R-Texas) aimed at boosting the number of green cards available to foreign graduates with advanced technical degrees from U.S. universities is expected to be voted on again in the House next Friday, according to a news report on The Hill.

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.

According to the latest news report on Illinois government website, key leaders and top officials are pushing for a bill granting driver’s licenses to undocumented immigrants. Illinois Governor Pat Quinn and Senate President John Cullerton (D-Chicago) have now received the support of the state and local leaders as well as the Illinois Highway Safety Coalition (HSC) in their efforts to ensure that all Illinois motorists are properly licensed to drive.

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.

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.

By Washington Post

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.
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