H-1B Cap Reached

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Cap Reached: H-1B Visas Available April 1, 2017

H1b 2016

The H-1B cap has been reached. April 7 was the fifth business day of April and that was the final day to submit a cap-subject H-1B petition for a position that starts on October 1, 2016. The reason that petitions are only accepted for the first five days of April is that there is a limit of 65,000 cap-subject H-1B visas issued per year (plus 20,000 for beneficiaries with US Masters in jobs that require Masters). There is a lottery in effect because over 65,000 and 20,000 petitions are received. Last year around 233,000 petitions were submitted by businesses (mostly).

An H-1B petition can be submitted 6 months prior to the starting date. October 1 is the first day of the new fiscal year, which refreshes the number of H-1Bs available. In the late 1990s and early 2000s, the H-1B cap was much higher than 65,000 (up to 195,000), but it has remained at 65,000 for over a decade. Proposed legislation has sought to increase that number, but movement has not been made. The 1990 IMMACT bill created the H-1B visa. Certain exemptions are made for H-1B petitions to avoid the cap and the lottery. A cap-exempt H-1B visa can be filed at any time during the year.

Visa Waiver Program Requires e-Passport

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VWP Announcement: e-Passports

Department of Homeland Security Secretary Jeh Johnson announced that visitors coming to the United States through the Visa Waiver Program must have an e-passport. If they do not have an e-passport, they will be required to obtain the proper visa to travel to the United States. The e-Passport contains an electronic chip, storing the individual’s name, date of birth, and general biographic information. The purpose of this mandate is to strengthen border security for the United States and also to protect individual travelers from identity theft.

The Visa Waiver Program applies to individuals from 38 countries that have low incidence rates of visa fraud. Instead of having to apply for and obtaining B-1/2 visas, individuals can apply for 90 days of visitation to the US through ESTA. The Visa Waiver Program has been under heavy scrutiny in the past few months, as legislators fear that it allows easy access to the United States for dangerous individuals. Legislation was passed in December 2015 to strengthen safeguards to the program.

National Day of Action

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National Day of Action: Immigration Advocates Head to DC

Resources for Immigrants

Friday April 7 is the National Day of Action for immigration. Immigration lawyers, activists, advocates, and immigrants descend upon Washington DC and Capitol Hill to vocalize their concerns with the immigration system. Last year’s Day of Action occurred on May 19, which was the day that President Obama’s Executive Actions – DAPA and new DACA – were supposed to begin. They have not yet taken effect. A federal judge in Texas struck them down for abrogating the Administrative Procedures Act and the Court of Appeals for the Fifth Circuit upheld that decision. The Supreme Court is expected to make its decision in June of this year.

The National Day of Action is not limited to one piece of the immigration system. Advocates will be championing other aspects of immigration reform, such as changing the H-1B cap, increasing entrepreneurial opportunities, and giving migrants fleeing persecution access to counsel and a chance to have their cases heard.

The main motivation of the National Day of Action is to exhort members of Congress to understand facts about immigration, how it benefits the United States, and demonstrate that immigration reform is desired by the country at large. A booklet distributed by the American Immigration Lawyers Association highlights important facts about immigration in the United States.

Immigrants have created businesses and generated business income in their states. California, Texas, Florida, and Ohio are four states in which a combined 1.3 million immigrants started businesses and generated over 58 million dollars in business income. Immigrant-owned small businesses employ 4.7 million people. Legalization of undocumented immigrants would have a significant impact on the tax revenue, to which undocumented migrants contribute to (state and local taxes) already.

The National Day of Action urges reform in all aspects of immigration: humanitarian, family, and business. Immigration reform has been oft-discussed but not enacted. AILA is touting the election year as an impetus to change.

Employee Portability

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Section 204(j) Portability

Section 204(j) provides that an approved Form I-140 petition for certain classifications remains valid for adjustment of status when an applicant switches jobs or employers if:

  • The adjustment of status application has been filed and remains unadjudicated for 180 days or more, based on an employment-based immigrant visa petition AND
  • The new job is in the “same or a similar occupational classification” as the job for which the petition was filed.

 

A new policy memorandum has been issued to assist immigration officers in determining what qualifies as a same or a similar occupational classification and which evidence should be used in making that determination. They are instructed to examine the job duties of the former and new job and skills, experience, education, training, licenses, and certifications required. Wages can also be important. The policy memorandum also repeats that a preponderance of the evidence standard is to be utilized.

Immigration officers are supposed to treat evidence favorably if the applicant establishes that the previous and new job are within the same broad occupation code in determining whether the two positions are similar. The memo gives the example of Computer Programmers, Software Developers Applications, Software Developers Systems Software, and Web Developers being found within the same broad occupational group of Software Developers and Programmers. It also gives warning: just establishing that the two jobs are described within the same broad occupation may not be enough for the two jobs to be in similar classifications for a preponderance of the evidence.

Of note, the memo dedicates analysis to career progression. It continues the analysis under the totality of the circumstances and preponderance of the evidence guidance. The analysis may be more straightforward when the promotion is to a more senior position that does not involve managerial or supervisory duties. The analysis becomes complicated when that transition is to a position that involves a managerial or supervisory role.

For that second scenario, the memo instructs that if the applicant establishes in the new job that she will be “primarily responsible for managing the same or similar functions of their original jobs or the work of individuals whose jobs are in the same or similar occupational classification(s) as the applicants’ original positions, the immigration officer can treat that evidence in the applicant’s favor for determining similar occupational classifications. The example used is a cook advancing to a food service manager. A food service manager supervises restaurant cooks and other individuals in similar positions.

There may also be situations where a normal career progression does not involve managing persons in jobs that in the same or similar occupational classification as the applicant’s original position. The example used is a cook that becomes a food service manager, while retaining many of the original job duties. That position may be devoid of supervisory duties, but the applicant would be able to demonstrate similar occupational classifications based on functions.

The memorandum is lengthy and detailed, delving into many scenarios that immigration officers encounter as they adjudicated portability petitions. Portability is an important provision of the AC21 law enacted in 2000. The express purpose of that law was to increase job flexibility for foreign workers who are stuck in delays and backlogs in the employment-based immigrant visa process.