The time for filing H-1B lottery subject applications is approaching. The first five weekdays of April is when USCIS is accepting H-1B applications for the lottery. It will play the lottery shortly after that and begin issuing receipt notices and rejections for the lottery. There is a limited cap of 65,000 plus an addition 20,000 reserved for US Master’s.

If you are considering filing an H-1B application for a foreign national in a specialty occupation (a requirement of the H-1B visa), now is the time to act. An H-1B petition can be cap-exempt, meaning not subject to the lottery, if there are certain approved affiliations or if the employee in question has already been accepted under the cap. Otherwise, the petition is subject to the cap and must be filed in two weeks. The beneficiaries of accepted and approved H-1B applications will be able to work in H-1B status on October 1, 2016, the first day of the fiscal year.

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The Houston Chronicle published an article on H-1B visas, angling with the usual focus on Silicon Valley but also adding a focus on Houston. It notes that Houston is a city with many businesses relying on the H-1B visa, which allows skilled foreign national workers to work in the United States with a sponsoring employer for a maximum of two 3 year periods.

The article’s focus (outside the geographic locations) is on the number available. It recites the history of the H-1B visa: Congress set a cap of 65,000 in 1990 and added 20,000 visas with a specific Master’s and above category in the United States. There is an unfortunate conflation with the H-1B visa as the sole work visa program, as there are plenty of other employment-based visas in the United States: E, L, O, P. Regardless, the article’s concentration on the H-1B visa situation highlights the geographic and wider country limits on the visa and how certain employers are lobbying for more availability. The cap has not always remained stagnant. There was a period of increasing availability that ended in 2004. (the article omits this).

The practical implications of the low supply of H-1B visas versus the high demand is that applicants are subject to a lottery. Rather than being adjudicated on the merits, the application must first be selected to be adjudicated. Last year, there were 250,000 applications vying for adjudication. All H-1B visa applications must be submitted within a specific timeframe and the visa, if approved, begins on October 1. There are exceptions, as there are certain H-1B visas that are “cap-exempt.”

The post H-1B Visa Article appeared first on Wood Immigration Law.

USCIS announced that it has received a record number of H-1B applications for Fiscal Year 2016. Over 233,000 applications were filed by employers petitioning for prospective foreign national employees. Some of those prospective employees are actually already in the employ of their companies, but they need the H-1B to continue their work authorization. There is a 65,000 cap on H-1B visas, plus an additional 20,000 visas that are reserved for individuals with Master’s degrees from a United States institution of higher learning. For example, an engineer with a Master’s degree from Carnegie Mellon University would be placed in the Master’s lottery first, whereas an engineer with a Bachelor’s degree from the University of Pittsburgh would be subject to the 65,000 cap.

USCIS conducted the lottery yesterday. This means that nearly 150,000 visa applicants will be rejected without consideration.

The H-1B visa is a critical aspect of our immigration employment system. To obtain a visa, the occupation in question must be a specialty occupation, and it must require a college degree or the equivalent thereof to perform the duties of the occupation. It also requires an employer to be the petitioner and pay fees that the employer would not have to pay for an American worker. They are highly sought out because they afford up to six years of status, as well as an opportunity for a Green Card.

H-1B applications are filed in the first week of April in anticipation of the beginning of the Fiscal Year in October. Employers and prospective H-1B employees nervously wait for whether they are selected in the lottery for about a month, as notices will begin going out in the middle of May.

There is a 36% of being selected for the lottery. Technology and immigration groups clamor year after year for improvements to the H-1B visa, especially in terms of raising the cap. Their champions in Congress push for bills like Innovation Squared, but they rarely make it out of committee. H-1B opposition emanates from the fear that foreign nationals are snatching American jobs from American citizens and permanent residents. The rebuttal often cited by H-1B proponents is that the economy is dynamic and H-1B jobs are “job-creating.”

USCIS will continue to accept H-1B applications for the following purposes:

• Extend the amount of time for an H-1B worker (6 years is generally max, except for I-140 filed or pending)
• Change the terms of employment for current H-1B workers (transferring areas)
• Allows current H-1B workers to change employers
• Allows current H-1B workers to work concurrently in a second H-1B position
• Statutorily cap-exempt employers (universities, university-affiliated)

The post Record Number of H-1Bs appeared first on Wood Immigration Law.

       If applications were filed like they were last year, Vermont and California Service Centers have received around 200,000 H-1B visa applications this past week. Because only 65,000 (+20,000 for U.S. Master’s Degrees) visas are available, the applications are spun in a lottery and the ones that win the “lottery” are processed. The others are returned.

The reason that April 1-7 is the period applications are sent is because they must be filed within 6 months of the start of the fiscal year, which is October 1. October 1 cannot be requested with a February filing. All of the visa spots are taken if filed in July (in most years). A congressional bill has been posed twice to expand H-1B visas by need, but it has been an idea more than a legislative possibility. The number of H-1B visas available used to fluctuate and expand, but it has been consistently on the lower end for nearly a decade.

H-1B season does not have to be over for you. If you hold a Bachelor’s degree (or higher) in a specialty occupation, there are still opportunities for the H-1B visa. Some employers are cap-exempt, meaning that their applications for H-1B visas are not subject to the 65,000 or 20,000 limit. These employers are either universities or have an affiliation with universities such that the majority of work is furthering the purpose of that institution. That exception does not apply, for example, to a construction company that is building on a university. The scholastic purpose needs to be more apparent.

If you hold an H-1B visa, transfers and extensions can be executed without worrying about the cap. Once an individual has made it under the cap, she is able to transfer and request an extension without being subject to the cap. The H-1B can be utilized for six years; it can then be restarted by going overseas for a year continuously.

There are options outside the H-1B for employment visas, but judging by the competition for a limited number of slots, it is the most coveted. It also has the advantage of “dual intent.” Even though it is a non-immigrant visa, a visa holder may apply for Permanent Residence with the proper sponsorship.

UPDATE: President Leslie Holman of the American Immigration Lawyers Association responded to the news of a lottery, bemoaning the insufficient number of visas available.

The post H-1B Cap Season Ends appeared first on Wood Immigration Law.

The National Foundation of American Policy reported last week that the denial rate for L-1B petitions has reached a historic high of 35% for Fiscal Year 2014. This is an increase from 30% in FY 2012 and 34% in Fiscal Year 2013. While those numbers seem consistent, 35% is a stark contrast from the 6% denial rate from FY 2006.

The L-1B visa is an opportunity for multinational companies to transfer high-skilled employees from their overseas locations to the United States. There are certain requirements that must be met. The employee (1) must have been employed for a qualifying organization abroad for one continuous year in the past three years and (2) be seeking to perform a specialized knowledge position with the qualifying organization in the United States. The employer (1) must have the requisite relationship with the foreign company and (2) be engaged in or it must engage in business as a US employer with another country through the qualifying organization. The visa is an important tool for companies that are seeking US locations and would like to fortify their US operations with institutional knowledge.

The report contains some shocking statistics. 56% of employees transferring from India were denied between 2012-2014, more than four times the denial rate of 13% for employees from other countries in that time period. Nationals from other countries were also above that 13% rate, but Canadians only had a 4% denial. The increase in denials is especially consternating because there has not been a change in the L-1B regulations.

The White House announced that a guidance memo on L-1B visas will be released this week. L-1B guidance has been mentioned for years and was part of the executive actions announced in November. The guidance memo was released on March 24, 2015.

The Law Offices of Andrew Wood is committed to facilitating job-creating companies and employers who are growing the US economy. L-1 visas are an important aspect of that. In a global economy, we recognize that companies need employment visas to compete globally. Employment-based green cards are notoriously difficult, making non-immigrant visas the practical option. Given that L-1 and H-1B non-immigrant visas are the two practical means that companies have for retaining international nonimmigrant employees, guidance will be timely.

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The National Basketball Association (NBA) is paying homage to its Latin players and fans with its ninth annual Latin Nights program. The celebration is a league-wide event, best displayed by certain teams that change their jerseys into semi-Spanish. For example, Los Lakers, Los Spurs, Los Suns, El Heart, Los Bulls (though you wonder why they are not Los Toros and the Suns are not Los Soles). Special uniforms are made for the games in which those jerseys are used and they are popular sellers. The teams are specifically chosen for cities with large Spanish-speaking populations, such as Houston, San Antonio, Los Angeles, Washington DC, Miami, and Phoenix.

Cultivation of A Tradition

This is a tremendous tradition that the NBA has cultivated and a true acknowledgment to basketball’s global power and the NBA’s attraction to immigrant players. At the beginning of the 2014-2015 season, the league boasted a record 101 international players from 37 different countries. The NBA Champion San Antonio Spurs have nine international players by themselves and have embodied the spirit of teamwork that basketball promotes through their unselfish play. There were only 45 international players just fifteen years ago in 2000 and 21 in 1990.

Two reasons for the increase in international players is the fall of Communism in Eastern Europe and the success of the USA Men’s “Dream Team” in 1992 as American Ambassadors. Soccer may be the global game, but basketball is not far behind it, as the NBA is available to watch all over the world and international players have increased the attention that international fans pay to the game. Even in the United States, the fact that the NBA visibly celebrates its Latino fans with jerseys and some Spanish through special Latin Nights is a testament to the NBA’s loyal immigrant fan-base and Latin heritage.

The post (Inter)National Basketball appeared first on Wood Immigration Law.

The Immigration Innovation (I Squared) Act of 2015 is a bipartisan proposal by the US Senate to encourage the influx and retention of “high-skilled” talent and labor in the United States. The focus of the bill is the H-1B visa, which is for foreigners with a job opportunity, in a specialty profession that requires a bachelor’s degree. The other requirements are that the employer will pay the foreign employee at the prevailing wage or actual wage and that the hiring of the employee will not adversely affect the working conditions for US workers. To obtain an H-1B visa is an entire process for the employer (labor condition agreement, attestations, expenses), and although some employers fall into H-1B dependency, some of the most powerful and wealthy companies (also, small and medium-sized businesses) have clamored for H-1B visa reform for years and years as part of necessary immigration reform to keep American globally competitive. The H-1B visa can be used for a variety of professions – medicine, accountant, engineer – but it seems that its preponderance is located in computer-based professions.

I Squared has specific proposals that please the advocates of H-1B reforms. They are (not exclusively):

• Increasing the cap of visas from 65,000 to 115,000;
• Eliminating the 20,000 Master’s Degree or higher exempt visas;
• Employment Authorization for H-4 spouse visa holders (H-4 visas are for dependents and the recent executive actions intimate at work authorization for H-4 holders);
• Exempting dependents of employment-based immigrant visa recipients, U.S. STEM advanced degree holders, persons with extraordinary ability, and outstanding professors and researchers from the employment-based green card cap;
• Removing the annual per-country limits for employment-based visas;
• Instituting a grant program to promote STEM education and US worker retraining

An important aspect of increasing the visa cap to 115,000 is that number represents the floor on the number of visas to be issued for the fiscal year. That number can elevate to 195,000 depending on demand for that particular year.

Even if this bill were to become a law in short order, its provisions would not apply to the current round of H-1B applications. H-1B applications need to be sent out by March 31 for the April 1 filing date to be considered for October 1, when the fiscal year begins. As the cap is usually reached that first week in October, timing is crucial. The consistent and excessive demand for H-1B visas proves that reform in this category is necessary. Although it seems to have the appearance of bipartisan support, the legislative and political process will still have their say. Senator Orrin Hatch proposed a similar bill in 2013 (with the possibility of a 300,000 visa cap) that did not flourish into a bill. Regardless, we remain hopeful that the H-1B visa system and employment-based immigration will be improved in short order.

The post I Squared: More H-1B Visas appeared first on Wood Immigration Law.

The Office of Foreign Labor Certification released statistics for the first quarter of the 2015 Fiscal Year (starting October 1) on the whole range of employment based certification for foreign workers. A function of the Department of Labor, the FLC is tasked with certifying the H-1B visa labor conditions and permanent employment labor certifications.

The statistics for the first three months of the fiscal year reveal that over 80,000 H-1B applications were received, the overwhelming majority of which are in the computers realm – Computer Systems Analysts, Software Developers, Programmers, and other Computer Occupations dominate the list of certified positions. There is also nothing surprising about the states leading the way in H-1B applications: California, Texas, and New York are the top three states. Pennsylvania is eighth. Also revealing is that 176,259 positions were requested for certification and over 95% of those requests were certified. H1-B season picks up in full force over the next few months, as applications received on April 1 can be processed for October 1 starting dates (new fiscal year, when the cap of 65,000 + 20,000 starts fresh).

The Department of Labor is involved in the immigration and visitation of foreign workers for two important reasons. The first is to protect qualified American workers from losing jobs to foreign workers. The second is to ensure that the foreign workers are paid at the prevailing or actual wage, to guard against wage depression for American workers and protect foreign workers from being underpaid. The employer must make a prevailing wage determination and attest to paying the foreign worker at or above that wage in the labor condition agreement, which must be certified by the Department of Labor before the H-1B visa petition can be filed.

The post H-1B Visa 2015 Statistics appeared first on Wood Immigration Law.

State of the Union 

“Yes, passions still fly on immigration, but surely we can all see something of ourselves in the striving young student, and agree that no one benefits when a hardworking mom is taken from her child, and that it’s possible to shape a law that upholds our tradition as a nation of laws and a nation of immigrants.” – Barack Obama, January 20, 2015

The word ‘immigration’ was only uttered twice Tuesday night in President Barack Obama’s seventh State of the Union speech, but the immigration motif was prevalent throughout the address.

The president made quick mention of the inherent unfairness of breaking apart families to remove a low-enforcement priority mother from her US citizen children. That is the basis of DAPA (Deferred Action for Parental Arrivals). The guiding light of American immigration policy is family reunification. Dismantling families would run contrary to that. DAPA is receiving most of the attention from Obama’s November 20, 2014 Immigration speech, in which he announced a series of executive orders to make incremental improvements to the immigration system in the face of congressional paralysis, especially in 2007 and 2013-2014. The “hardworking mom” mentioned during the speech would be someone that DAPA would protect temporarily, for the sake of keeping families intact.

The president dedicated much of his speech to trumpeting the job creation, research & development, innovation, and overall economic improvement of the United States in recent years. Underlying these important markers is immigration. American businesses rely on non-immigrant and immigrant visas to succeed. There are currently 140,000 Emplyoment-Based visas available per year and the H-1B visa system has been criticized for years by American businesses, some politicians, and immigration advocates as being damagingly low. The president has vowed to make improvements throughout the immigration architecture. He has declared his intention to modernize the employment process for immigration. We eagerly anticipate these reforms, as they will be in the best interests of our country, our fellow citizens, and immigrants.

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