USCIS has just announced that as of December 21, 2009, they have received sufficient H1B visa petitions to meet the 65,000 general cap. Petitions received on December 21 will be subject to a random drawing and petitions received after December 21 will be rejected.
USCIS will continue to accept non-cap subject H1B petitions for FY 2010 start dates and will begin accepting FY 2011 petitions on April 1, 2010.
As of December 12, 2009, USCIS has received 62,900 H-1B Visa petitions and are only 2,100 away from hitting the 65,000 H1B Visa cap for FY2010. USCIS representatives have confirmed the uptick in applications and have indicated that the cap will be met very soon. USCIS also confirmed that there is weak demand for visas under the Chile (1,400) and Singapore (5,400) set asides. If USCIS feels these allocations will go unused, they may return these visas to the general H1B Visa pool. Regardless, it is unlikely the FY 2010 H1B Visa Cap will last beyond the end of 2009.
Current regulations provide for 65,000 H1B Visas to be made available for fiscal year 2010. Fiscal year 2010 or FY2010 covers the period of October 1, 2009 through September 30, 2010. There are exceptions such as the 20,000 visas reserved for Master’s degree holders but the majority of applicants will fall under the general 65,000 cap.
FY2010 has been much different than the past several years where a flood of applications were made in the initial filing period and every visa was allocated just weeks into the filing season. As of this posting, there are still several thousand H1B visas available. On November 27, 2009, the USCIS announced that 58,900 H1B have been filed, leaving just over 6,000 available. From October 25 to November 27, 6,100 applications were filed so if filings remain steady, we can expect the H1B cap to be met by the end of the year.
If you intend to file a H1B cap subject application, we recommend filing as soon as possible or you may have to wait until April 1, 2010 to file a FY2011 application.
In nearly every H-1B petition, the petitioner is required to pay a $500 anti-fraud fee. The Department of Homeland Security (DHS) is using the proceeds of these anti-fraud fees to investigate H-1B petitioners. DHS is contracting with private investigators to make surprise visits, though they may provide advance notice if they so desire, to H-1B work sites. These investigators are charged with verifying that the petitioning company is a real business entity operating as stated in the H-1B application and that the H-1B visa holder is a legitimate employee.
Therefore, it is imperative that each H-1B sponsor make sure that their filings are accurate. If any amendments need to be made to reflect material changes in an already approved H-1B petition, such as change in work location or changes in job duties, the employer must timely file an H-1B amendment to reflect such changes. Failure to take these duties responsibly can result in monetary penalties as well as criminal prosecution.
On February 17, 2009, President Obama signed the American Recovery and Reinvestment Act of 2009 containing the Sanders H-1B amendment. The Sander H-1B amendment prohibits the sponsoring of H-1B visas by organizations that received funding of through the Emergency Economic Stimulus Act of 2008 (TARP money) unless the organization complies with the requirements of H-1B dependent employers for the next two years.
H-1B dependent employers are defined as employers with:
1. 25 or fewer full time equivalent employees in the US and employ more than seven H-1B visa holders; or
2. 26-50 full time equivalent employees in the US and employ more than 12 H-1B visa holders; or
3. have more than 50 full time equivalent employees in the US and employ at least 15% of their workforce with H-1B visa holders.
H-1B dependent employers must make certain attestations with regard to US worker displacement, recruitment and hiring. The American Immigration Lawyers Assication (AILA) recently posted a press release stating that these attestation requirements “saddles TARP fund recipients with strict regulations for hiring foreign workers under the H-1B program that are so cumbersome as to amount to an out-and-out prohibition.”
Notwithstanding AILA’s position, this is actually good news for many prospecitve H-1B visa applicants who intend to file this April 2009 for FY2010. Last April, USCIS was overwhelmed with H-1B applications and the 65,000 H-1B Visa Cap was met in the very first week and tens of thousands of applications were rejected through a lottery system. If the Sanders amendment precents the large financial firms from applying as AILA as predicted, there will be many more available H-1B visas for applicants from smaller US companies.
Many H-1B visa holders are under the impression that there is a “grace period” following the conclusion of their stay in H-1B visa status. Most believe that if they are laid off, fired or otherwise terminated that they have 30, 60 or even 90 days to find a new H-1B sponsor or just to gather their things and leave the country. This is not the case.
If the H-1B visa status terminates because the I-94 expires and there is no application for extension or transfer, then the H-1B visa holder has a grace period of 10 days, if and only if an extra 10 days is granted by US Customs and Border Protection (CBP) when the H-1B visa holder enters the United States.
If the H-1B visa holder is fired or terminated then he or she is out of status immediately. In fact, the petitioning employer is required to notify USCIS of the date of termination. If the H-1B holder is not employed by the petitioning employer and has not filed an application to transfer the H-1B visa to another company then he or she is out of status and may be accruing unlawful presence. Matter of Lee, 11 I. & N. Dec. 601 (Reg. Comm. 1966). However, USCIS has some discretion pursuant to 8 CFR 214.1(c)(4) and may allow an application for H-1B visa transfer if filed within 30 days of termination.
H-1B visa transfers are governed by INA § 214(n) and allows an H-1B visa holder to “port” to a new employer if these four requirements are met:
1. The foreign national was lawfully admitted
2. the new petition is “nonfrivolous”
3. the new petition was filed before the date of expiration of period of authorized stay
4. subsequent to lawful admission, the foreign national has not been employed without authorization
“Port” or H-1B portability means that a H-1B holder may work for a new H-1B petitioner upon the filing of an application to transfer to the new employer so long as the four requirements are met. The H-1B holder may attempt to port, even 30 days after their previous H-1B employment was terminated relying on 8 CFR 214.1(c)(4), and work for the new H-1B visa employer upon filing the application. In this case the H-1B visa holder would be legally authorized to work for the new petitioning employer at least until the application is adjudicated. Should the transfer application be denied, the alien would be required to depart the US. If the application is successful, he or she may continue to work for the new employer for the duration of the new authorized stay as shown on the new I-94.