NYC Immigration Law Firm » H-1B

FY 2011 H-1B Petitions Must be Submitted with an Approved Labor Condition Application

Thaker Berowitz LLP — Thu, 11 Mar 2010 16:56:27 +0000

On March 10, 2010, U.S. Citizenship and Immigration Services (USCIS) announced that it will not extend the period in which it temporarily accepted H-1B petitions filed with uncertified Labor Condition Applications (LCAs).

Due to processing delays associated with Department of Labor’s (DOL) “iCERT” system, USCIS responded to requests from the public and temporarily allowed H-1B petitions to be filed with uncertified LCAs. This temporary measure went into effect on November 5, 2009 and expired on March 9, 2010.

As of March 10, 2010, USCIS will reject any H-1B petition filed without an LCA certified by DOL.

USCIS to Accept H-1B Petitions for Fiscal Year 2011 Beginning April 1, 2010

Thaker Berowitz LLP — Tue, 09 Mar 2010 15:31:39 +0000

U.S. Citizenship and Immigration Services (USCIS) has announced that it will begin accepting H-1B petitions subject to the fiscal year (FY) 2011 cap on April 1, 2010. Cases will be considered accepted on the date that USCIS takes possession of a properly filed petition with the correct fee; not the date that the petition is postmarked.

The fiscal year cap (numerical limitation on H-1B petitions) for FY 2011 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master’s degree or higher are exempt from the H-1B cap.

USCIS will monitor the number of petitions received and will notify the public of the date on which USCIS received the necessary number of petitions to meet the H-1B cap. If needed, USCIS will randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as well as those received after the final receipt date.

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations. Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until Dec. 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories seeking work dates starting in FY 2010 or 2011.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

(1) extend the amount of time a current H-1B worker may remain in the United States;
(2) change the terms of employment for current H-1B workers;
(3) allow current H-1B workers to change employers; or
(4) allow current H-1B workers to work concurrently in a second H-1B position.

H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions to avoid delays in processing and possible requests for evidence. USCIS has developed detailed information, including a processing worksheet, to assist in the completion and submission of a FY2011 H-1B petition, which can be found on the USCIS’ website.

FY2010 H-1B Cap Has Been Reached

Thaker Berowitz LLP — Tue, 22 Dec 2009 19:21:23 +0000

As of December 21, 2009, USCIS has received sufficient petitions to reach the statutory cap for FY2010. USCIS has also received more than 20,000 H-1B petitions on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY2010 that are received after December 21, 2009 USCIS will apply a computer-generated random selection process to all petitions that are subject to the cap and were received on December 21, 2009.

Source: USCIS

H-1B Enforcement to be Strenghtened

Thaker Berowitz LLP — Tue, 22 Dec 2009 16:05:20 +0000

The U.S. Citizenship and Immigration Services (“USCIS”) is planning to step up its effort to conduct on-site inspections of H-1B visa employers to see whether employers that have sponsored workers for an H-1B visa are complying with the terms or are in violation of them.

The USCIS plans to conduct 25,000 on-site inspections in 2010. The immigration agency moved to boost enforcement of H-1B laws after an internal study released about a year ago disclosed widespread violations of H-1B rules by employers. The study found that one in five visa involved either fraud or “technical violations.”

FY 2010 H-1B Cap Count Update

Thaker Berowitz LLP — Fri, 18 Dec 2009 02:54:48 +0000

As of December 15, 2009, approximately 64,200 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H-1B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H-1B petitions filed on behalf of an alien with an advanced degree will now count toward the general H-1B cap of 65,000. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

Click here to learn more about H-1B visas and annual caps.

New Federalized Procedures for Obtaining Prevailing Wage Determination

Thaker Berowitz LLP — Thu, 17 Dec 2009 17:00:57 +0000

Effective January 1, 2010, the Office of Foreign Labor Certification (OFLC) National Prevailing Wage and Helpdesk Center (NPWHC) in Washington, DC, will receive and process prevailing wage determination (PWD) requests for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs.

On December 19, 2008, the Department published a Final Rule addressing the Labor Certification Process and Enforcement for Temporary Employment in Occupations Other Than Agriculture or Registered Nursing in the United States (H-2B Workers), and Other Technical Changes. The Final Rule implemented a federalized process for obtaining PWD requests for use in the H-2B temporary nonagricultural labor certification program directly from the Employment and Training Administration’s (ETA) appropriate National Processing Center (NPC)–which was designated as the Chicago NPC.

Furthermore, beginning on January 1, 2010, the Final Rule also federalized PWD for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, E-3 (Australia), and the permanent labor certification programs.

Requestors must submit PWD requests using the Application for Prevailing Wage Determination, Form ETA-9141.

Requestors must submit PWD requests to the NPWHC by U.S. Mail or comparable physical delivery service at the following address:

U.S. Department of Labor-ETA, National Prevailing Wage and Helpdesk Center
Attn: PWD Request
1341 G Street, NW
Suite 201
Washington, DC 20005-3142

The DOL is in the process of developing an electronic means for the submission of PWD requests. Until this process is completed, all PWD requests made on and after 1/1/2010 must be submitted via hard copy to the address provided above.

In summary, State Workforce Agencies (SWAs) and the Chicago NPC are to cease processing PWD requests Received on and After January 1, 2010. All PWD Requests on and after 1/1/2010 will be centralized and processed at the DOL Washington, D.C. office.

The one exception to this is PWD requests for the Commonwealth of the Northern Mariana
Islands (CNMI); the NPWHC will begin receiving and processing those effective November 28, 2009.

Source: 74 FR 63796 (Dec. 4, 2009)

H-1B Petitions Accepted Without Labor Condition Applications

Thaker Berowitz LLP — Mon, 16 Nov 2009 17:30:49 +0000

On November 5, 2009, the U.S. Citizenship and Immigration Services (“USCIS”) announced a temporary 120-day grace period where it will accept H-1B petitions filed without a Labor Conditions Application (“LCA”) that has been certified by the Department of Labor (“DOL”). Normally, a certified LCA must accompany an H-1B petition. However, since the DOL implement its new “iCERT” system, there have been delays in the processing and certification of LCAs. As such, to petitioning employers, USCIS will begin to accept H-1B petitions filed with uncertified LCAs for a 120-day period, commencing November 5, 2009 and through March 4, 2010.

Read the USCIS press release for more information.

H-1B Cap Count for FY 2010

Thaker Berowitz LLP — Wed, 04 Nov 2009 17:56:50 +0000

According to the USCIS’ latest count, as of October 30, 2009, approximately 53,800 H-1B cap-subject petitions had been filed. USCIS has approved sufficient H1-B petitions for aliens with advanced degrees to meet the exemption of 20,000 from the fiscal year 2010 cap. Any H1-B petitions filed on behalf of an alien with an advanced degree will now count toward the general H1-B cap of 65,000.