4/8/2011 – USCIS has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.
4/8/2011 – USCIS has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.
WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) announced that it will start accepting H-1B petitions subject to the fiscal year (FY) 2012 cap on April 1, 2011.
Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked.
U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers, and computer programmers, among others.
The cap (the numerical limit on H-1B petitions) for FY 2012 is 65,000.
The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master’s degrees or higher are exempt.
USCIS will monitor the number of H-1B petitions received and will notify the public of the date when the numerical limit of the H-1B cap has been met.
This date is known as the final receipt date. If USCIS receives more petitions than it can accept, it may on the final receipt date randomly select the number of petitions that will be considered for final inclusion within the cap.
USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap.
In addition to petitions filed on behalf of people with U.S. master’s degrees or higher, certain other petitions are exempt from the congressionally mandated cap.
Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at:
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 for beneficiaries who will start work during FY 2011 or 2012.
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap do not count towards the H-1B cap.
USCIS will continue to process petitions filed to:
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 posted on its website detailed information, including a processing worksheet, to assist in the completion and submission of a FY2012 H-1B petition.
Released: March 16, 2011 on uscis.gov.
WASHINGTON— U.S. Citizenship and Immigration Services (USCIS) announced today, in response to recent stakeholder feedback, that it is currently reviewing its policy on H-1B cap exemptions for non-profit entities that are related to or affiliated with an institution of higher education.
Until further guidance is issued, USCIS is temporarily applying interim procedures to H-1B non-profit entity petitions filed with the agency seeking an exemption from the statutory H-1B numerical cap based on an affiliation with or relation to an institution of higher education.
Effective immediately, during this interim period USCIS will give deference to prior determinations made since June 6, 2006, that a non-profit entity is related to or affiliated with an institution of higher education – absent any significant change in circumstances or clear error in the prior adjudication – and, therefore, exempt from the H-1B statutory cap.
However, the burden remains on the petitioner to show that its organization previously received approvals of its request for H-1B cap exemption as a non-profit entity that is related to or affiliated with an institution of higher education.
Petitioners may satisfy this burden by providing USCIS with evidence such as a copy of the previously approved cap-exempt petition (i.e. Form I-129 and pertinent attachments) and the previously issued applicable I-797 approval notice issued by USCIS since June 6, 2006, and any documentation that was submitted in support of the claimed cap exemption.
Furthermore, USCIS suggests that petitioners include a statement attesting that their organization was approved as cap-exempt since June 6, 2006.
USCIS emphasizes that these measures will only remain in place on an interim basis.
USCIS will engage the public on any forthcoming guidance.
The H-1B is a nonimmigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations.
Unless determined to be exempt, H-1B petitions are subject to either the 65,000 statutory cap or the 20,000 statutory visa cap exemption.
By statute, H-1B visas are subject to an annual numerical limit, or cap, of 65,000 visas each fiscal year. The first 20,000 petitions for these visas filed on behalf of individuals with U.S. master’s degrees or higher are exempt from this cap.
U.S. Citizenship and Immigration Services (USCIS) announced on January 27, 2011 that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2011.
USCIS is notifying the public that, Jan. 26, 2011, is the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY2011.
H-1B Quota / Cap Exemptions:
The following H-1B petitions are not subject to the annual quota:
On August 13, 2010, President Obama signed Public Law 111-230, which contains provisions to increase certain H-1B and L-1 petition fees.
The following Questions and Answers provide public guidance concerning the additional fees.
Q1. What is Public Law 111-230?
A1. Signed by President Obama on August 13, 2010, Public Law 111-230 requires the submission of an additional fee of $2,000 for certain H-1B petitions and $2,250 for certain L-1A and L-1B petitions.
Q2. When did the fee increase take effect?
A2. The fee increase applies to covered petitions with a postmark date of August 14, 2010 or later. For petitions sent via courier services, the fee applies to filing packets picked up by the courier on August 14, 2010 or later.
Q3. To which petitioners does the new fee apply?
A3. The additional fee applies to H-1B or L-1 petitioners that employ 50 or more employees in the United States with more than 50 percent of their employees in the United States in H-1B, L-1A or L-1B nonimmigrant status.
Q4. To which H-1B petitions does the new fee apply?
A4. H-1B petitioners subject to the new law must submit the fee with any H-1B petition filed:
To seek initial nonimmigrant status for an alien described in subparagraph (H)(i)(b) of INA section 101(a)(15), or To obtain authorization for an alien having that status to change employers. The new fee does not apply to extension requests filed by the same petitioner for the same employee.
Q5. To which L-1A and L-1B petitions does the new fee apply?
A5. L-1 petitioners subject to the new law must submit the fee with an L-1A or L-1B petition filed:
To seek initial nonimmigrant status for an alien described in subparagraph (L) of INA section 101(a)(15), or To obtain authorization for an alien having that status to change employers. The new fee does not apply to extension requests filed by the same petitioner for the same employee.
Q6. What is the additional fee for H-1B petitions?
A6. Public Law 111-230 requires an additional fee of $2,000 for covered H-1B petitions. This fee is in addition to the base processing fee, the existing Fraud Prevention and Detection Fee, and any American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) fee needed to file a Petition for a Nonimmigrant Worker (Form-129), as well as any premium processing fees.
Q7. What is the additional fee for L-1 petitions?
A7. Public Law 111-230 requires an additional fee of $2,250 for covered L-1A and L-1B petitions. This fee is in addition to the base processing fee and the existing Fraud Prevention and Detection Fee required for a Petition for a Nonimmigrant Worker (Form-129) (or, in the case of certain visa exempt aliens, the Nonimmigrant Petition Based on Blanket L Petition (Form I-129S) filed with USCIS), as well as any premium processing fees.
Q8. Must the petitioner or the beneficiary pay the additional fee?
A8. The petitioner, not the beneficiary, should pay the additional fee, where it applies.
Q9. How does the petitioner indicate whether it is subject to the new fee?
A9. Until the Petition for Nonimmigrant Worker (Form I-129) and the Nonimmigrant Petition Based on Blanket L Petition (Form I-129S) are revised, USCIS recommends that all H-1B, L-1A, and L-1B petitioners include, as part of the filing packet, the new fee or a statement or other evidence outlining why this new fee does not apply. USCIS requests that petitioners include a notation indicating whether or not the fee is required in bold capital letters at the top of the cover letter. The fee, statement, notation, or other evidence should be provided with each petition submitted. Where the fee or documentation is not submitted with the filing, or where questions remain, USCIS may issue a Request for Evidence to determine whether the additional fee applies to the petition.
Q10. How will USCIS address petitions filed without the new fee or an explanation of why the new fee does not apply?
A10. Where the fee or explanation is not submitted with the petition, or where questions remain, USCIS may issue a Request for Evidence to determine whether the additional fee applies to the petition. Because an RFE will be issued for the fee, rather than a rejection for the omission of the fee, USCIS will maintain the original filing date as the receipt date. Petitioners should wait to respond to the RFE before sending in the additional fee or an explanation of why the new fee does not apply. Once the revised Form I-129 and Form 1-129S are in place, USCIS will reject covered petitions submitted without the new fee.
Q11. When will the revised Form I-129 and its instructions be available?
A11. USCIS is revising the Form I-129 and Form I-129S and their accompanying instructions and will release them as soon as possible.
Q12. Does USCIS require the new fee to be written in a separate check?
A12. USCIS recommends that petitioners include the new fee in a separate check. The check should be made payable to the Department of Homeland Security.
Q13. How will USCIS define “employer” for purposes of implementing Public Law 111-230?
A13. To implement Public Law 111-230, USCIS will apply the definition of “employer” found at 8 CFR §214.2(h)(4)(ii), which states:
[A] person, firm, corporation, contractor, or other association, or organization in the United States which:
(1) engages a person to work within the United States
(2) has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee; and
(3) has an Internal Revenue Service Tax Identification number.
The use of this definition for purposes of determining the application of this new fee does not extend or authorize its application beyond Public Law 111-230 and the H-1B rules and regulations.
Q14. How will USCIS define “employee” for purposes of implementing Public Law 111-230?
A14. All employees, whether full-time or part-time, will count towards the calculation of whether an employer is subject to the new fee.
Q15. When calculating the percentage of employees in H-1B or L-1 status, will USCIS compare the number of nonimmigrant workers in the petitioner’s workforce to the number of employees in the United States only or to the number of employees worldwide? Will USCIS include employees in L-1 status who remain on foreign payroll?
A15. USCIS will calculate the percentage based on the number of employees in the United States. All employees in the United States, regardless of whether they are paid through a U.S. or foreign payroll, will count toward the calculation.
Q16. Does the new fee apply to derivative beneficiaries?
A16. No. The new fee does not apply to derivatives.
Q.17 Does this new fee apply to any other employment-based visa category (e.g., H-2A, H-2B, etc.)?
A17. No. The new fee applies only to certain H-1B, L-1A, and L-1B petitions.
Q18. Does an employee in L-2 status count as an employee for purposes of determining whether or not the employer has more than 50 percent of its employees in an H-1B or L status?
A18. No. Only H-1B, L-1A, and L-1B employees are counted towards the 50% calculation.
Q19. How will USCIS use the revenue from the new fee?
A19. Under Public Law 111-230, USCIS will not retain the money received from the new fee. Instead, USCIS will deposit all revenue from the new fee into the General Fund of the Treasury.
Q20. Will this fee affect processing times, including premium processing requests?
A20. USCIS is working quickly to ensure that processing times are not affected by the implementation of the new law. To avoid RFEs or delays in individual cases, the public is encouraged to include the new fee or a statement or other evidence outlining why this new fee does not apply.
USCIS issued the following Executive Summary on September 1, 2010
Teleconference: Implementing Public Law 111-230
Background
On August 13, 2010, President Obama signed into law Public Law 111-230. The new law contains provisions that require petitioners to pay an additional $2,000 for certain H-1B petitions and an additional $2,250 for certain L-1 petitions.
To begin public outreach on this legislation, USCIS held a teleconference on August 19, 2010 to share how USCIS will implement it.
Principal Theme
Since the enactment of this law, USCIS received various public inquiries as well as requests for clarification. During the teleconference, USCIS provided the public with responses to some of the most commonly asked questions followed by an open forum to answer additional questions.
During the teleconference, among other answers provided, USCIS informed the public that:
The additional fee is required for certain H-1B or L-1 petitions postmarked on or after August 14, 2010;
The law will remain in effect through September 30, 2014;
This law is applicable to petitioners who employ 50 or more employees in the U.S. and more than 50% of the petitioner’s employees are in H-1B or L nonimmigrant status;
Until the Form I-129 is updated, if a petitioner believes s/he is exempt from the requirement to pay the additional fee(s), the petitioners should include a cover letter, with their filings, that explains why the added fee does not apply. At the top of the cover letter, petitioners should include a notation of whether or not the fee is required in bold capital letters;
If a petitioner does not include the added fee and USCIS determines the fee is required or if USCIS cannot determine if the fee is required, USCIS will issue a Request for Evidence (RFE) for the additional fee or for further explanation; and
If the petitioner includes the increased fee, the fee should be paid by a separate check. The check should be made payable to the Department of Homeland Security. By paying the increased fee separately, USCIS will be able to more quickly issue a refund, if it is later determined that the increased fee was not required.
Next Steps
USCIS is drafting a Questions and Answers document that will be completed shortly;
On August 19, 2010, USCIS posted to its website an Update titled USCIS Implements H-1B and L-1 Fee Increase According to Public Law 111-230;
USCIS, CBP, the Department of State and the Department of Justice are communicating and coordinating the implementation of this new legislation to ensure a smooth transition; and
The public may continue to send questions related to this legislation to the Office of Public
Engagement at Public.Engagement@dhs.gov.
Application to Extend/Change Nonimmigrant Status
WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced revised filing instructions and addresses for applicants filing an Application to Extend/Change Nonimmigrant Status (Form I-539) by itself.
The new form, dated 7/15/10, is part of an overall effort to transition the intake of some benefit forms from Service Centers to USCIS Lockbox facilities. Centralizing form and fee intake to a Lockbox environment allows USCIS to provide customers with more efficient and effective initial processing of applications and fees.
Beginning Aug. 3, 2010 applicants submitting Form I-539 by itself must mail their application to the USCIS Dallas Lockbox facility.
Applicants submitting their Form I-539 with Form I-129, Petition for Nonimmigrant Worker, will continue to submit both forms to either the USCIS California Service Center or the USCIS Vermont Service Center, according to the Form I-129 filing instructions.
Dependent applicants submitting Form I-539 applications at the same time should include their application in the package with the primary applicant.
Applicants filing Form I-539 under category “P-4, Dependents of Major League Sports” Athletes or Support Personnel, should continue to file their applications at the USCIS Vermont Service Center.
Applicants filing under the category “V Nonimmigrant” should continue to file their applications at the USCIS Chicago Lockbox facility. Detailed guidance can be found in updated Form I-539 instructions at www.uscis.gov, under the “FORMS”tab.
USCIS Service Centers will forward incorrectly filed Form I-539 applications to the USCIS Dallas Lockbox facility by mail for 45 days, until Sept. 17, 2010.
After Sept. 17, 2010 applications incorrectly filed at the Service Centers will be returned to the applicant, with a note to send the application to the correct location.
USCIS will issue a reciept upon receiving a correctly filed Form I-539 in accordance with the revised filing instructions.
Applicants filing a Form I-539 at a USCIS Lockbox facility may elect to receive an e-mail and/or text message notifying them that their application has been accepted.
They must complete an E-Notification of Application/Petition Acceptance (Form G-1145), and attach it to the first page of their application.
As of July 23, 2010 USCIS has receipted 26,000 H-1B cap-subject petitions.
USCIS has receipted 11,300 H-1B petitions for aliens with advanced degrees.
USCIS updated its count of FY 2011 cap-subject H-1B petitions and advanced degree cap-exempt petitions receipted.
As of 7/16/10, approximately 25,300 H-1B cap-subject petitions were receipted.
USCIS has receipted 11,000 H-1B petitions for aliens with advanced degrees.
USCIS updated its count of FY 2011 cap-subject H-1B petitions and advanced degree cap-exempt petitions receipted.
As of 7/9/10, approximately 24,800 H-1B cap-subject petitions were receipted. USCIS has receipted 10,600 H-1B petitions for aliens with advanced degrees.