USCIS Conducted Lottery for FY2015 H1B CAP - April 10, 2014

April 11, 2014

INFORMATION SOURCE - USCIS

USCIS Reaches FY 2015 H-1B Cap

Release Date: April 10, 2014


WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced on April 7 that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption.

USCIS received about 172,500 H-1B petitions during the filing period which began April 1, including petitions filed for the advanced degree exemption. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced degree exemption. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

The agency conducted the selection process for the advanced degree exemption first. All advanced degree petitions not selected then became part of the random selection process for the 65,000 limit.

On March 25, USCIS announced that they would begin premium processing for H-1B cap cases no later than April 28.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:
• Extend the amount of time a current H-1B worker may remain in the United States;
•Change the terms of employment for current H-1B workers;
•Allow current H-1B workers to change employers; and
•Allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.

For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Facebook (/uscis), Twitter (@uscis), YouTube (/uscis) and the USCIS blog The Beacon.

The U.S. Department of Labor (DOL) updated FY2014 Statistics (First Quarter)

March 6, 2014

The U.S. Department of Labor (DOL), Office of Foreign Labor Certification (OFLC) has provided FY2014 statistics (first quarter) in the form of program factsheets for each of the major immigration programs. These updated FY2014 statistics (first quarter) cover October 2013 through December 2013.

The link to each program factsheet is listed below:

Permanent Labor Certification Program – Select Statistics, FY 2014 (first quarter)

Prevailing Wage Determination Program – Select Statistics, FY 2014 (first quarter)

H-1B Temporary Visa Program – Select Statistics, FY 2014 (first quarter)

H-2A Temporary Agricultural Visa Program – Select Statistics, FY 2014 (first quarter)

H-2B Temporary Non-agricultural Visa Program – Select Statistics, FY 2014 (first quarter)


Source of Information: OFLC Performance Data

The U.S. Department of Labor (DOL) updated FY2013 Statistics

February 27, 2014

The U.S. Department of Labor (DOL), Office of Foreign Labor Certification (OFLC) has provided FY2013 statistics in the form of program factsheets for each of the major immigration programs. These updated FY2013 statistics cover October 2012 through September 2013.

The link to each program factsheet is listed below:

Permanent Labor Certification Program – Select Statistics, FY 2013

Prevailing Wage Determination Program – Select Statistics, FY 2013

H-1B Temporary Visa Program – Select Statistics, FY 2013

H-2A Temporary Agricultural Visa Program – Select Statistics, FY 2013

H-2B Temporary Non-agricultural Visa Program – Select Statistics, FY 2013


Source of Information: OFLC Performance Data

USCIS Message: Important Information on Form I-129 H-1B, H-2A, and H-2B Petitions

October 18, 2013

From the USCIS Public Engagement Division:

If an H-1B, H-2A, or H-2B petitioner submits evidence establishing that the primary reason for failing to timely file an extension of stay or change of status request was due to the government shutdown, USCIS will consider the government shutdown as an extraordinary circumstance and excuse the late filing, if the petitioner meets all other applicable requirements.

For more information, please visit www.uscis.gov.

OFLC’s Updated Factsheets, Third Quarter FY2013

July 25, 2013

The U.S. Department of Labor, Office of Foreign Labor Certification (OFLC) has released updated factsheets containing Third Quarter FY2013 selected program statistics. These factsheets contain vision representations of the data by using graphs and tables, which makes them much easier to read and understand. I have provided the links to the five updated factsheets below for your review.


Permanent Labor Certification Program

Prevailing Wage Determination Program

H-1B Temporary Visa Program

H-2A Temporary Agricultural Visa Program

H-2B Temporary Non-agricultural Visa Program


Source of Information:

OFLC's Web Site, (6/27/13) Announcement:
June 27, 2013. Q3 FY 2013 Selected Statistics by Program

View the links below for more detail on the subject:
OFLC's Performance Data

OFLC’s Updated Factsheets, Second Quarter FY2013

April 17, 2013

The U.S. Department of Labor, Office of Foreign Labor Certification (OFLC) has released updated factsheets containing Second Quarter FY2013 selected program statistics. These factsheets contain vision representations of the data by using graphs and tables, which makes them much easier to read and understand. I have provided the links to the five updated factsheets below for your review.


Permanent Labor Certification Program

Prevailing Wage Determination Program

H-1B Temporary Visa Program

H-2A Temporary Agricultural Visa Program

H-2B Temporary Non-agricultural Visa Program


Source of Information:

OFLC's Web Site, (4/11/13) Announcement:
April 11, 2013. Quarter 2 FY 2013 Selected Statistics by Program

View the links below for more detail on the subject:
OFLC's Performance Data

EAD – The Ins and Outs as an Option for Employment

December 10, 2012

Many people seem to be wondering whether they should work based on their employment authorization documents (EADs). This dilemma is likely tied to the large number of individuals who were able to file adjustment of status applications (I-485s) in late 2011 or early 2012. For these individuals, the option of employment using an EAD is a recent development.

Background: Cutoff Date Retrogression and Fluctuation

There was rapid advancement of the EB2 India and China cutoff dates from December 2011 through April 2012. Thereafter, for most such applicants, visa numbers have been unavailable due to a phenomenon known as retrogression. As of this writing, the cutoff date for EB2 India has retrogressed - or moved backwards - to a cutoff date of September 1, 2004, valid during the months of October, November, and December 2012. EB2 China has less extreme retrogression, with a cutoff date of October 22, 2007 during the month of December 2012.

The end result is many I-485 applicants who expect to have to wait for a long time before their cases become eligible for approval, since approval is contingent upon the availability of visa numbers. This same group of I-485 applicants is eligible for the issuance of EADs, based on pending I-485 cases. Most applicants routinely request EADs with I-485 filings. Many have their EADs in hand, therefore, and are wondering about the possibility of using those privileges, rather than extending H1B or L-1 or other nonimmigrant status.

Pros and Cons of Using the EAD for Employment

The EAD provides unrestricted employment authorization. It is a valuable privilege, and foreign workers with EADs often find that their employment options expand once they have the document. The questions generally asked are whether the H1B should be extended if a person has an EAD or whether a person should accept a job using an EAD. Our answer to this is that, if a person allows the H1B or other nonimmigrant status to lapse they are relying solely on the I-485 as their basis for being in the United States.

With the I-485 pending, the foreign national is considered to be in a period of authorized stay in the United States. S/he is eligible to extend the EAD as long as the I-485 remains pending. Travel is also possible, if the applicant also has advance parole (AP). Many people have joint EAD/AP cards, but they require two separate applications and, depending upon timing, some are issued as two separate documents.

Using the EAD and relying upon the I-485, means that there is no underlying nonimmigrant status. Thus, if the I-485 is denied for some reason, the person will be out of status. The options at that point depend upon the reason for the I-485 denial and other factors, including whether there are any options through a spouse. This is a very different situation from an I-485 denial for a person who still has an H1B or other nonimmigrant status. In that situation, after the I-485 denial, the foreign national would still have the nonimmigrant status to fall back on and would usually have more options available to them.

Considerations in Using the EAD

Put simply, generally, it is safer to maintain a nonimmigrant status rather than relying solely on the I-485 and EAD. However, there are valid reasons that many decide to take the calculated risk. For some, there is no choice, as the employer will not extend the H1B status after the person has the EAD. Still others may have faced layoffs and other job issues, and have had to move to a new employer using the EAD.

For many, it is a choice and a balancing of risks. Once the I-485 has been pending for 180 days, applicants often start to consider job changes under the American Competitiveness in the 21st Century Act (AC21). All employers in the United States must accept EAD holders; employers are not required to sponsor H1Bs or other nonimmigrant categories. So, the universe of potential employers increases once one has an EAD. This often leads to choosing between working on the EAD on one side and passing up possible career-advancing opportunities to keep non-immigrant status on the other. For that reason, many people ultimately decide to work on the EAD at some point in their cases.

When weighing the choices, it is a good idea to try to assess whether there are any enhanced risk factors in the applicant's I-485 case. While all cases have potential weaknesses, some cases are more likely to run into problems than others. The attorneys at the MVP Law Group can help to assess case strengths and weaknesses, based on our many years of experience in providing I-485 representation, as well as our knowledge of current trends. Those considering the issues surrounding the use of the EAD discussed in this article may wish to schedule a consultation with one of our knowledgeable attorneys.

~Article contributed by Stacey Bell, Senior Paralegal.

For more related information and other articles on Business Immigration please review the MVP Law Group Blog.

The U.S. Department of Labor (DOL) updated FY2012 Statistics

October 9, 2012

The U.S. Department of Labor (DOL) Office of Foreign Labor Certification (OFLC) has provided FY2012 statistics in the form of program factsheets for each of the major immigration programs. These updated FY2012 statistics cover October 2011 through September 16, 2012. The link to each program factsheet is listed below.

Permanent Labor Certification Program

Prevailing Wage Determination Program

H-1B Temporary Visa Program

H-2A Temporary Agricultural Visa Program

H-2B Temporary Non-agricultural Visa Program

Is an Amended H-1B Petition Required When the Worksite Changes?

September 7, 2012

The question of whether a new or amended H-1B petition is required when the beneficiary’s worksite changes has been raised with USCIS at the October 5, 2011 stakeholders meeting (AILA Doc. No. 11100570) and again at the March 29, 2012 stakeholders meeting (AILA Doc. No. 12033045). AILA supports the position taken in the October 23, 2003, Efren Hernandez letter, that an amended Form I-129 is not needed for geographic moves so long as the following conditions are met:

1) an LCA has been filed and certified for the new location prior to the employee’s move to the new location;

2) the LCA has been posted in accordance with DOL regulations;

3) other wage and hour obligations are met; and

4) there are no other material changes to the terms and conditions of employment (AILA Doc. No. 03112118).

In addition, 20 CFR §655.735 provides guidance on short-term placement of H-1B nonimmigrants at places of employment within and outside the areas of intended employment listed on the LCA.

At the March 29, 2012 meeting, USCIS stated that it is continuing to review and develop new guidance on amended H-1B petitions as part of its overall policy review and that it may issue additional guidance on this issue in the USCIS Policy Manual. However, the California Service Center (CSC) appears to be taking the position that an amended petition must be filed for a geographic job location change. At a CSC Stakeholder meeting held on August 10, 2011, the CSC stated that 8 CFR §214.2 requires an amended or new petition to reflect material changes in the terms and conditions of an H-1B petition. Generally, it is the position of the CSC that an amended H-1B petition should be filed if an LCA is filed after approval of an H-1B petition. (AILA Doc. No. 11093037).

Practitioners are reporting site audits and revocation of petitions where USCIS could not find the beneficiary of the petition at the worksite listed in the initial petition. Despite documentation of an LCA for the beneficiary’s new worksite, as well as additional documentation supporting the worksite change, the CSC nevertheless has revoked the H-1B petition stating that an amended petition must be filed because the new worksite was not shown on the original petition.

Until USCIS headquarters issues a definitive answer as to whether a new or amended petition is needed for a change in location, MVP Law Group will continue to exercise caution by advising their clients to file a new LCA and amended petition prior to the geographic relocation of the employee.

Source of Information: "AILA InfoNet Doc. No. 12083048 (posted Aug. 30, 2012)"

LATEST UPDATE: H-1B FY2013 CAP COUNTS

May 8, 2012

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of May 4th, 2012, 32,500 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of May 4th, 2012, 13,700 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

*USCIS will continue to accept H-1B 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.

Stay tuned to MVP Law Group for FY 2013 H-1B CAP updates!

LATEST UPDATE: H-1B FY2012 CAP COUNTS

October 27, 2011

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of October 21, 2011, 46,200 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of October 21, 2011, 20,000 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

Petitions filed on behalf of beneficiaries who have obtained a U.S. master’s degree or higher will be counted against the regular cap once USCIS has received sufficient petitions to reach the advanced degree exemption.

*USCIS will continue to accept H-1B petitions until a sufficient number of 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.

Stay tuned to MVP Law Group for FY 2012 H-1B CAP updates!

LATEST UPDATE: H-1B FY2012 CAP COUNTS

June 21, 2011

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of June 17th, 2011, 16,300 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of June 17th, 2011, 10,800 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

*USCIS will continue to accept H-1B 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.

Stay tuned to MVP Law Group for FY 2012 H-1B CAP updates!

LATEST UPDATE: H-1B FY2011 CAP COUNT

December 1, 2010

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of November 26, 2010, 50,400 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of November 26, 2010, 18,400 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

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.

Stay tuned to MVP Law Group for FY 2011 H-1B CAP updates!

Immigrants Can Help Create MORE Jobs

November 26, 2010

According to Tyler Cowen, a writer for The New York Times and economics professor at George Mason University, immigration to the US is increasing business activity and therefore creating an increase in jobs. He cites “Immigration, Offshoring and American Jobs” which explains that keeping companies onshore also helps keep low-wage jobs. The study goes on to find an inverse relation between immigration rates and offshoring, as offshoring increases the number of immigrants decrease and vice versa. Immigrant workers actually fill in labor market gaps and are “complementary” to the American business system; this contrasts with common bias that immigrants take away jobs from native US citizens and are detrimental. The study found that Americans and immigrants occupy different areas in the workforce and take different jobs, balancing each other in the labor force. Cowen goes on to explain that we naturally blame others or different groups for problems instead of realizing that machines and technology displace many human workers.

In conclusion, Cowen recommends the sanction of more immigrants coming into the US due to the potential increase in jobs and tax revenue, benefits to Social Security, as well improvement on the country’s overall business.

LATEST UPDATE: H-1B FY2011 CAP COUNT

November 23, 2010

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of November 19, 2010, 48,977 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of November 19, 2010, 17,836 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

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.

LATEST UPDATE: H-1B FY2011 CAP COUNT

October 5, 2010

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of October 1, 2010, 40,600 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of October 1, 2010, 14,900 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

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.

Stay posted to MVP Law Group for future FY2011 H-1B Cap updates!

UPDATE: H-1B FY2011 CAP COUNT

August 31, 2010

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of August 27, 2010, 34,900 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of August 27, 2010, 13,000 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

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.

Stay posted to MVP Law Group for future FY2011 H-1B Cap updates!

LATEST UPDATE: H-1B FY2011 CAP COUNT

August 10, 2010

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of August 6, 2010, 28,500 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of August 6, 2010, 11,900 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

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.

Stay posted to MVP Law Group for future FY2011 H-1B Cap updates!

MVP LAW GROUP – Q&A Forum, August 6, 2010

August 6, 2010

Question #1 – Temporary Work Visa – H-1B Nonimmigrant Visa
My H1b visa got approved in 2009 which was filed by my previous employer.I did not get chance to travel to USA and even my visa is not stampted. Now I am with other employer.
Can I transfer my H1b?

Answer #1
The safest option to utilize at this point given the facts as you have provided is to file a new H-1B petition. Transfers and Extensions do not apply in this scenario because you have never entered the U.S as an H-1B nonimmigrant. Once the petition is filed and approval received, you would need to attend the Consulate interview and if all goes well, you would be able to then travel to the US and after speaking with CBP, enter as an H-1B nonimmigrant visa holder.


Question #2 – Employment Based Immigration – Green Card: Biometrics
I think the fingerprints that the USCIS has on file for my GC are set to expire soon. Should I take Info pass appointment to give them a new set of fingerprints?

Answer #2
As written on the I-797C, Notice of Action, in some types of cases USCIS requires biometrics. In such cases, USCIS will send you an appointment notice with a specific date, time and place for you to go to a USCIS Application Support Center (ASC) for biometrics processing. You must WAIT for that appointment notice and take it to your ASC appointment along with your photo identification.


Question #3 – Temporary Work Visa – H-1B Nonimmigrant Visa: Traveling
I am planning on traveling out of the US for a vacation; however, I heard from friends that I may not be able to obtain a new visa stamp for my recently approved I-129 and come back. Please advise.

Answer #3
If you MUST travel on H-1B status, we recommend that you have the following: at least two month’s worth of pay stubs, a copy of the approved H-1B petition, an original employment verification letter, the original approval notice, and any other documentation that would demonstrate compliance with the laws governing the H-1B program and the establishment of a bona fide job opportunity.


Question #4 – Employment Based Immigration – Green Card
My child has received his Green Card and his birth date is wrong on the card. Do I need to fix this? How do I fix this?

Answer #4
You will need to file Form I-90, Application to Replace Permanent Resident Card. If you believe this was an administrative error on the part of the USCIS, you will need to check box d in Part 2, number 2 of the application. Along with the Form I-90 and accompanying filing fee of $290.00 plus $80.00 for biometrics, please attach the incorrect card and evidence of the correct information (original birth certificate; passport; previous approval notices, etc). You will need to submit the USCIS filing fees (made payable to the “U.S. Department of Homeland Security”) even though you believe it was an administrative error. If you send the form with accompanying documentation without the filing fees, the case will be returned until you provide those fees. If the USCIS agrees that the error was administrative in nature, they will issue a new card and return the filing fees.


Question #5 – Employment Based Immigration – Green Card
My spouse and child have received their Green Cards but I have not. I filed for our GCs through my employer. What do I need to do? Is there a problem with the processing of my case? Could my GC be denied? Please advise.

Answer #5
Based on the small amount of information provided, it seems like there may just be an issue with the issuance/mailing of your Green Card. Your husband and child would not have received their Green Card if there was a pending issue with your case. From the information you provided, you are the primary applicant and your spouse and child are your derivatives. Therefore, the USCIS would not approve the I-485 Application to Adjust status for the derivatives without first approving it for the primary applicant. Follow up with the USCIS after 30 days from the date your spouse and child received their Green Cards by calling 1-800-375-5283.


Question #6 - Employment Based Immigration – Green Card - EAD Renewal
I filed for my EAD renewal back in May 2010 with the NSC and it is still pending. My current EAD expires next week. What are my options moving forward - can I expedite the EAD renewal process since my card is expiring next week, can I continue to work with the receipt notice?

Answer #6
To my knowledge you normally cannot expedite an EAD renewal request; however, I have heard from my colleagues that after an EAD renewal has been pending for 75+ days at the NSC an Attorney may contact the Service Center directly to notify them of the situation. If you do not receive your EAD approval by the time your current EAD expires, you MUST WAIT and NOT WORK until your EAD is approved. You MAY NOT continue to work using the EAD receipt notice as the receipt is not evidence of an approval.

You may file an EAD renewal request up to 120 days in advance of the expiration of your current EAD and should be aware of the Service Center processing times well in advance of filing so that you can obtain an approval of the EAD to continue working.


Question #7 – Temporary Work Visa – H-1B Nonimmigrant Visa
What document determines how long I can stay in the United States: my visa, my I-94 card or the expiration of my current passport?

Answer #7
Short answer: The visa stamp issued by the U.S. State Department displayed in your passport allows you to enter the U.S. at a port of entry. The I-94 card issued by an Immigration Inspector at the port of entry is your admission ticket and displays the time period you are authorized to stay in the United States. If your I-94 card expires and you did not obtain an extension, and you remain in the U.S. without taking further action, this inaction will result in you accruing unlawful presence in the U.S.


Question #8 – Family Based Immigration: Marriage – K1 Fiancé Visa
My son is U.S. Citizen and would like to marry his Pakistani fiancé. Both boy and girl know each other over three years and have been engaged for 8 months already. Can my son file a petition for his fiancé? How long is it taking?

Answer #8
U.S. Citizens who are engaged to be married to a foreign national may petition the USCIS on behalf of their fiancé by way of the K-1 visa. To be eligible for this visa: (1) you must be legally able to marry; (2) the marriage must be a bona fide marriage with good intent; (3) you must be willing to marry within 90 days of the fiancé entering the United States; and (4) you must have met within two years of filing for the visa. The K-1 visa is valid for only one entry into the United States. Therefore, reentering with it is not possible. You also cannot renew a K-1 fiancé visa. Your son should first file a Petition for Alien Fiancé (Form I-130) with the USCIS. Once the petition is approved, the USCIS will forward the approved petition to the appropriate American consulate to interview the beneficiary. Once the beneficiary attends the consular interview and is approved for the visa, she may travel to the United States to marry your son. A petition for K-1 status is valid for four months from the date of USCIS action, and may only be revalidated by the consular officer. Currently, it is taking approximately 5 months to obtain approval for the Petition for Alien Fiancé.


Question #9 – Temporary Work Visa – H-1B Nonimmigrant Visa
I was on H-1B status from 2006-2009 and now currently utilize my EAD. My sponsoring H-1B employer did not pay me what was listed in my LCA. Can I do anything now about this?

Answer #9
If your employer has not paid you in accordance with the certified LCA, then they are most likely in violation of the The Fair Labor Standards Act (FLSA), The FLSA prescribes standards for the basic minimum wage and overtime pay which affects most private and public employment. It requires employers to pay covered employees who are not otherwise exempt at least the federal minimum wage and overtime pay of one-and-one-half-times the regular rate of pay. The Act is administered by the Employment Standards Administration's Wage and Hour Division within the U.S. Department of Labor.

You may wish to check out the following link regarding how to move forward when attempting to file suit to obtain any back payment of wages, etc.


Question #10 – Temporary Work Visa – H-1B Nonimmigrant Visa
Can you let me know how many visas remain under the H-1B Cap?

Answer #10
As of July 30, 2010, there were 37,700 H-1B Regular CAP subject nonimmigrant visas remaining and 8,400 H-1B Masters Exemption nonimmigrant visas remaining. 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. For continuous FY2011 H-1B Cap updates, please refer to our website.


MVP Law Group would like to thank everyone who contributed a question or comment. We hope the information provided is helpful.

Our next “Immigration Q & A Forum” is scheduled for Friday, August 20, 2010! Please remember to submit your questions/comments on our h1bvisalawyerblog.

MVP Law Group, P.A. makes available the information and materials in this forum for informational purposes only. The information is general in nature and does not constitute legal advice or any contractual obligations. Further, the use of this site, and the sending or receipt of this information, does not create an attorney-client relationship between us. And, therefore, your communication with us through this forum will not be considered as privileged or confidential.

H-1B FY2011 CAP COUNT

April 9, 2010

The United States Citizenship and Immigration Service (USCIS) has updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of April 8, 2010, 13,500 H-1B Regular CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 65,000 cap.

As of April 8, 2010, 5,600 H-1B Masters Degree CAP subject non-immigrant visa petitions have been filed with the USCIS towards the 20,000 cap.

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.

Stay posted to MVP Law Group for future FY2011 H-1B Cap updates!

H-1B Visa Season Quickly Approaching - Get Your H-1B Cases Ready Now To File On April 1

March 30, 2010

H-1B Nonimmigrant Visa Petitions should be filed on April 1, 2010 for Fiscal Year 2011, which begins on October 1, 2010 and ends September 30, 2011. The U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa petitions for professionals that count against the FY2010 cap on April 1, 2010. These professionals will be eligible to begin H-1B employment on October 1, 2010. In past years, the H-1B cap has been exceeded on the first day, April 1st.

If your company is interested in a consultation about this process, CONTACT OUR OFFICE IMMEDIATELY!

H-1B nonimmigrant visas are for professional foreign workers with a U.S. bachelor’s degree or its foreign equivalent. Congress allows 65,000 visas to be issued annually to qualifying foreign workers. An additional 20,000 H-1Bs are reserved for professional foreign workers who receive U.S. Master’s degrees. Employers petition the United States Citizenship and Immigration Services (USCIS) on behalf of the professional foreign worker beginning six months prior to the beginning of the upcoming fiscal year. Frequently, employers interested in utilizing the H-1B visa program contact an experienced Immigration Business Lawyer for a consultation about the process, determine eligibility, discuss applicable lawyer’s fees and filing fees, and so forth.

Employers looking to hire new H-1B professionals are urged to begin the H-1B petition process now.

Employers should review their employment needs and determine whether any foreign national employees will be requiring H-1B visas. This is extremely important where employers are planning to hire foreign nationals who will soon graduate from U.S. universities. While many of these individuals may already have an employment authorization card, you may still have to file an H-1B petition for them. For instance, if you plan to hire an individual that will graduate in May 2010, that individual’s employment authorization card will be valid through the end of May 2011. After May 2011, this individual will no longer be able to work for you unless you have already filed an H-1B petition for them on April 1, 2010 asking the USCIS to change their status to H-1B from October 1, 2010. H-1B status grants such an individual up to three years of employment authorization from October 1, 2010.

The H-1B cap does not apply to foreign nationals who already hold H-1B status and are seeking to change/transfer their H-1B employer and/or extend their H-1B stay in the United States.

DON'T DELAY...Contact MVP Law Group to begin the process TODAY!

UPDATE on the Federalized Process for Obtaining PWD Requests

March 26, 2010

Effective January 21, 2010, the Department of Labor's iCERT online system was updated to allow the submission of electronic prevailing wage determination requests. This electronic process was intended to allow Employers and/or their Designated Representatives to submit and obtain prevailing wage determinations (PWD) for use in the H-1B, H-1B1 (Chile/Singapore), H-1C, H-2B, E-3 (Australia), and permanent labor certification programs through the iCERT portal. However, at this time, this federalized electronic process has caused delays in the issuance of prevailing wage determinations.

Prior to January 1, 2010, the date of enactment of the Federalized Process, employers and/or their designated representative were able to obtain PWDs from their State Workforce Agencies (SWAs), which normally took between two (2) to fourteen (14) days or even a months time. Currently, requestors are waiting between thirty (30) to sixty (60) days to obtain a response from the DOL further delaying the commencement of a new PERM case, or the filing of an AC-21 Portability Case.

Requestors who have submitted PWD requests to the NPWHC by U.S. Mail between January 1, 2010 and January 21, 2010, the launch date of the iCERT PWD System have received a response in regards to their PWD requests. However, at this time, there appear to be delays in the issuance of PWDs through the national DOL office with both hard copy and electronically submitted requests since January 21, 2010.

According to many interactive blog posts by various Immigration Law Firms, the DOL has reportedly not acted on any requests submitted online. The DOL has been advised of this situation and the effect that it has upon the Employment Based Green Card (PERM) and H-1B programs, as obtaining a PWD is the starting point in the PERM process for most foreign workers.

The DOL has recently issued updated FAQs to assist employers and others. The FAQs provide that the Department will provide PWDs as quickly as possible, on a first in, first out order. They have advised that determination times will fluctuate as they work to centralize the process. Additionally, they recommend that requestors submit their prevailing wage requests at least 60 days in advance of the employers' initial recruitment efforts.

THE LATEST: Our office submitted an electronic PWD through the iCERT portal on March 8, 2010 and received the determination back on May 5, 2010. Clearly, PWDs are taking anywhere from 45-60 days to be issued by the DOL.

You may still submit hard copy PWD requests to the address listed below:
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

Or, you may submit electronic PWD requests through the iCERT portal.

Please be aware of the current delays and plan accordingly!

MVP Law Group will continue to monitor the situation and will provide you with any information that becomes available.

H-1B Visa Season Quickly Approaching - Get Your H-1B Cases Ready Now To File On April 1 for October 1, 2010 Start Date

March 15, 2010

H-1B Nonimmigrant Visa Petitions should be filed on April 1, 2010 for Fiscal Year 2011, which begins on October 1, 2010 and ends September 30, 2011. The U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa petitions for professionals that count against the FY2010 cap on April 1, 2010. These professionals will be eligible to begin H-1B employment on October 1, 2010. In past years, the H-1B cap has been exceeded on the first day, April 1st.

H-1B nonimmigrant visas are for professional foreign workers with a U.S. bachelor’s degree or its foreign equivalent. Congress allows 65,000 visas to be issued annually to qualifying foreign workers. An additional 20,000 H-1Bs are reserved for professional foreign workers who receive U.S. Master’s degrees. Employers petition the United States Citizenship and Immigration Services (USCIS) on behalf of the professional foreign worker beginning six months prior to the beginning of the upcoming fiscal year. Frequently, employers interested in utilizing the H-1B visa program contact an experienced Immigration Business Lawyer for a consultation about the process, determine eligibility, discuss applicable lawyer’s fees and filing fees, and so forth.

If your company is interested in a consultation about this process, CONTACT OUR OFFICE IMMEDIATELY!

Employers looking to hire new H-1B professionals are urged to begin the H-1B petition process now.

Employers should review their employment needs and determine whether any foreign national employees will be requiring H-1B visas. This is extremely important where employers are planning to hire foreign nationals who will soon graduate from U.S. universities. While many of these individuals may already have an employment authorization card, you may still have to file an H-1B petition for them. For instance, if you plan to hire an individual that will graduate in May 2010, that individual’s employment authorization card will be valid through the end of May 2011. After May 2011, this individual will no longer be able to work for you unless you have already filed an H-1B petition for them on April 1, 2010 asking the USCIS to change their status to H-1B from October 1, 2010. H-1B status grants such an individual up to three years of employment authorization from October 1, 2010.

The H-1B cap does not apply to foreign nationals who already hold H-1B status and are seeking to change their H-1B employer and/or extend their H-1B stay in the United States.

Contact MVP Law Group to begin the process now!

FY2011 H-1B CAP preparation & filing SPECIAL

January 8, 2010

MVP Law Group is currently offering the following special for FY2011 Cap Subject H-1B petitions - complete an H-1B questionnaire and send all requested documents to our office by February 28, 2010 and save $150.00.

Our normal legal fees are $1500.00 plus an administrative fee of $150.00 per petition.

Act Now, Don't Delay! Contact our office today!

UPDATED - FY2010 H-1B CAP REACHED

December 23, 2009

The United States Citizenship and Immigration Service (USCIS) has received sufficient H-1B petitions to reach the statutory cap of 65,000 for FY2010.

New H-1B Petitions filed after December 21, 2009 seeking an employment start date in FY2010 will be rejected by USCIS. Furthermore, the Service will apply a computer-generated random selection process to all petitions that were eligible and received on December 21, 2009.

Stay posted for H-1B filing specials for the FY2011 H-1B CAP!

LATEST UPDATE - FY 2010 H-1B Cap Count

November 6, 2009

On November 3, 2009, the United States Citizenship and Immigration Service (USCIS) updated the count of H-1B petitions received and counted towards the 65,000 cap.

As of October 30, 2009, 53,800 H-1B cap subject nonimmigrant visa petitions have been filed with the USCIS. The Service has advised that they will continue to accept petitions until the cap is reached.

Additionally, the Service has reported that they received 20,000 advanced degree H-1B petitions. Although the limit on advanced degree petitions is 20,000, past experience has tended to show that not all petitions received are approvable.

Accordingly, qualifying applicants are still able to petition for an H-1B nonimmigrant visa under the general cap.

If you are interested in applying for an H-1B nonimmigrant visa, please contact our office.

FYI – Clarification on H-1B Lottery System

March 30, 2009

Many employers have been questioning whether the regulation governing the “lottery” system will apply to this year’s H-1B cap. The United States Citizenship and Immigration Service (USCIS) has provided that the lottery will apply this year. In accordance with the regulation, the USCIS randomly selects the number of petition’s necessary to reach the cap from petitions received on the final receipt date. This year, it has been confirmed that if USCIS determines that they have received a sufficient number of cases in the first five business days of April to reach the cap, then the "lottery" will be based on petitions received all five days. USCIS will not begin to issue receipts, however, until a determination is made that sufficient H-1B petitions have been received within the first five business days of April, ending April 7, 2009. After the "lottery" is conducted, the USCIS will then issue receipts for those cases which are selected, and the receipts will likely all have the same receipt date, April 8, 2009. All petitions received between April 1, 2009, and April 7, 2009, will have the same receipt date.

If you have any further questions regarding the H-1B lottery system or the H-1B nonimmigrant visa in general, please contact our office.

Extending H-1B Status beyond the Regulatory Six-Year Limitation Period

March 19, 2009

The H-1B nonimmigrant visa program is designed to allow alien beneficiaries to enter the country and begin working for a U.S. employer for a period of three years. The sponsoring employer or a new employer may renew the H-1B visa for another period of three years. In other words, the Immigration and Nationality Act (INA) regulations clearly allow for the recipient of an H-1B visa to be in H-1B status for a total initial period of six years. The alien beneficiary may then return to his/her home country, remain there for one year, and only then will they be eligible to apply for another H-1B nonimmigrant visa.

However, there are ways to extend H-1B visa status beyond the six year limit. The Vermont Service Center (VSC) Liaison Committee has provided the following guidance for extending H-1B status beyond the six year limitation. If the alien beneficiary has completed one of the following conditions, they are eligible for an extension beyond the sixth year as long as one of the listed conditions have been met prior to the alien’s requested start date:

(1) 365 days or more have passed since the filing of any application for labor certification; and the labor certification, if approved, has not been revoked, is unexpired, or has been timely filed with an EB petition within the labor certification’s validity period; or
(2) 365 or more days have passed since the filing of an EB immigrant petition that is still pending; or
(3) The alien is the beneficiary of an approved EB immigrant petition and is not able to file an adjustment of status application or, if such application has already been filed, is unable to adjust status due to the unavailability of an immigrant visa number.

Additionally, If an alien beneficiary has time remaining under the regulatory H-1B six-year limitation period, the employer may file an H-1B extension petition requesting to recapture the remaining amount of time, plus a one-year extension pursuant to AC21 § 106. The one-year extension will be granted provided that:

(1) A labor certification is unexpired at the time of filing the extension petition, and
(2) The labor certification or the I-140 petition was filed at least 365 days prior to the date the alien will exhaust 6 years of H-1B status pursuant to 8 CFR § 214(g)(4); and
(3) The extension petition is otherwise approvable

Additionally, alien beneficiaries are eligible for a three year H-1B extension beyond the sixth year limitation period pursuant to AC21 § 104 as long as the alien is the beneficiary of an APPROVED I-140 petition AND is INELIGIBLE for an immigrant visa abroad because no visa numbers are available at the time the H-1B extension petition is filed.

For more information on the H-1B nonimmigrant visa program or if you have any questions regarding extending H-1B status, please contact our office to schedule a consultation.

Labor Department To Implement New Online Application System

March 18, 2009

The Department of Labor will soon implement a new integrated online system – known as the iCert Portal – through which employers will submit applications for permanent labor certification, labor condition applications (LCAs) and other applications for immigration-related DOL programs. In addition, the agency will introduce new editions of Form ETA-9089, the PERM labor certification application, and Form ETA-9035, the labor condition application. When fully implemented, the new system will replace the existing LCA and labor certification application systems. DOL will implement the new LCA and PERM application systems with 30-day transitional periods, when both the existing system and the new online portal will be operational simultaneously.

The new iCert system will begin to accept LCAs as of April 15, 2009 – after the April 1 opening date of the H-1B filing period for employment in Fiscal Year 2010. The system will begin to accept PERM applications beginning July 1, 2009.

Continue reading "Labor Department To Implement New Online Application System" »

2009 – The Year of Immigration Compliance

March 18, 2009

Tighter government oversight over the H-1B visa program and permanent employment-based immigration expected.

On October 8, 2008, the U.S. Citizenship & Immigration Service (USCIS) released a report that 13% of all H-1B petitions filed on behalf of U.S. employers are fraudulent. The same report also stated that another 7% of those petitions contain some sort of technical violation. The report’s conclusion states: “Given the significant vulnerability, USCIS is making procedural changes, which will be described in a forthcoming document.”

Continue reading "2009 – The Year of Immigration Compliance" »

ALJ Finds H-1B Employer liable for Back Wages and Retaliatory Discharge

March 16, 2009

An Administrative Law Judge (ALJ) of the Department of Labor (DOL) recently ordered the employer of an IT company to pay the alien beneficiary’s unpaid salary for the full term of the H-1B visa with interest, an amount for his monthly health, dental and vision insurance benefits, an amount for his unpaid annual 401(k) contributions with interest, his litigation travel expenses, and ordered the return of his work experience certificate and H-1B extension approval notice.

The Petitioner filed an H-1B nonimmigrant petition on behalf of a Chinese national to work in an IT specialty occupation. The filed H-1B petition contained a certified Labor Condition Application (LCA) which detailed the salary the alien beneficiary was to be paid and made several other attestations that the employer acknowledged. The H-1B program contains strong provisions to ensure that U.S. and foreign workers are protected. Employers must guarantee that U.S. workers will not be adversely affected upon the hiring of an H-1B professional. For instance, a U.S. employer using the program must also guarantee that (1)the foreign professional will not adversely affect the working conditions of U.S. workers; (2) the foreign professional will be paid the greater of the job’s actual wage rate or the prevailing wage rate throughout the entire period of authorized employment; (3) U.S. colleagues will be given notice of the foreign professional’s presence among them; (4) there is no strike or lockout at the worksite; and (5) the position requires a professional in a specialty occupation and the intended employee has the required qualifications.

The problem arose when the alien beneficiary received no work and no pay. The alien beneficiary came to the United States to seek work in a specialty occupation; however, the investigation conducted by the DOL illustrated that the petitioning company never really had any work for the alien worker. The evidence indicates that the petitioning company brought the H-1B worker to the U.S. intending to contract his labor out to other entities, rather than to use the worker’s labor directly in the business. With this plan, the petitioning employer was more of an employment broker than a traditional employer, and would not pay the worker until it collected the money from the entities that actually utilized the worker’s professional skills. This practice is often referred to as “benching.” Benching is a violation of the Immigration and Nationality Act (INA) and accordingly forbidden by the H-1B nonimmigrant visa program. The alien worker was in the U.S., not working and not receiving any type of salary, health insurance or other benefits that were guaranteed by his employment contract and by his signed and certified LCA. The record shows that the alien worker kept in contact with several of his employer’s staff and was never told that his work was inadequate or that the employer intended to terminate his employment.

After much confusion and frustration, the alien worker contacted the DOL and submitted a complaint about his employer not paying his salary. The alien worker was advised to wait a while to see if he would be placed on a job; however, that never happened. The DOL then went forward with their investigation and uncovered a lot of information that indicated that the employer was not following or obeying the various regulations involved with the H-1B program. As a result of the alien worker filing the complaint with the DOL, the employer attempted to retaliate and revoke/terminate the alien worker’s H-1B visa. In order to terminate H-1B employment, which would absolve the company from its liability to pay the worker, there must be a meeting of the minds between the employer and the alien worker that employment has ended, and notice to the United States Citizenship and Immigration Service (USCIS) of the termination, and if appropriate, money for the alien worker to return home. None of these actions occurred in this case. The employer alleged that they had already terminated the alien worker before the complaint was filed, and alleged that they purchased a ticket back to China for the worker, but after investigation, these allegations were proven false.

As a result of the investigation, the Administrative Judge ordered the employer to pay the alien worker his salary for the authorized period of his H-1B visa with interest, an amount for his health, dental and vision benefits for the same period, an amount for his 401(K) annual contributions, an amount for his litigation travel expenses, and among other things, the return of the alien worker’s H-1B extension approval notice, so that he may seek work with another H-1B sponsoring employer.

DOL Administrative Review Board orders payment of back wages to H-1B visa holder

January 21, 2009

The Department of Labor’s (DOL) Administrative Review Board (ARB) recently upheld the final decision of an Administrative Law Judge (ALJ) who found that the petitioner failed to pay the H-1B beneficiary the required wage under the H-1B provisions of the Immigration and Nationality Act (INA).

The petitioner, a not-for-profit corporation that operates medical clinics sought the expertise of the beneficiary, a medical doctor. After interviewing the beneficiary, a “Physician Employment Agreement” was signed which reflected an annual wage of $125,000. Thereafter, an H-1B petition was filed to hire the beneficiary as a full time medical doctor with H-1B non-immigrant status for three years. A Labor Condition Application (LCA) was filed along with the petition on behalf of the beneficiary listing the prevailing wage as $118,222 for the position. The beneficiary began working for the petitioner in June 2004 and was allegedly terminated in March 2005. During the course of the beneficiary’s nine-months of employment, he was paid a total of $49,000 in wages. The $49,000 (or $65,333.33 per year) falls below both the $125,000 per year wage that the beneficiary contracted for and the prevailing wage of $118,222 listed in the LCA. The beneficiary thereafter reported the wage violation to the DOL’s Wage and Hour Division who conducted a hearing and entered a decision in favor of the beneficiary. The petitioner thereafter sought review of the decision by the ARB.

The ARB found the petitioner liable for back wages calculated using the prevailing wage rate of $118,222 per year for the beneficiary’s nine-month employment during which time he worked as assigned and made himself available for work. According to the regulations, when an employer signs and files an LCA, he is attesting that for the entire “period of authorized employment” the listed wage rate will be paid to the H-1B non-immigrant. One of the ways in which an employer may escape liability is if they effect a bona fide termination and inform the Department of Homeland Security (DHS) immediately, and where appropriate provide the nonimmigrant employee with payment for transportation home. In this case, a bona fide termination did not occur until November 2005, when DHS was informed of the revocation of the H-1B petition. Accordingly, the petitioner was liable for payment of wages until the time of termination. The petitioner should have paid the beneficiary a total of $88,666.47 in wages for the nine months in which he worked.

In summary, the ARB found the petitioner liable to the beneficiary for back wages in the amount of $39,666.47. Additionally, the beneficiary is entitled to pre- and post-judgment interest.

Future Rule Tightening by the U.S. Department of Labor

August 14, 2008

The U.S. immigration system is constantly changing. At a recent stakeholders meeting, the U.S. Department of Labor (DOL) announced several upcoming changes to the Labor Certification and Labor Condition Application process.

Expect More PERM Audits
The DOL announced that with Backlog Elimination Centers (BECs) closing, the DOL will now be now focusing its resources on parts of the PERM regulations that were not focused on earlier, including audits and supervised recruitment. Since April 2007, Immigration attorneys have seen a spike in PERM audits by the DOL. It looks like Audits are going to be commonplace from now on. DOL announced that both targeted and random PERM audits will continue. The DOL stated that the 60 to 90 day timeframe discussed in the preamble to the PERM regulation is not binding and is irrelevant if there is an audit. Therefore, once a case has gone into audit, it will most likely not be adjudicated within the 60 to 90 timeframe.

As of July 15th, the DOL was working on cases that have not been audited with a priority date of April 2008. Currently, there is only one Audit queue. The DOL does not maintain separate queues for random and targeted audits. As of Mid July, DOL was working on audited cases with Priority dates of March 2007.

H-1B LCAs will be scrutinized more closely
The DOL also stated that Labor Condition Applications (LCAs) associated with the H-1B filing process will be scrutinized more closely beginning this fall. Currently LCAs are approved within a matter of seconds once they are applied for through the DOL’s online application system. The DOL expects such applications to take up to 7 days to be reviewed and certified by the DOL. If alternate wage surveys are submitted with the LCAs, the certification times would be even longer. Therefore, the days of starting a new H-1B petition in a couple of days pursuant to a change in employer will soon come to an end.