As of October 25, 2009, approximately 52,800 H-1B cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. Seven months into this fiscal year and there are still H-1B visas available – but not for long!

Any H1-B petitions filed on behalf of a foreign national with an advanced degree will now count toward the general H1-B 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to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

The H-1B Petition is still a valid option for professionals with degrees in IT, Engineering, those in science and the arts, as well as many healthcare workers including PTs, OTs, Physicians, Pharmacists,  AHPs, and some nurses.

When considering Nurses for H-1B Visas, these are the threshold issues and key questions:

For Nurses:

1. The nurse must hold at least a Bachelor’s Degree in Nursing (a BSN), and

2. The position must normally require a Bachelors Degree.

For the Employer:

A. The hospital is offering the nurse a position as a Clinical Nurse Specialist (CNS), Certified Registered Nurse Anesthetist (CRNA), Certified Nurse-Midwife (CNM), a Certified Nurse Practitioner (APRN-certified) or positions in Critical care where the nurse holds certification;

B. If the nurse will be working in an Administrative position ordinarily associated with a Bachelors Degree, such as Charge Nurse or Nurse Manager;

C. If the nurse will be working in one of these specialties: peri-operative, school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology and pediatrics. And the hospital will attest that these roles are only offered to those with Bachelors Degrees. Some magnet hospitals have the BSN as its standards, and these make great destination hospitals for RN H-1Bs.

Contact Immigration Solutions if you are seeking representation to assist you with your H-1B case filings.  We have a professional team ready to handle your casework with reasonable and fair fees.  We specialize in IT, Engineering and Healthcare immigration, amongst other business sectors – both in the US and Canada.

The Department of Labor will be centralizingi prevailing wage processing.  The agency is scheduled to open its prevailing wage center in Washington, DC to begin centralized processing of PERM, H-1B, H-1B1 and E-3 NIV programs as of January 1, 2010.

Prevailing Wage Requests will be submitted to the National Center rather than to the State Workforce Agencies (SWAs).

The processing times from state to state vary widely at the present time and the determinations are not always consistent.  We’re not sure what to expect with the new program.  At the onset there will probably be longer processing  times, though DOL is assuring that this should result in more consistent prevailing wage determinations over time.

It has been reported that some 20,000 more unannounced employer site visits will be taking place over the next few months by FDNS, but this time it will be to employers who have filed H-1B extensions to determine if there is ongoing compliance by the employer.

It’s been asked, do they have the legal right to do this – just show up and demand to speak with a company’s representative or executive officer?  Yes, they do, although it hasn’t been acted upon to the extent we are now observing until your $500 Fraud Detection and Prevention government filing fee created the revenue to employ some 6,500 FDNS agents.  Up until now, USCIS or DOL agents have always been in a position to do onsite employer visits when they thought necessary – but it’s been rarely acted upon.  Presently, you can add ICE and FDNS to this group – because we’re in a hunt ‘em down, enforcement climate – and it’s the employers who are being targeted.

So, how does an employer handle this?  We don’t recommend that you wait to ask this question and to get your documentation organized when the agent comes knocking.  This is serious business now, and they are not just targeting the small to medium-size employer or the employer who has financial issues and can’t respond to requests to prove the ability to pay the offered wage to the employee.

Therefore, it is recommended that you discuss this with your immigration counsel now.  If you don’t have a representative, we are available to walk you through a program that will not only assist you in organizing your Public Access information and files, but we will give you the tools to prepare the company representative that will handle the agent site visit and to prepare them for the questions that will be asked, what documentation should be organized now and beeasily accessible to present to the agent when requested – and overall, how to successfully respond to a government site visit at your place of employment.

We’ve had several blog posts on the reverse brain drain issue.  This is a very interesting post that we found on TechCrunch today by Vivek Wadhwa, an entrepreneur turned academic who is a Visiting Scholar at UC-Berkeley, Senior Research Associate at Harvard Law School and Executive in Residence at Duke University.  The writer expresses concerns as to what is occurring in the IT sector today and why the brightest and the best are deciding not to put down roots in the USA.

Vivek spent Columbus Day in Silicon Valley meeting a roomful of new Indian arrivals to the USA. The event was organized by Think India Foundation, a think tank that seeks to solve problems that Indians face.

When introducing the topic of skilled immigration, the discussion moderator, Sand Hill Group founder M.R. Rangaswami asked the obvious question. How many planned to return to India?  He was shocked to see more than three-quarters of the audience raise their hands.  One has to ask why would such talented people voluntarily leave Silicon Valley, a place that remains the hottest hotbed of technology innovation on Earth? Or to leave other promising locales such as New York City, Boston and the Research Triangle area of North Carolina?

What they learned was that the average age of the Indian returnees was 30 and the Chinese was 33. They were really well educated: 51% of the Chinese held masters degrees and 41% had PhDs. Among Indians, 66% held a masters and 12% had PhDs. These degrees were mostly in management, technology, and science. Clearly these returnees are in the U.S. population’s educational top tier—precisely the kind of people who can make the greatest contribution to an economy’s innovation and growth. And it isn’t just new immigrants who are returning home, we learned. Some 27% of the Indians and 34% of the Chinese had permanent resident status or were U.S. citizens. That’s right—it’s not just about green cards.

We link to a letter co-authored by the Semiconductor Industry of America (SIA) and the Industry of Electrical and Electronic Engineers (IEEE) to the Congressional Subcommittee on Immigration.  The letter calls for sensible immigration reform – reforming quotas to match industry needs – reducing the ever-growing visa wait times for green-cards for skilled worker.

It’s hard to imagine that USCIS could get any more enforcement oriented than this filing season, being totally preoccupied with fraud.  Computerworld reports that Senator Grassley is asking immigration officials to toughen their demands for evidence from companies hiring visa workers.

His letter to USCIS Director Alejandro Mayorkas, released Tuesday, also comes just prior to the start of the new fiscal year, Oct. 1 and the release of 66,700 H-1B visas petitions, a number well short of the cap, applied for since April 1, the start of the annual petition process.

In a statement accompanying the release of his letter to Mayorkas, Grassley said, that “Employers need to be held accountable so that foreign workers are not flooding the market, depressing wages, and taking jobs from qualified Americans. Asking the right questions and requesting the necessary documents will go a long way in getting out the fraud in the H-1B program.”  For more on this, please refer to above link and Grassley’s letter to USCIS.

For what may by the first time, the number of H-1B petitions withdrawn by applicants or rejected by U.S. authorities is exceeding the number of new petitions for the visas – as published in Computerworld 7/22/2009.  Employers are finding it impossible to respond to the burdensome and extensive requests for additional evidence, and are withdrawing their petitions in this season of high scrutiny and enforcement.

We link to this article.

For the first time in several years the H1B visa program, once the most sought after among Indian professionals, is unlikely to reach its cap of 65,000 before the start of the 2010 fiscal with nearly 20,000 slots lying vacant thanks to the tattered US economy.

The US Citizenship and Immigration Services reports as of August 7, 2009 that it has received approximately 49,400 H-1B petitions counting toward the Congressionally-mandated 65,000 cap, more than four months after it started accepting applications for visas for the 2010 fiscal year beginning  October 1st

This is in contrast to previous years when the USCIS had to resort to a computerized lottery.

We link to the article in Business Standard.  Contact us for your H-1B cases and questions.

We’ve been covering this topic at Immigration Solutions for quite awhile.  Canada has figured out how to implement a much more user friendly immigration system to navigate than the USA.  Have a listen to our audio conference Living and Working in Canada

The Immigration Impact article states:  “If we needed any proof that our dysfunctional immigration system inhibits our economic growth, our neighbors to the north have provided us that proof. Canada is actively exploiting, to their economic benefit, our backlogged and broken immigration system. Canada is recruiting the best and brightest American-trained foreign nationals through a streamlined immigration process. After receiving a U.S. education, these talented foreign nationals are now contributing to Canada’s economic future instead of ours.”

Congress! – it’s time to wake up so that we stop “saying goodbye” to the brightest and best!

USCIS has received significant funding for a substantially increased volume of random site visits to employer locations.  Over the coming year, many thousands more employers will have USCIS knocking on their doors.

The FDNS (Fraud Detection and National Security Unit) of USCIS is expanding its manpower and its site visits to employers that hire foreign nationals.  Sometimes the employer is called in advance – and sometimes they are unannounced visits.  Also, many of these site visits can occur after the petition is approved.

FDNS visits are to verify the existence of the employer, discuss the information that the employer has provided to USCIS in their petition(s) and whether the foreign national(s) are working in compliance with the terms of their admission to the USA.  This information can also be used to determine whether or not a petition will be approved.  Typically, the FDNS officer will wish to speak with the HR representative, may want to also speak with the sponsored worker; the officer could have a copy of the petition and will endeavor to verify the information contained in the petition.

What’s the “take away” on this for employers:  It is important that you contact your designated immigration professional should you receive notification of a site visit… AND… make sure that you are working with well-informed immigration counsel that have experience in employer compliance issues.  Immigration Solutions does, and we link to our Employer Compliance page on our website.

We link to one employer’s experience (as posted on AILA Infonet).

Immigration Works USA has released its Talking Points today on the essentials that must be in an immigration reform bill for US employers.

Here’s a list of other talking points as well.

What are your thoughts?