Yes – it’s the season to start preparing H-1B “cap” filings again for Fiscal Year 2011.

The USCIS FY starts on October 1st each year. Thus, fiscal year 2011 starts on October 1, 2010 and runs through September 30, 2011.  Regulations permit cap subject filings 6 months in advance of the October start date for cases to be received at USCIS on April 1, 2010.

The following are suggestions to help you for the upcoming cap season.  Our suggestions are based on existing law, as well as USCIS guidance and our experience from prior years.

USCIS frequently issues updated guidance with slight procedural variations for each fiscal year. For example, the LCA process changed in July – note it is taking sometimes up to 7 days to obtain an approval.  In case of a denial such as problems with verifying an employer’s EIN# which is quite common unfortunately, obtaining an LCA may take even longer.

Immigration Solutions is accepting H-1B cases for FY2011 at this time.  We have a team of experienced attorneys, case managers and paralegals in our business unit who are currently working on new H-1B cap-subject cases.  The cases will be prepared in advance and will be transmitted for delivery on March 31, 2010, for USCIS filing on April 1^st.  In order to file, it is necessary to have an appropriate job offer from a U.S. employer who is willing to sponsor the H-1B case.

The USCIS has increased scrutiny on all H-1B cases and imposed tougher standards, particularly those filed in the IT consulting industry and for software companies. These new standards also affect healthcare staffing agencies that place workers at 3^rd party jobsites.   The standards for approval have become more stringent. It is necessary to recognize this trend when preparing new H-1B cap cases for filing.  For this reason, we recommend that you work with an experienced law firm that specializes in employment-based immigration. Click here to contact us for your new H-1B case now.

NOTE:  Immigration Solutions is sponsoring a free teleconference on February 10^th that will address the tougher standards in the H-1B category.  For more on this and to RSVP, we link to our blog

USCIS has updated the cap count and it’s very close to being met with approximately 1300 cap numbers remaining.

The latest count shows 56,900 cap cases have been filed.  Out of the 65,000 available cap numbers, 6,800 are set aside under trade agreements, and only 1,300 numbers remain as of this count.  The advanced degree category has been met.  USCIS continues to accept cases at this time until the cap is reached.

As a reminder – Here are the types of employees that may qualify for an H-1B visa:

1. International students working on an EAD card under an OPT or CPT program following the  attendance    of a US school
2. International employees working on a TN that may need to change their status to H-1B in order to pursue a green-card case
3. International employees in other visa classifications (H-4, L-2, F-1, J-1)
4. Possible international employees presently living abroad

We link to the recent announcement

As the clock is ticking on the H-1B quota, USCIS informed there are more than 9,000 H-1B numbers still available, but remember that 6,800 of these numbers are reserved for citizens of Chile and Singapore under the Free Trade Agreements that the USA has with these countries. The real amount of remaining H-1B numbers is only about 2,600. The H-1B cap could be reached early in December.

Our phone has been ringing off the hook with last minute questions and requests for expedited handling. Our healthcare clients who are eternally waiting for nurses in the retrogression pipeline want to file H-1B cases for desperately needed nurses. They ask, “Why does it seem so complicated – most of our foreign nurses who are onboard, and those we want to hire, already have BSN degrees?”

Registered Nurses are generally not eligible for H-1B visas because all states permit nurses to be licensed with less than a 4 year bachelor’s degree. However, in certain instances, it may be possible to obtain an H-1B visa for a nurse where the petitioning employer can prove the following:

1. A bachelor’s degree or higher degree or its equivalent is normally the minimum requirement for entry into the position;
2. The degree requirement is common to the industry for parallel nursing positions;
3. The employer normally requires a degree or its equivalent for the position; or the nature of the position’s duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s degree or its equivalent.

What Positions Qualify and will meet the Requisite Requirements?

Category 1: The first category of nurses who generally will be approved is the certified advanced practice registered nurse (APRN) category that includes:

· Clinical nurse specialists (CNSs)
· Certified registered nurse anesthetist (CRNAs)
· Certified nurse-midwives (CNMs)
· Certified nurse practitioners (NPs) fall within this category.

If an APRN position requires the employee to be certified in that practice, the nurse must possess an RN, at least a Bachelor of Science in Nursing, and some additional, graduate-level education. CNSs include Acute Care, Adult, Critical Care, Gerontological, Family, Hospice, Palliative Care, Neonatal, Pediatric, Psychiatric and Mental Health-Adult, Psychiatric and Mental Health-Child, and Women’s Health nurses. NPs include Acute Care, Adult, Family, Gerontological, Pediatric, Psychiatric & Mental Health, Neonatal, and Women’s Health nurses.

Category 2: The second category of nurses who may qualify for the H-1B are those in administrative positions requiring graduate degrees in fields such as nursing or health administration.

Category 3: A final, more subjective group that may receive H-1B approval includes those who have a nursing specialty such as critical care and peri-operative nurses, or who have passed examinations based on clinical experience in school health, occupational health, rehabilitation nursing, emergency room nursing, critical care, operating room, oncology, and pediatrics, ICU, dialysis, cardiology – but who are not APRNs.

In the above instances, the employer must show that the nature of the particular position is so specialized and complex that one would normally expect the person performing the duties to have attained a bachelor’s (or higher) degree, or its equivalent.

What is Required of the Employer?

1. The employer must offer a position as a Clinical Nurse Specialist (CNS), Certified Registered Nurse Anesthetist (CRNA), Certified Nurse-Midwife (CNM), or a Certified Nurse Practitioner (APRN-certified) Critical Care and the nurse holds the certification

2. The employer must offer a position working in an administrative position ordinarily associated with a Bachelors Degree, such as Charge Nurse or Nurse Manager or the more subjective group mentioned above in Category 3.

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Remember, for citizens of Canada and Mexico, the TN visa or classification is available under the North American Free Trade Agreement (NAFTA) as an alternative to the H-1B visa for registered nurses and other professions listed in NAFTA.

Reported in Computerworld

USCIS officials are taking H-1B enforcement from the desk to the field with a plan to conduct 25,000 on-site inspections of companies hiring foreign workers over this fiscal year.

The move marks a nearly five-fold increase in inspections over last fiscal year, when the agency conducted 5,191 site visits under a new site inspection program. The new federal fiscal year began Oct. 1.

Tougher enforcement from U.S. Citizenship and Immigration Services comes in response to a study conducted by the agency last year that found fraud and other violations in one-in-five H-1B applications.

In a letter to U.S. Sen. Charles Grassley (R-Iowa), Alejandro Mayorkas, director of the Citizenship and Immigration Services, said the agency began a site visit and verification program in July to check on the validity of H-1B applications. Mayorkas’ letter was released on Tuesday by Grassley.

“The inspection program determines] whether the location of employment actually exists and if a beneficiary is employed at the location specified, performing the duties as described, and paid the salary as identified in the petition,” said Mayorkas in his letter to Grassley.

…As part of its enforcement effort, Mayorkas said the Citizenship and Immigration Services has hired Dunn and Bradstreet Inc., which provides credit reports among other services, to act as “an independent information provider” and help verify information submitted by companies hiring H-1B workers.

Links to other related articles:

ICE Asst. Secretary Announces 1,000 New Workplace Audits

Anger up, Visas Down

Tech workers take H-1B case to supreme court

Share your thoughts with us on this.

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.

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.

As of 6/19/09, 44,500 H-1B cap-subject petitions have beenr received by USCIS for FY 2010 and 20,000 petitions seeking the advanced degree exemption.  As of this writing, USCIS will continue to receive cap subject and advanced degree petitions until the cap is met.

As of 04/28/2009, USCIS reports that it has received 45,000 petitions towards the 65,000 H-1B quota for FY 2010.  The agency has already received 20,000 or more cases that are eligible for the advanced degree quota exemption.  They will continue, however, to accept both advanced degree and H-1B cap filings until the entire annual H-1B quota is reached.

H-1B numbers have been used very slowly since April 1st.  Filings are expected to increase in coming weeks as students complete their degrees and become newly eligible for H-1B status.  Additionally, many employers may wish to change the status of F-1 students currently on Optional Practical Training (OPT) earlier than planned because of the unexpected availability of numbers.  Employers should assess their further FY 2010 H-1B hiring needs ASAP to take advantage of the open quotas and to properly prepare their cases.

WASHINGTON – April 8, 2009, USCIS announced it continues to accept H-1B nonimmigrant visa petitions subject to the fiscal year 2010 (FY 2010) cap. USCIS will continue to monitor the number of H-1B petitions received for both the 65,000 regular cap and the 20,000 U.S. master’s degree or higher educational exemption cap.

Should USCIS receive the necessary number of petitions to meet the respective caps, it will issue an update to advise the public that, as of a certain date (the “final receipt date”), the respective FY 2010 H-1B caps have been met. The final receipt date will be based on the date USCIS physically receives the petition, not the date that the petition is postmarked. The date or dates USCIS informs the public that the respective caps have been reached may differ from the actual final receipt date.

For more information on this story:
Read this article from USCIS.gov