U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2014. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. After today, USCIS will not accept H-1B petitions subject to the FY 2014 cap or the advanced degree exemption.

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2014 cap-subject petitions received through April 5, 2013. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process. Also, USCIS is currently not providing the total number of petitions received, as we continue to accept filings today. USCIS will continue to accept and process petitions that are otherwise exempt from the cap.
USCIS will provide more detailed information about the H-1B cap next week.

We are disheartened to see that USCIS is not basing their count on a first come first serve basis.  If the cap is open and your case is received before the cap is exhausted, you should be guaranteed that your case has been accepted for processing.  We are not in favor of the computer-generated random selection lottery approach that USCIS has taken this filing season, where all cases received through April 5th will be put into a lottery.  This creates tremendous uncertainty for employers who planned in advance…Just another sign that we are seriously in need of H-1B reform and a process that permits business and the economy to regulate the process.

We will keep you posted as more information is released.

By:  Timothy Sutton, Communications Editor

Kansas Senator Jerry Moran (R-Kan.) has introduced a Senate Bill named S.3217 Startup 2.0, a bill to jump-start economic recovery through the formation and growth of new business, and for other purposes. Numerous senators support Startup 2.0, which will infuse the skilled labor market with an additional 50,000 visas for immigrants with post-baccalaureate degrees in any field listed with the Department of Homeland Security STEM Designated Degree Program (science, computers, and medicine). Applicants can be students seeking degrees or professionals practicing in any of the enumerated STEM fields.

Additionally, Startup 2.0 allocates 75,000 visas for qualified entrepreneurs who (1) hold a nonimmigrant visa or have or will complete a STEM listed degree, (2) register a business that employs two or more full-time non-relative employees and invests or raises at least $100,000 that (3) grows the business to an average of five employees within a three year period.

At first glance, Startup 2.0 is a positive indicator that immigration reform may be shifting toward pro-business legislation. This bill would create access to citizenship for educated foreign entrepreneurs who may lack the funding necessary to apply for an EB-5.  Startup 2.0 may also free up the quota on H1-B visas, particularly the Master’s degree exception. The current H1-B quotas as of May 18, 2012 are 42,000 for the H-1B regular cap (65,000 quota) and 16,000 for the US Master’s Degree cap (20,000 quota).  The cap is expected to be reached within 2-3 weeks.

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By:  Timothy Sutton, Communications Editor

The Hamilton Project, at the Brookings Institution held a forum on U.S. immigration on May 15, 2012. US Davis Economist, Giovanni Peri, purposed a radical overhaul to the entire immigration system. In short, Peri proposed a national auction system wherein employers bid for employee visas and proceeds of these sales fund local healthcare and education. The auction prices would be set with a reserve to ensure a minimal guaranteed income stream. Uncapped, the market would dictate the number of visas issued annually. This proposal seems to find a common ground between business needs and government regulation, benefiting the low-skilled labor market.

Auctioning low-skilled labor visas should help reduce the population of roughly 11.5 million illegal immigrants. Employers will be able to hire a legal workforce up to the point where auction prices for visas offset low wage savings. At that time, I-9 audits and workplace raids should continue to deter further hiring of illegal immigrants. This larger, stable and legal temporary workforce will help stabilize the economy. Changes are welcomed for companies like 3M that recently experienced a “brain drain.” 3M has been outsourcing science and technology jobs to Asia, citing the instability of the low skilled labor market they rely on to support their laboratories, manufacturing, research and development.

While Peri’s proposals are likely years away from actually being introduced into legislation, public officials like Senator John Cornyn continue to push for business friendly immigration. Senator Cornyn recently introduced legislation that would add 85,000 H-1B temporary visas issued annually to foreign-born engineers, mathematicians, scientists and other high-tech workers. Cornyn reminded the Senate, “We have to remember how this country was built. All of us are sons and daughters of immigrants that showed up here and made our way. We’ve cut off that flow.”

For continued coverage of proposed immigration reform and legislation, as well as the latest developments in immigration politics, subscribe to our blog and immigration and I-9 newsletters here.

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USCIS is seeking the OMB (Office of Management and Budget) to approve a proposed rule that would require employers to pre-register before filing an H-1B cap petition.  Public comment will be sought on this issue and details are not being revealed at this time until it is published which could take several months.

What is known is that USCIS asserts that this will streamline the H-1B cap filing process by asking employers to register online and obtain a cap number before submitting a cap subject petition.  USCIS is suggesting that a system such as this be put in place for other petitions that are subject to an annual cap.

The Ombudsman in his report this year suggested that USCIS begin developing the system and with the plan to have it up and running by fiscal year 2012.  A plan such as this has been suggested in the past to deal with the high volume submissions of H-1B cap cases (which certainly hasn’t been an issue in the last 2 years).  We will keep you posted on any further developments concerning this issue.

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.