Pearl Immigration NewsFlash
General Release Vol. 129 (December 6, 2011)

H-1B Cap for FY 2012 Reached

U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory numerical limit (cap) of 65,000 for fiscal year (FY) 2012. November 22, 2011, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2012; properly filed cases are considered received on the date that USCIS physically receives the petition, not the date the petition was postmarked.

A month earlier, USCIS had received more than 20,000 H-1B petitions filed on behalf of persons under the advanced degree exemption. USCIS will continue to accept and process cap-exempt petitions (those from institutes of higher learning and nonprofit or governmental research organizations) and petitions filed on behalf of current H-1B workers, which are petitions that:

• extend the amount of time a current H-1B worker may remain in the U.S.;
• 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.

Global employers now affected by the U.S. cap may want to consider hiring potential H-1B employees to work in other countries. Contact your Pearl attorney for guidance in specific cases.

The USCIS announcement is available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=f0a78614e90d3310VgnVCM100000082ca60aRCRD&vgnextchannel=68439c7755cb9010VgnVCM10000045f3d6a1RCRD.

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Employers May Bundle L-1 Filings

USCIS said recently that it recognizes that businesses may need to utilize the L-1 nonimmigrant classification to temporarily move multiple employees to the United States for particular projects that require the employees' specialized knowledge. While each L-1 petition must be considered on its own merits, USCIS will consider multiple applications grouped into "bundles" as part of an effort to streamline and improve adjudication.

For USCIS to consider the bundle, all included L-1B petitions must be for employees working on the same project, at the same location and who have the same specialized knowledge duties. Further, they will consider petitions for L-1A managers included with the bundle if they will be managing the L-1B beneficiaries working on the project. USCIS will also consider any qualifying dependents included in the bundle.

USCIS has offered filing tips for bundled L-1 petitions, available at http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=e2260dbba1563310VgnVCM100000082ca60aRCRD&vgnextchannel=bfd10b89284a3210VgnVCM100000b92ca60aRCRD.

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House Votes to End Per-Country Limits on Employment-Based Immigrant Visas

On November 29, 2011, the U.S. House of Representatives voted 389-15 in favor of ending per-country numerical limits on employment-based visas and raising those on family-based visas from seven to 15 percent. The bill does not raise the number of visas issued but would eliminate the current provision stating that employment-based visas issued cannot exceed seven percent of the total for any one country; instead, permanent residence visas (green cards) would be handled on a first-come, first-served basis. Groups representing immigrants said the bill would do little to resolve pressing immigration issues; however, they applauded Congress for showing it can act. Currently, USCIS issues about 140,000 green cards a year to foreign nationals working in the United States, often after getting degrees from U.S. universities.

Kevin Richards, Senior Vice President of Tech America, which represents the technology industry, said in a letter to lawmakers that the lengthy waiting periods for people trained and working in the United States "are contributing to a reverse brain drain in the U.S. as frustrated professionals opt to return to their home countries to pursue their professional ambitions." U.S. employers are prohibited by law from hiring foreign workers unless they show there are not sufficient U.S. workers willing and able to take the jobs.

The measure is likely to benefit skilled Indian and Chinese workers and high-tech companies in the United States. Similar legislation is currently before the Senate Judiciary Committee as S. 1857, the Fairness for High-Skilled Immigrants Act. For the text of H.R. 3012, the House bill of the same name, see http://www.gpo.gov/fdsys/pkg/BILLS-112hr3012rh/pdf/BILLS-112hr3012rh.pdf.

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DOL Current on PERM, H-1B Prevailing Wage Determinations

The Department of Labor's (DOL) Office of Foreign Labor Certification recently announced that PERM and H-1B prevailing wage determinations are now current and they expect H-2B prevailing wage determinations to become current imminently.

DOL explained that "current" has a different meaning depending on the program: In the PERM and H-1B programs, a prevailing wage determination is considered current when it is issued within 60 days of submission; for H-2B prevailing wage determinations, current is within 30 days of submission. The PERM program became current the week of October 23, 2011, and the H-1B program became current the week of November 6, 2011. DOL noted that the dates may be subject to change based on unanticipated actions, such as any additional judicial determinations or legislative actions, and added that appeals are being processed as resources allow, with priority placed on becoming current on initial prevailing wage determination requests.

The notice is available under "November 17, 2011," at http://www.foreignlaborcert.doleta.gov/news.cfm.

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F, M and J Visa Processing Resumes; Expedited Processing and Record Numbers of Students Announced

The Department of State (DOS) recently identified difficulties with its Consolidated Consular Database communications with the Student and Exchange Visitor Program's (SEVP) Student and Exchange Visitor Information System. DOS discovered this issue on November 14, 2011, and subsequently instructed embassies and consulates worldwide to temporarily halt the issuance of all F, M and J visas. SEVP and DOS resolved these difficulties on November 18, 2011, and the State Department instructed consular posts to immediately resume issuing the affected visas.

In a separate announcement on November 14, 2011, DOS stated that "[a]ll U.S. embassies and consulates expedite visa processing for foreign students to ensure qualified students are able to begin their academic program on time." According to DOS, the maximum wait for a student visa appointment is now less than 15 days worldwide. Foreign students may apply for their visas up to 120 days before their academic programs begin and the State Department encourages them to apply early.

According to the Institute of International Education (IIE), international students attending American colleges and universities rose to a record 723,277 in the 2010/11 academic year. The five percent rise over the previous academic year was fueled by a sharp increase in the number of Chinese students coming to the U.S. Chinese students increased by 23 percent altogether and by 43 percent at the undergraduate level. IIE reported that Chinese student enrollment rose to a total of nearly 158,000 students, almost 22 percent of the total international student population in the United States, making China the leading sending country for the second year in a row; students from India, the second largest international contingent in the United States, decreased by one percent to a total of nearly 104,000. IIE noted Department of Commerce statistics showing that international students contribute more than $21 billion to the U.S. economy through tuition and living expenditures.

According to IIE, the University of Southern California is the leading host institution for the 10th year in a row, with 8,615 international students in academic year 2010/11; University of Illinois at Urbana-Champaign hosts the second highest number of foreign students (7,991), with New York University a very close third (7,988). California remains the leading host state for international students (96,535, up 2 percent), followed by New York (78,888, up 4 percent) and then Texas (61,636, up 5 percent).

The notice announcing resumption of F, M and J issuances is available at http://www.nafsa.org/uploadedFiles/BM%20111-02%20combined.pdf. The notice announcing expedited student visa processing is available at http://www.state.gov/r/pa/prs/ps/2011/11/177132.htm. The notice announcing the IIE statistics and trends on international students is available at http://www.iie.org/en/Who-We-Are/News-and-Events/Press-Center/Press-Releases/2011/2011-11-14-Open-Doors-International-Students.

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Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers:

• USCIS Service Center processing times online:
  
  https://egov.uscis.gov/cris/processTimesDisplay.do
  
  
• Department of Labor PERM processing times:
  
  http://icert.doleta.gov/#fragment-2
  
  
• Department of State Visa Bulletin:
  
  http://travel.state.gov/visa/bulletin/bulletin_1360.html
  
  

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