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USCIS notes record low H-1B filings for FY 2012

By Atty. Daniel Hanlon

The annual opening of the H-1B visa quota on April 1, 2011, made 65,000 new H-1B visa numbers available for new employment beginning on October 1, 2011, with an additional 20,000 visas available for graduates of Master’s programs and higher in the US.

Unlike in recent years passed, however, the USCIS has not seen a deluge of filings on April 1st, where thousands of employers prepared to file applications on behalf of their employees on the earliest date on which an employer may submit a new petition. While the reason for this trend is debatable, most immigration practitioners agree that the filing levels will increase in the coming months and the quota will once again be exhausted well before the end of the fiscal year on September 30, 2012.

Last week, the USCIS announced that as of April 7, 2011, approximately 5,900 H-1B Bachelor’s cap-subject petitions, and 4,500 Master’s cap-subject petitions were receipted. In FY 2011, which most assumed was a worse economic environment, the number of H-1B visas used were 13,500 and 5,600; respectively, which were themselves down substantially from over 40,000 and 20,000 for FY 2010 at the same time. Some have speculated that the slow-down is due to USCIS’ lower rates of approval on H-1B petitions, with seemingly incongruous denials of H-1B Petitions that would easily have been approved in the past. Others have pointed to market uncertainty and the Government’s failure to pass a working budget as the reason for the slow-down.

Since the sunset of the provisions of the American Competitiveness in the 21st Century Act (AC-21) in 2002, which had raised the annual number of H-1B visas to 195,000 for a period of three years, the “H-1B cap” has been reached in each of the several years leaving thousands of professional workers and employers seeking to hire them out of business.

The annual cap of 65,000 is grossly inadequate to accommodate businesses, as has been made obvious over the past few years, with last year’s cap reached by December 2010, only three months into the fiscal year, even while the US economy was barely clawing its way out of a deep recession.

Employers seeking to hire an H-1B professional must establish that the prospective employee: (1) has a bachelor’s degree; (2) seeks to come to the United States to perform services in a position requiring a bachelor’s degree or higher for entry into the position; and that (3) the degree is directly related to the nonimmigrant’s field of endeavor. The U.S. employer or sponsor must demonstrate a need for a worker and attest that insufficient domestic labor is available to fill the need. Of course, the U.S. employer must also establish his ability to pay the “prevailing wage” for the position.

If the intended worker is overseas, he may obtain an H-1B visa from the U.S. Embassy upon USCIS approval of a Petition in the U.S. A nonimmigrant visitor in the United States, for instance on a B-2 visa, may apply for “change of status” from visitor to H-1B professional worker. The new status will be indicated on the person’s I-94, but is not a travel document. In order to travel and reenter the United States in H-1B status, a visa must be obtained at a U.S. Embassy or consulate abroad.

The number and types of occupations that will qualify people for classification as H-1B professional workers are constantly expanding. With the development of so many new highly specialized occupations in the high-tech industries, more and more H-1Bs are necessary to fill the demand, and to maintain the status quo for more traditional occupations such as accountants and engineers.

Although certain categories of workers are exempt from the H-1B cap, there is no doubt that the 65,000 H-1B visas available for most jobs in “specialty occupations” and the 20,000 additional “Master’s Cap” visas most likely be used up by early-fall. Hopefully, by this month’s end the Government will pass a reasonable budget to assuage employers’ concerns over market conditions and allow them to hire necessary skilled workers without further hurting their businesses.

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Daniel P. Hanlon has been practicing Immigration and Nationality Law exclusively since his admission to the California State Bar in 1993. Mr. Hanlon is the founder of Hanlon Law Group, a P.C. He has argued many important immigration appeals before the United States Court of Appeals for the Ninth Circuit, and successfully challenged INS rulings in the United States District Court for the Central District of California. Mr. Hanlon’s experience spans several years, and covers a broad range of immigrant and nonimmigrant visa petitions, including those for working professionals, multi-national managers, treaty-traders, investors, athletes and entertainers. Mr. Hanlon also has vast experience in all family-based Petitions and in labor certification applications under both Department of Labor-supervised recruitment and Reduction in Recruitment methods. Over the past several years, Mr. Hanlon has tried thousands of cases in Immigration Court involving Requests for Asylum in the United States, Cancellation of Removal, and Waivers of Grounds of Removability. Mr. Hanlon graduated “With Distinction” from the University of Michigan at Ann Arbor in April 1988, with a Bachelor of Arts degree in English. In May 1993, Mr. Hanlon graduated from Loyola Law School in Los Angeles. He is a member of the American Immigration Lawyers Association, of which he sits on the Investors Committee. Mr. Hanlon has also appeared as a speaker before the Los Angeles County Bar Association, Immigration Section, on the 1996 immigration law amendments. Hanlon Law Group, P.C. is headquartered at 225 S. Lake Avenue, Suite 1100, Pasadena, CA 91101, tel: (626) 585-8005, fax: (626) 585-8595, website: www.hanlonlawgroup.com, email: visas@hanlonlawgroup.com.

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