Visa Numbers

Every country has a set amount of immigrant visas (green cards) that they get per year. (The DHS year starts on Oct 01). Thus a visa number must be available at the time when you get your green card. Naturally countries with huge populations (like India and China for Employment based, and Mexico for Family based) use up their visa numbers quickly and thus the people born from those countries have to wait longer. The USCIS gives visa numbers based on "Priority dates." Priority dates is the on which the USCIS receipts your case, ie the I-140 for Employment based and I-130 for Family based applications. This ensures that the first come application gets served first.

Immigration Laws have also devised categories. The Employment based categories are as follows:

Employment Based (EB) 1: No labor certification required. File only I-140 and I-485
Available for
L-1A Managers
Outstanding Professor or Researcher
Extraordinary Ability Aliens

EB-2 Labor Certification required
Available for
Advanced Degree Holders (at least a Master’s Degree)
Exceptional Ability

EB-3 Labor Certification required
Members of a Profession (at least Bachelor’s Degree)

EB-4 Religious Workers

EB-5 Investor (No labor certification or I-140 petitions. Instead file I-526)
Must invest $1 million in cities Or
$500,000 in areas of “Targeted Employment” and
Employ 10 full-time U.S. workers

The Family Based numbers are as follows:

NO WAIT: US Citizens’ spouse, parents and children under 21 have no wait time, and can come over or adjust status immediately

First Preference: Over 21 unmarried children of citizens

Second Preference-2A: Spouses, minor children (less than 21) of permanent residents (green card holders)

Second Preference 2B: Unmarried sons and daughters over 21 of permanent residents (green card holders)

Third Preference: Married sons and daughters of US Citizens

Fourth Preference: Brothers and sisters of adult citizens

Thus the wait time depends on your priority date, Preference Category and of course your country of birth.

For Employment based visas you can use either your country of birth or your spouse's country of birth.

The visa bulletin, published by the Department of State every month gives the dates/Preference category/country. To see the visa bulletin, click here:

http://travel.state.gov/visa/frvi/bulletin/bulletin_1360.html

H-1B lottery done

The USCIS has finished conducting the H-1B lottery for both the 20,000 and the 65,000 cases.

They have also "wait listed" certain cases, ie if the any chosen case is withdrawn or denied, these wait listed cases will fill their place. These cases will be held at the CIS office for now.

The CIS will now begin fee receipting and sending out the receipt notices. The cases not chosen will be returned. Since this involves a huge volume, the CIS stated that this process can take upto June 2nd. So this process will take about 6-10 weeks.

We will inform our clients immediately upon receipt of the receipt notices or the petitions back. Keeping our fingers crossed....

CAP and Name Check issues

H-1B cap

The CIS issued a preliminary report today that nearly 163000 H-1Bs have been filed for the ordinary cap, and 31200 for Master's Degree Candidates. The CIS will do the lottery of the Master's Degree Cap next week. The 11200 advanced Degree Holders not selected by that lottery will be put into the general lottery for the 65,000 people. For more on the OPT extensions, please see BLOG below

FBI-Name Checks

The CIS and FBI have reported that they have already eliminated all name checks pending for more than 4 years ago. Their goal is to eliminate:

For Name Checks pending more than 3 yrs------- May 2008


For Name Checks pending more than 2 yrs-------July 2008


For Name Checks pending more than 1 yr-------November 2008

98% of all Cases --------------------------------June 2009

The date for the name check is your receipt date for your 485 or N-400 petitions

US Master's Cap

The announcement by CIS yesterday that they have exceeded the 20,000 US Master's Degree holders for new H-1Bs was probably a big blow to many of us, because this is the first year that this has happened. Last year numbers were available until late April. Thus there will be a lottery for the US Master's Degree holders, and those that do not get in, will have their name put into the general category and have a second chance at the lottery. Yes, they also exceeded the 65K general quota.

While our Congress is determined to NOT pass any immigration legislation, the CIS has been trying to dangle a carrot (or should I say a poisoned apple) before the US Master's Degree holders' noses. Their OPT will be extended from 12 to a maximum of 29 months, provided the following condition precedents are met:

• Currently be participating in a 12-month period of approved post-completion OPT;
• Have successfully completed a degree in science, technology, engineering, or mathematics (STEM). Therefore if you have a BS- (even in say for example fine arts), you will be covered. But for the liberal arts majors, there is no hope. The Bush govt never patronized the arts anyways.
• Be working for, or accepted employment with, an employer enrolled in U.S. Citizenship and Immigration Services’ E-Verify program. E-Verify is a free, internet-based system operated in partnership with the Social Security Administration that helps employers to determine the employment eligibility of newly-hired employees;

This interim rule is effective April 08, 2008. CIS will accept comment until June 09, 2008 and thereafter issue the final rule.

Though this looks very promising, this is also a veiled attempt to get employers to enroll in the Bush Government E verify program. This program is voluntary still and attempts to make it mandatory has failed several court challenges. The reason behind this is that the E verify program is flawed, and result in discrimination against US Citizens of non white colors.

CONSTITUTIONAL DEFECT:

Under the 14th amendment of our Constitution the Government must give due process before curbing the rights of "any person" present in the United States in terms of their LIFE, LIBERTY AND PROPERTY. A US Master's Degree is a property right. The Government is denying the property right to work for graduates who are majoring in Business, Humanities, Arts, and Law. (Does Medicine fall under Technology?) These people are not STEMS, they are the seed to our economic development.

But then the Bush Government NEVER cared about the Constitution anyways!!!

A far better way to bridge the status gap issue of the OPT students would be to extend their status and enable them to work is simply to make the entire OPT system last for 29 months, no questions asked, for US Master's Degree Holders. Just ask any University how hard they have to try to get Master's Degree candidates in the first place!

H-1B Cap

Hopefully the last petitions have reached the Vermont and California Service Centers by now. Stay tuned for more on the lottery in this blog. I'll post them here as soon as they become available.

I cannot help but reflect on the CAP. In a year where the dreaded R word is echoed through out USA, when unemployment is at a record 5 year high, more H-1B s are being filed in 2008 than it was in 2007. Why? Because of the lottery. The employers know that only a portion of the petitions they file will statistically get in. This creates an artificial employment situation, one that is created by the Government rather than the free market economy. Employers have to project their need for the full year (until September 30, 2009) and calculate what chances they want to take with finding employees. This situation creates an artificial demand and supply.

Yet America was founded on the Laissez Faire system, and because of this system we have prospered, while Capitalism and then Socialism tumbled. We have let the market dictate our economy, whether its a bear or a bull market. Why then don't we just do away with the CAP, and let market forces dictate our employment based immigration? This is because the anti immigration forces, the very people who does not want a Government Controlled Economy, champion a restrictionist immigration policy. The net result is that Companies, without these professional workers, will just out source more work out of the US, resulting in less economic activity at home.

If we do not let free market economy dominate the US job market, can we then turn around and criticize Governments like Cuba who control every aspect of their economy?

H-1B Lottery

In the CIS' interim rule, multiple related or unrelated employers can file legitimate H-1Bs for the same beneficiary.
In other words, a single beneficiary CAN file with multiple different Employers, as long as all the jobs are legitimate.

But the same employer CANNOT file more than one petition for the same employee, even if they are for different positions.

Please also note that if the 20,000 US Master's Degree quota gets filled by April 05, then CIS will have a lottery for them first. The petitions for the US Master's Degree who does not get accepted in that lottery, will then be put into the regular 65K lottery. So if there is a lottery for US master's Degree, they get their chances twice at the lottery- first the 20K one, then the 65K one.

Petitions incorrectly filed will not be counted towards the lottery.

The CIS has also said that all cases received until April 05, will go into the lottery. But from my past experience, I cannot rely on CIS . There is Nothing to keep the CIS from issuing a statement on April 02 saying that "due to the huge number of cases already filed on April 01, we will NOT be accepting further cases". So ALL my cases are reaching the CIS doorstep on April 01, 2008.

The following is a cut and paste from USCIS web site on their interim rule:

"USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker and will not refund the filing fees submitted with multiple or duplicative petitions.

This rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need."

March Madness Revisited

Once again another year approaches when more than 150,000 applicants vie for the 65,000/- H-1B visa quotas per year. Once again, us immigration lawyers are scrambling to get petitions ready to be fedexed to the Vermont and California Service Centers on March 31, so that they reach on April 01. If they reach on March 31, the Citizenship and Immigration Service will reject them as too early, if they reach on April 02, it will be too late. The more than 150,000 that reach on Apriul 01, will be entered into a lottery system and the lucky 65,000 will get the visa.

Once again, for years now, Bill Gates urges the Congress to increase the quotas on H-1B. Yet it falls on deaf ears. The H-1B category is for "Professionals" of which US has a tremendous demand. These professionals help us stay productive and competitive in the world economy of today.

We champion free market enterprise, yet we do not allow free flow of skilled labor to meet the demands of a free market economy. We are governed by Xenophobia and hamper our economy by unreal restrictions and baseless wars.