Significant Jump In H-1b Visa Petitions And Other Developments In Immigration Law

Immigration Update On H-1B Petitions; Visa Availability; INA Section 221(g) Notices And ESTA Registration; PERM Applications; FDNS H-1B Audits And Work-Site Visits H-1B Petitions Jump U.S. Citizenship and Immigration Services (USCIS) reports that as of November 6, 2009, it has received 54,700 H-1B petitions subject to the annual cap of 65,000. This is a significant jump since a report released on September 18, 2009, indicating that only 46,000 petitions had been received. The jump is attributed to reaching the cap on the additional 20,000 visas allotted for foreign nationals with advanced degrees and placing the remaining petitions for advanced-degree holders into the regular cap pool. Any H-1B petition filed on behalf of an individual with an advanced degree will now be counted toward the 65,000 cap. USCIS will continue to accept H-1B petitions until the cap is reached, taking into consideration that some of the petitions may be denied, revoked or withdrawn.

Employers may want to file any cap-subject H-1B petitions as soon as possible.

USCIS Temporarily Accepting H-1B Petitions Filed Without Labor Condition Applications Responding to concerns from employers and beneficiaries of H-1B petitions over delays in filing caused by the recently implemented "iCERT" system, USCIS announced that it will temporarily accept H-1B petitions without certified Labor Condition Applications (LCAs), beginning on November 5, 2009, through March 4, 2010.

USCIS will only accept H-1B petitions without a certified LCA after seven calendar days have passed since the LCA was filed with the U.S. Department of Labor (DOL). The petition must be filed with a copy of the DOL's email giving notice of receipt of the LCA. Once the LCA is certified, it can be submitted to the USCIS only after the petitioner receives a request for evidence (RFE). Petitioners will then have a period of 30 calendar days to send in the DOL-certified LCA in response to the RFE. The H-1B petition will not be approved until the certified LCA is received.

Visa Availability The U.S. Department of State recently released the December Visa Bulletin, which reflects no changes to the availability of visas in the Employment-Based categories, other than a one-week advance in the Employment-Based Third Preference (EB-3) category, from April 22, 2001, to May 1, 2001. The EB-3 category encompasses those foreign nationals in positions that require at least a bachelor's degree or two or more years of...