USCIS to Accept H-1B Petitions for FY 2010 Beginning April 1, 2009

 

March 20, 2009

USCIS to Accept H-1B Petitions for FY 2010 Beginning April 1, 2009
Petitioners Are Reminded to Follow Regulatory Requirements

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced that it will begin accepting H-1B petitions subject to the fiscal year 2010 (FY 2010) cap on April 1, 2009.  Cases will be considered accepted on the date that USCIS takes possession of the petition; not the date that the petition is postmarked.

The numerical limitation on H-1B petitions for fiscal year 2010 is 65,000.  Additionally, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. masters' degree or higher are exempt from the fiscal year cap.

USCIS will monitor the number of petitions received and will notify the public of the date USCIS has received the necessary number of petitions to meet the H-1B cap, known as the "final receipt date."  The date USCIS publishes information that the cap has been reached does not control the final receipt date. To ensure a fair system, USCIS will, if needed, randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date.  USCIS will reject cap subject petitions that are not selected, as well as those received after the final receipt date.

H-1B petitions cannot be filed more than six months in advance of the requested start date.  Petitions seeking an H-1B worker for an Oct. 1, 2009 start date can be filed no earlier than April 1, 2009. 

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at institutions of higher education or a related or affiliated nonprofit entities, or at nonprofit research organizations or governmental research organizations.  Thus, employers may continue to file petitions for these exempt H-1B categories seeking work dates starting in FY 2009 or 2010.
 
Petitions filed on behalf of current H-1B workers who have been counted previously against the cap also do not count towards the congressionally mandated H-1B cap. Accordingly, USCIS will continue to process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States. 
  
• Change the terms of employment for current H-1B workers. 
  
• Allow current H-1B workers to change employers. 
  
• Allow current H-1B workers to work concurrently in a second H-1B position.
  

H-1B petitioners should follow all regulatory requirements (8 CFR §214.2) as they prepare petitions to avoid delays in processing and possible requests for evidence.  USCIS has developed detailed information, including a processing worksheet, to assist in the completion and submission of a FY2010 H-1B petition.  Those documents are available from the Related Links section of this page.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as scientists, engineers, or computer programmers.

USCIS Q&A Regarding Employ American Workers Act and its Effect on H-1Bs

March 20, 2009

Questions and Answers: Employ American Workers Act and its Effect on H-1B Petitions

Introduction

U.S. Citizenship and Immigration Services (USCIS) today announced additional requirements for employers, who receive funds through the Troubled Asset Relief Program or under section 13 of the Federal Reserve Act before they may hire a foreign national to work in the H-1B specialty occupation category.

Background

On Feb. 17, 2009, President Obama signed into law the American Recovery and Reinvestment Act ("stimulus bill"), Public Law 111-5. The stimulus bill contained the Employ American Workers Act ("EAWA"), Pub. L. 111-5, Div. A, Title XVI, § 1611.

Questions and Answers

Q. What does EAWA do?
A. EAWA prevents a company from displacing U.S. workers when hiring H-1B specialty occupation workers if the company received funds through the Troubled Asset Relief Program ("TARP"), Pub. L. 110-343, Div. A, Title I, or under section 13 of the Federal Reserve Act (collectively referred to in this document as "covered funding").

Under EAWA, any company that has received covered funding and seeks to hire H-1B workers is considered to be an "H-1B dependent employer."

An "H-1B dependent employer" must make the following additional attestations to the U.S. Department of Labor (DOL) when filing a Labor Condition Application (LCA):

• It has taken good faith steps to recruit U.S. workers (defined as U.S. citizens or nationals, lawful permanent resident aliens, refugees, asylees, or other immigrants authorized to be employed in the United States (i.e., workers other than nonimmigrant aliens) using industry-wide standards and offering compensation that is at least as great as those offered to the H-1B nonimmigrant;
  
• It has offered the job to any U.S. worker who applies and is equally or better qualified for the job that is intended for the H-1B nonimmigrant; 
  
• It has not "displaced" any U.S. worker employed within the period beginning 90 days prior to the filing of the H-1B petition and ending 90 days after its filing. A U.S. worker is displaced if the worker is laid off from a job that is essentially the equivalent of the job for which an H-1B nonimmigrant is sought; and 
  
• It will not place an H-1B worker to work for another employer unless it has inquired whether the other employer has displaced or will displace a U.S. worker within 90 days before or after the placement of the H-1B worker.
  

Q. Are the EAWA requirements permanent?

A. No. EAWA took effect on Feb. 17, 2009 and will sunset two years from the date of enactment.

Q. Which specific U.S. companies are affected?

A. USCIS is working with the Department of the Treasury and other relevant agencies to identify companies that have received covered funding. USCIS, however, expects companies seeking to hire H-1B workers to know whether or not they have received covered funding and act accordingly with respect to hiring an H-1B nonimmigrant.

EAWA only applies to U.S. companies that received covered funding and want to hire new H-1B workers.

The normal exception to the H-1B dependent employer requirements that an H-1B nonimmigrant is exempt from the dependency calculation if the individual earns a salary of at least $60,000 or has a master's degree or higher is not available to companies that have received covered funding.

Q. What is an H-1B nonimmigrant?

A. An H-1B nonimmigrant is a foreign national who comes to the United States temporarily to work in a specialty occupation. A specialty occupation position is one that generally requires a bachelor's or higher degree and specialized knowledge.

A U.S. employer seeking to hire H-1B workers must file an LCA with DOL and submit the certified LCA with the H-1B petition with USCIS. There also is an annual limit of 65,000 on H-1B workers, subject to certain exceptions. Additionally, the first 20,000 H-1B petitions filed on behalf of aliens who have earned a U.S. masters' degree or higher are exempt from the fiscal year cap.

Q. To which H-1B hires does EAWA apply?

A. EAWA applies to any "hire" taking place on or after Feb. 17, 2009, and before Feb. 17, 2011. EAWA defines "hire" as an employer permitting a new employee to commence a period of employment; that is, the introduction of a new employee to the employer's U.S. workforce.

EAWA applies to:

• Any LCA or petition filed on or after Feb. 17, 2009 involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status.
  
• New employment (i.e., hires) based on a petition approved before Feb. 17, 2009, if the H-1B employee had not actually commenced employment before that date.
  

EAWA does not apply to:

• A petition to extend the H-1B status of a current employee with the same employer.
  
• A petition seeking to change the status of a current U.S. work-authorized employee to H-1B status with the same employer.
  

Q. How is USCIS implementing EAWA?

A. EAWA affects the current LCA process administered by DOL and the USCIS petition process for companies seeking H-1B workers. Companies subject to EAWA will now need to make new statements regarding recruitment and hiring of U.S. workers.

USCIS is revising Form I-129, Petition for Nonimmigrant Worker, to include a question asking whether the petitioner has received covered funding. This revised form will be posted to the USCIS website in time for the next cap subject H-1B filing period that begins on April l, 2009. While USCIS encourages petitioners, whenever possible, to use the most up-to-date form, USCIS will not require use of the revised form in time for the start of the filing period for fiscal year 2010.

However, USCIS urges H-1B petitions who have already prepared packages for mailing using the previous Form I-129 (January 2009 version) to complete only the page in the revised version of the Form I-129 (March 2009) which has the new question on EAWA attestation requirements and to file this single page with the prepared package. The single page referenced is the first page on the H-1B Data Collection and Filing Fee Exemption Supplement.

A valid LCA must be on file with DOL at the time the H-1B petition is filed with USCIS. Therefore, if the petitioner indicates on its petition that it is subject to the EAWA, but the LCA does not contain the proper attestations relating to H-1B dependent employers, the H-1B petition will be denied.

 

USCIS Announces New H-1B Requirements for Companies that Receive TARP Funding

 

March 20, 2009

USCIS Announces New Requirements for Hiring H-1B Foreign Workers
Changes Apply to Companies that Receive TARP Funding

WASHINGTON – U.S. Citizenship and Immigration Services (USCIS) today announced additional requirements for employers, who receive funds through the Troubled Asset Relief Program or under section 13 of the Federal Reserve Act (covered funding), before they may hire a foreign national to work in the H-1B specialty occupation category. 

The new "Employ American Workers Act," (EAWA), signed into law by President Obama as part of the American Recovery and Reinvestment Act on Feb. 17, 2009, was enacted to ensure that companies receiving covered funding do not displace U.S. workers. Under this legislation any company that has received covered funding and seeks to hire new H-1B workers is considered an "H-1B dependent employer." All H-1B dependent employers must make additional attestations to the U.S. Department of Labor (DOL) when filing the Labor Condition Application.

EAWA applies to any Labor Condition Application (LCA) and/or H-1B petition filed on or after Feb. 17, 2009, involving any employment by a new employer, including concurrent employment and regardless of whether the beneficiary is already in H-1B status. The EAWA also applies to new hires based on a petition approved before Feb. 17, 2009, if the H-1B employee had not actually commenced employment before that date.

EAWA does not apply to H-1B petitions seeking to change the status of a beneficiary already working for the employer in another work-authorized category. It also does not apply to H-1B petitions seeking an extension of stay for a current employee with the same employer.

USCIS is revising Form I-129, Petition for Nonimmigrant Worker, to include a question asking whether the petitioner has received covered funding. USCIS will post this revised form on the USCIS Web site in time for the next cap subject H-1B filing period that begins on April l, 2009. While USCIS encourages petitioners, whenever possible, to use the most up-to-date form, USCIS will not require use of the revised form in time for the start of the filing period for fiscal year 2010. 

However, USCIS urges H-1B petitions who have already prepared packages for mailing using the previous Form I-129 (January 2009 version) to complete only the page in the revised version of the Form I-129 (March 2009) which has the new question on EAWA attestation requirements and to file this single page with the prepared package. The single page referenced is the first page on the H-1B Data Collection and Filing Fee Exemption Supplement.

USCIS reminds petitioners that a valid LCA must be on file with DOL at the time the H-1B petition is filed with USCIS. This means that if the petitioner indicates on its petition that it is subject to the EAWA, but the Labor Condition Application does not contain the proper attestations relating to H-1B dependent employers, USCIS will deny the H-1B petition.

Visa Numbers for April 2009

See below for the most recent Visa Bulletin for April 2009. No huge changes, but the visa numbers in the employment-based 3^rd preference has retrogressed which means that many professionals waiting for their resident status have to wait even longer…………..Also, no visas at all for religious workers.

 

 

Visa Bulletin

Number 7
Volume XI
Washington, D.C.

VISA BULLETIN FOR APRIL 2009

A. 
STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during April. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; the Bureau of Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible under the numerical limitations, for the demand received by March 6th in the chronological order of the reported priority dates. If the demand could not be satisfied within the statutory or regulatory limits, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  Immediately that it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date.

2. Section 201 of the Immigration and Nationality Act (INA) sets an annual minimum family-sponsored preference limit of 226,000.  The worldwide level for annual employment-based preference immigrants is at least 140,000.  Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620.  The dependent area limit is set at 2%, or 7,320.

3.  Section 203 of the INA prescribes preference classes for allotment of immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First:  Unmarried Sons and Daughters of Citizens:  23,400 plus any numbers not required for fourth preference.

Second:  Spouses and Children, and Unmarried Sons and Daughters of Permanent
Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, and any unused first preference numbers:

A.  Spouses and Children:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B.  Unmarried Sons and Daughters (21 years of age or older):  23% of the overall second preference limitation.

Third:  Married Sons and Daughters of Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth:  Brothers and Sisters of Adult Citizens:  65,000, plus any numbers not required by first three preferences.

                               
EMPLOYMENT-BASED PREFERENCES

First:    Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third:  Skilled Workers, Professionals, and Other Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to "Other Workers".  

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of P.L. 102-395.

4.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

5.  On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); "C" means current, i.e., numbers are available for all qualified applicants; and "U" means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Fam-ily	All Charge- ability Areas Except Those Listed	CHINA-mainland born	INDIA	MEXICO	PHILIPP-INES
1st	15AUG02	15AUG02	15AUG02	08OCT92	01AUG93
2A	15AUG04	15AUG04	15AUG04	01JAN02	15AUG04
2B	01SEP00	01SEP00	01SEP00	01MAY92	15JAN98
3rd	22AUG00	22AUG00	22AUG00	22OCT92	15JUN91
4th	15APR98	08JAN98	15APR98	22APR95	22JUN86

*NOTE:  For April, 2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 01JAN02.  2A numbers SUBJECT to per-country limit are available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01JAN02 and earlier than 15AUG04.  (All 2A numbers provided for MEXICO are exempt from the per-country limit; there are no 2A numbers for MEXICO subject to per-country limit.)

	All Charge-ability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIP-PINES
Employ-ment -Based
1st	C	C	C	C	C
2nd	C	15FEB05	15FEB04	C	C
3rd	01MAR03	01MAR03	01NOV01	01MAR03	01MAR03
Other Workers	01MAR01	01MAR01	01MAR01	01MAR01	01MAR01
4th	C	C	C	C	C
Certain Religious Workers	U	U	U	U	U
5th	C	C	C	C	C
Targeted Employ-ment Areas	C	C	C	C	C
5th Pilot Progams	U	U	U	U	U

The Department of State has available a recorded message with visa availability information which can be heard at:  (area code 202) 663-1541.  This recording will be updated in the middle of each month with information on cut-off dates for the following month.

Employment Third Preference Other Workers Category:  Section 203(e) of the NACARA, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

B.  DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the Immigration and Nationality Act provides a maximum of up to 55,000 immigrant visas each fiscal year to permit immigration opportunities for persons from countries other than the principal sources of current immigration to the United States.  The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program.  This reduction has resulted in the DV-2009 annual limit being reduced to 50,000.  DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For April, immigrant numbers in the DV category are available to qualified DV-2009 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	26,900	Except: Egypt 17,400 Ethiopia 15,700 Nigeria 9,900
ASIA	17,400	Except: Bangladesh  11,000
EUROPE	20,800
NORTH AMERICA (BAHAMAS)	7
OCEANIA	715
SOUTH AMERICA, and the CARIBBEAN	900

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2009 program ends as of September 30, 2009.  DV visas may not be issued to DV-2009 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2009 principals are only entitled to derivative DV status until September 30, 2009.  DV visa availability through the very end of FY-2009 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C.  ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN MAY

For May, immigrant numbers in the DV category are available to qualified DV-2009 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region	All DV Chargeability Areas Except Those Listed Separately
AFRICA	32,400	Except: Egypt 19,150 Ethiopia 17,750 Nigeria 11,550
ASIA	22,800
EUROPE	24,900
NORTH AMERICA (BAHAMAS)	10
OCEANIA	825
SOUTH AMERICA, and the CARIBBEAN	1,000

D. 
EXPIRATION OF TWO EMPLOYMENT VISA CATEGORIES
  
Employment Fourth Preference Certain Religious Workers:

Pursuant to Section 2(a) of the Special Immigrant Nonminister Religious Worker Program Act (Pub. L. 110-391), the nonminister special immigrant program expires on March 6, 2009. 

Employment Fifth Preference Pilot Program Categories (I5, R5):

Pursuant to Section 144 of the Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009 (Public Law 110-329), the immigrant investor pilot program expires on March 6, 2009. 

The cut-off dates for the above categories are shown as "Unavailable" for April.  Congress is considering an extension for each of these categories, but there is no certainty when such legislative action may occur.  If legislation to extend either of these categories is enacted, the cut-off date for that category would immediately become "Current."

            
E.  RETROGRESSON OF THE WORLDWIDE, MEXICO, AND PHILIPPINES EMPLOYMENT THIRD PREFERENCE CUT-OFF DATES FOR APRIL

Despite the established cut-off date having been held for the past five months in an effort to keep demand within the average monthly usage targets, the amount of demand being received from Citizenship and Immigration Services (CIS) Offices for adjustment of status cases remains extremely high.  Therefore, it has been necessary to retrogress the April cut-off dates in an attempt to hold demand within the FY-2009 annual limit.  Since over 60 percent of the Worldwide and Philippines Employment Third preference CIS demand received this year has been for applicants with priority dates prior to January 1, 2004, the cut-off date has been retrogressed to 01MAR03 to help ensure that the amount of future demand is significantly reduced.  As indicated in the last sentence of Item A, paragraph 1, of this bulletin, this cut-off date will be applied immediately.  It should also be noted that further retrogression or "unavailability" at any time cannot be ruled out. 

It has also been necessary to retrogress the Employment Third Preference Other Worker cut-off date for all countries in order to hold the issuance level within the annual limit.

F.  VISA AVAILABILITY IN THE COMING MONTHS

During the past year, many preference categories have experienced steady and sometimes rapid cut-off date movement.  Such action is normally followed by an increase in applicant demand.   Heavy applicant demand for numbers in some categories could require cut-off date movements to slow, stop, or even retrogress at some point during the remainder of FY-2009, in order to hold visa use within the applicable annual numerical limits.  Should such action occur, it would most likely be only temporary in nature, pending the start of the new fiscal year in October.

G. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State's Bureau of Consular Affairs offers the monthly "Visa Bulletin" on the INTERNET'S WORLDWIDE WEB.  The INTERNET Web address to access the Bulletin is:   

                   
http://travel.state.gov/

From the home page, select the VISA section which contains the Visa Bulletin.

To be placed on the Department of State's E-mail subscription list for the "Visa Bulletin", please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin First name/Last name
(example:  Subscribe Visa-Bulletin  Sally Doe)

To be removed from the Department of State's E-mail subscription list for the  "Visa Bulletin", send an e-mail message to the following E-mail address:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (area code 202) 663-1541. The recording is normally updated by the middle of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.) 

Department of State Publication 9514
CA/VO: March 6, 2009