Category Archives: H1-B Blog Posts

H-1B Lottery Results


USCIS received over 236,000 H-1B petitions during the filing period, which began April 1 and ended on April 7. This is the fourth year in a row that USCIS received a sufficient number of petitions to meet the annual quota of available visas in the first 5 business days of April. Thus, USCIS was forced to resort to a lottery selection process again for FY2017.

On April 9, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. While it is difficult to accurately determine the percentage chance for the advanced degree exemption, we can determine that those in the general-category cap had a 27.54% chance of being picked. ((236,000 – 20,000) / 65,000 = 27.54%). This percentage represents the chance for a majority of applicants.

What often goes unsaid is that the remaining 72.46% are left with uncertainty about their future. Each unpicked petition represents a person’s future. Each individual is highly qualified and capable of performing professional-level work for U.S. companies. Yet these individuals and these companies must develop alterative plans for what is an arbitrary lottery. There is no less need for these highly-skilled individuals. And there is no reason to capriciously limit U.S. businesses.

This system is clearly flawed.

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Proposed Rule to Improve Employment-Based Immigration


Last week the Department of Homeland Security proposed to amend regulations affecting certain employment-based immigrant and nonimmigrant classifications in what has been named, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting Highly-Skilled H-1B Alien Workers” (RIN:1615-AC05)  While the details of this proposed rule have yet to be disclosed, the stated purpose is to amend current regulations to provide stability and job flexibility for the beneficiaries of approved employment-based immigrant visa petitions (I-140) while they wait to become lawful permanent residents.

These amendments would support U.S. employers by better enabling them to hire and retain highly-skilled foreign workers. DHS proposes to accomplish this, in part, by implementing certain provisions of ACWIA and AC21, as amended by the 21st Century DOJ Appropriations Act. The proposed amendments would increase the incentive of highly-skilled and other foreign workers who have begun the immigration process to remain in and contribute to the U.S. economy as they complete the process to adjust status to or otherwise acquire lawful permanent resident status, thereby minimizing disruptions to petitioning U.S. employers.

Attracting and retaining highly-skilled persons is important when considering their contributions to the U.S. economy, including advances in entrepreneurial and research and development endeavors, which are highly correlated with overall economic growth and job creation.

After the proposed rule has been vetted by the Office of Information and Regulatory Affairs, Office of Management and Budget, it will be published to the Federal Register for a period of 30 days for public comment. At that time, we will be able to provide more details about the regulation changes.

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OFLC FY2015 Q3 PWD Stats


Each quarter the Department of Labor Office of Foreign Labor Certification publishes statistics on the number of Prevailing Wage Determinations (PWD) filed with its office. Included in this publication are the number of PWDs filed, the number processed, the top employers who have filed a PWD, the occupations for which a PWD is sought, the top H-1B employers who have filed and the top H-1B occupations for which the PWD is filed. The number of PWD requests for any given quarter of a fiscal year can be a good indicator of the number of PERM applications that will be filed in that fiscal year. This number will have significant impact on future priority date movement or retrogression of visa number availability. See below.

OFLC PWD 3Q FY2015

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USCIS Returns All Unselected FY2016 H-1B Cap-Subject Petitions


On July 14, 2015, USCIS announced that it has mailed the last remaining FY2016 H-1B cap-subject petition that was not selected in this year’s lottery. Return of a petition is final notice that an H-1B filing has no further chance of being selected to replace a rejected or denied petition that was selected in the lottery. For any H-1B cap-subject petition that was submitted for FY2016 where neither a receipt notice nor a return petition has been received by July 20, 2015, USCIS has requested the petitioner to contact their office.

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Bills to Watch: A Legislative Rundown


Given the close proximity to the Presidential election and the inability for Congress to function as it was intended, at least for the last 7 years, my optimism for passage of meaningful immigration reform in the next two years wanes. After all, a bill must be passed by both the House and Senate in identical form and then be signed by the President to become law. With half of Congress running for President, it is difficult to imagine these politicians throwing politics aside to serve the American people. That, I believe, would be too much to ask. Yet, there are several bills that have been introduced this year that give me hope for the future of U.S. immigration.

H.R. 213: Fairness for High-Skilled Immigrants Act of 2015

Introduced: Jan 8, 2015

Status: Referred to House Committee on the Judiciary: Subcommittee on Immigration and Border Security

Sponsors: Rep Jason Chaffetz (R-UT3) with cosponsors Rep Raul Labrador (R-ID1) and Rep Zoe Lofgren (D-CA19)

Co-Sponsors: 25 Republicans & 14 Democrats

Summary: Fairness for High-Skilled Immigrants Act would eliminate country-based restrictions on employment visas and to reduce country-based restrictions on family visas. Currently, the Immigration and Nationality Act limits the combined total of work and family visas to 7% of a country’s total population. If passed, H.R. 213 would remove all restrictions on the number of visas issued to a particular country in a given year. Limits on the number of visas issued would remain intact.

S. 153: I-Squared Act of 2015

Introduced: Jan 13, 2015

Status: Referred to Senate Committee on the Judiciary

Sponsors: Senator Orin Hatch (R-UT)

Co-Sponsors: 8 Republicans, 4 Democrats, 1 Independent

Summary: Immigration Innovation Act authorizes additional visas for key employment-based categories. Specifically it would create a sliding scale system for H-1Bs that would allow USCIS to issue up to 195,000 visas incrementally between April 1 and December 31. It would also start with 115,000 visas as a baseline. I-Squared would also increase the number of employment-based green cards from 140,000 to 235,000, it would eliminate per country limits, and it would reallocate unused visas going back to 1993.

S. 98: STEM Jobs Act of 2015

Introduced: Jan 7, 2015

Status: Referred to Senate Committee on the Judiciary

Sponsors: Senator David Vitter (R-LA)

Co-Sponsors: 0

Summary: STEM Jobs Act of 2015 provides 55,000 visas available for immigrants who have completed a doctorate degree in a STEM field from a U.S. institution of higher learning. All unused visas would then become available for immigrants who have completed a master’s degree in a STEM field from a U.S. institution of higher learning.

H.R. 2181: STAPLE Act

Introduced: April 30, 2015

Status: Referred to House Committee on the Judiciary: Subcommittee on Immigration and Border Security

Sponsor: Rep Erik Paulsen (R-MN3)

Co-Sponsors: 2 Democrats & 1 Republican

Summary: STAPLE Act would authorize certain aliens who have earned a Ph.D. degree from a U.S. institution of higher education in a STEM field to be admitted for permanent residence and to be exempted from the numerical limitations on H-1B nonimmigrants.

H.R. 616: American Entrepreneurship and Investment Act of 2015

Introduced: January 28, 2015

Status: Referred to House Committee on the Judiciary: Subcommittee on Immigration and Border Security

Sponsor: Rep Jared Polis (D-CO2)

Co-Sponsors: 12 Democrats & 9 Republicans

Summary: American Entrepreneurship and Investment Act would provide reforms to the EB-5 immigrant investor program. It would increase the targeted employment area set-aside and to defer to state designations. It would also establish preapproval procedures for commercial enterprises before an alien files a petition for classification by reason of investment, except for specified criminal or civil activities. Additionally it would provide certain immigration provisions and exemptions for the dependents of investors.

H.R. 1834: E-2 Visa Improvement Act of 2015

Introduced: April 16, 2015

Status: Referred to House Committee on the Judiciary: Subcommittee on Immigration and Border Security

Sponsor: Rep David Jolly (R-FL13)

Co-Sponsors: 6 Republicans & 1 Democrat

Summary: E-2 Visa Improvement Act would permit certain E-2 nonimmigrant investors to adjust status to lawful permanent resident status.

S. 1501: American Job Creation and Investment Promotion Reform Act of 2015

Introduced: June 3, 2015

Status: Referred to Senate Committee on the Judiciary

Sponsor: Senator Patrick Leahy (D-VT)

Co-Sponsors: 1 Republican

Summary: American Job Creation and Investment Promotion Reform Act would promote and reform foreign capital investment and job creation in American communities through the EB-5 Regional Center investment program.

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Consular Alert: Visa System Back Online


On June 26, 2015, the U.S. Department of State Bureau of Consular Affairs announced that all visa-issuing embassies and consulates are back online! The remaining visa interviews are being scheduled and the Consulates are issuing nonimmigrant and immigrant visas. As of Friday the 26th, the Consulate issued more than 300,000 nonimmigrant visas through the course of the week, and the Consular staff intend to clear the remaining backlog by early next week. To do so, they will be operational through the weekend. Although the problems with visa issuing has been resolved, the Consulate continues to experience problems with some online immigrant visa application forms.

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Consulate Alert: Biometric Clearance System Rebuilt


The Bureau of Consular Affairs reports that the database responsible for handling biometric clearances has been rebuilt and is being tested. As of June 23, 2015, 39 posts, representing more than 2/3 of normal capacity, are now online and issuing visas. Yesterday, 45,000 visas were issued, with 15,000 of those in Beijing alone. The Consulate continues to work 24/7 to restore full biometric data processing and will continue to bring additional posts online until full connectivity and functionality has been restored. The Consulate still targets full functionality to be restored this week and will process visas over the weekend to clear visa processing backlogs. It may take time to clear backlogs; however, because the Consulate processes an average of 50,000 applications a day worldwide. To put the delay in perspective, the Consulate will begin interviews this week for those who applied after June 8, so it will likely take another 2-3 weeks to clear the backlog.

For a list of Consulate Posts where connectivity has been restored, click here.

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Consulate Alert: Full System Functionality This Week


On June 22, 2015, the Department of State updated the Consulate Alert, stating the Bureau of Consular Affairs is in the process of resolving technical problems with the visa systems. Though some progress has been made, biometric data processing has not been fully restored. As of noon yesterday, 22 posts had been reconnected, representing about half of the global nonimmigrant visa volume. Most posts were able to handle visa interviews and some visa printing. This week, many posts have rescheduled visa appointments. All servers appear to be stable. Although there is a large backlog of cases, they are making progress and will continue until connectivity with all posts is restored. Full connectivity is expected later this week.

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Consulate Alert: Updates to Worldwide Visa System Outage


June 17, 2015, Department of State First Update:

The Bureau of Consular Affairs continues to experience technical problems with visa systems. This is a global issue, and they are working around the clock to fix it. More than 100 computer experts from both the private and public sectors across the United States are working on this problem 24/7. That said, DoS does not expect the system will be online before next week. The problems stem from a hardware failure in a State Department facility in the United States on June 9. That failure is preventing the Department from processing and transmitting biometric data checks at visa-issuing embassies and consulates. The DoS says “We cannot bypass the legal requirements to screen visa applicants before we issue visas for travel. Each visa decision is a national security decision, and we take our obligation to protect the United States seriously.”

June 17, 2015, Department of State Second Update

The Bureau of Consular Affairs continues to experience technical problems with their visa systems. The Consular Consolidated Database (CCD) problems they are experiencing are not the same challenges they overcame last summer. In addition to more than 100 computer experts across the United States working on this problem 24/7, they are pursuing a variety of other solutions.

Nonetheless, yesterday, around 250 agricultural workers who had had visas in the past were issued new visas in Mexico. The DoS says “We anticipate that many more will receive visas this week. We deeply regret the inconvenience to travelers and recognize that this is causing hardship to those waiting for visas, and in some cases, their family members or employers in the United States.” No update has been provided about how DoS will handle improperly issued visas. Nor has information been provided about when the system is expected to be functional.


June 17, 2015

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Consulate Alert: Unable to Issue Passports and Visas Abroad


The Department of State issued an alert on June 15, 2015, which is still in effect. The subject of the alert is that the Bureau of Consular Affairs is currently experiencing technical problems with its overseas passport and visa systems. These issues have resulted in delays in printing visas and may mean rescheduling some visa interviews. Some visa applicants will experience delays in receiving visas. Others will be contacted directly to reschedule their appointments. Passports are still being processed.The issue is not specific to any particular country, citizenship document, or visa category. Although the DoS does not believe these problems stem from any cyber-security hacking issues, their border security responsibilities are critical to the visa process. They state that they “cannot bypass the legal requirements to screen visa applicants before [they] issue visas for travel.”

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