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H-1B Visas: 8 Loopholes in the H-1B Cap

The U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2014 that that the H-1B cap for fiscal year (FY) 2015 had been reached.  In fact, USCIS received far more applications than the limit of 65,000 bachelor degree H-1B visas and the 20,000 H-1B petitions filed under the advanced degree (master’s degree or higher) cap exemption.

The agency plans to conduct a random, computer-generated lottery that will select which petitions will be processed, and which will be rejected.  The selection process will start with the advanced degree exemption.

Not every H-1B petition is subject to the cap.  The following circumstances qualify as exemptions to the cap, allowing employers to file H-1B petitions at any time:

  1. H-1B extension – the employer is seeking an extension of H-1B employment for a current employee.
  2. Change of employer – the employer is hiring an H-1B employee who is working with another employer, provided the employee’s H-1B was counted previously against the cap.
  3. Amendment – the employer has changed the terms of employment, e.g. different position or location, for the H-1B employee.
  4. Concurrent employment – the H-1B employee will work for a second employer while continuing to work for his or her current employer.
  5. J-1 Waiver Physician – the H-1B employee is a J-1 physician who has received a waiver of the two-year home residency requirement (“J-1 waiver”).  The J-1 waiver must have been sponsored by a federal or state government agency. Hardship and persecution waivers do not qualify for this exemption. This exemption follows the physician to any new employment.
  6. Cap-exempt employment – the H-1B employee will work for a qualifying cap-exempt employer or work at a qualifying cap-exempt facility.   If the employee changes to a cap-subject job, the petition must compete for a new H-1B visa in the cap.
  7. Free Trade Agreement exemption – the employee is a citizen of Chile or Singapore and qualifies for H-1B1 status. Each fiscal year, 6,800 visas from the 65,000 H-1B cap are set aside for citizens of Chile and Singapore (1400 for Chile, 5400 for Singapore) to obtain H-1B1 visas.  Rarely is this separate visa cap met.
  8. Previously counted H-1B – the H-1B employee previously had H-1B approval and has not used the entire six year employment period available. A potential employee who holds another visa status in the U.S. or is currently residing outside the U.S. can qualify for this exemption.

Considering the many “loopholes” in the H-1B cap system, employers should carefully review the immigration history of potential and current H-1B employees to determine if any of these exemptions apply. For specific solutions, employers should consult with an immigration attorney who has extensive experience working with employment immigration.

For immigration questions about hiring H-1B employees, you are invited to contact Ann Massey Badmus at abadmus@cowlesthompson.com, 214-672-2161.

The information provided in this article is intended to help you understand basic issues involved in the immigration process for H-1B employees, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. You should not act or rely upon the information in this article without first seeking the advice of an immigration attorney.

H-1B Cap for FY2015 Reached on April 7, 2014

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015.  USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.   

Before running a random selection process, USCIS will complete initial intake for all filings received during the filing period which ended today. Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process.

A computer-generated process will randomly select the number of petitions needed to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. USCIS will reject and return filing fees for all cap-subject petitions that are not selected, unless found to be a duplicate filing.

The agency will conduct the selection process for the advanced degree exemption first. All advanced degree petitions not selected will become part of the random selection process for the 65,000 limit.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted towards the congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and 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; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.


Tips to Navigate the H-1B Visa Cap for Medical Providers

The H-1B cap season begins April 1, 2014.  Up to 65,000 H-1B visas for new employment may be issued each fiscal year (FY) for professional workers, including medical providers. In general, a person who already has an H-1B and applies for another H-1B with another employer is not subject to the H-1B cap.  Also, some new employment applications are “cap-exempt.”  If a provider is working with a cap-exempt H-1B visa and changes to employment that is not cap-exempt, then the new employer’s application will be counted in the cap.

 Applications must be filed on or after  April 1 so that a provider can start work on October 1. Last year, the H-1B cap for FY2014 was oversubscribed with nearly 124,000 applications submitted the first week of April.   The situation this year might be the same or worse.  Here are a few tips to work around the H-1B cap this year or avoid losing out for next year.

 1.         J-1 physicians applying for a J-1 waiver are exempt from the H-1B cap permanently.  Physicians who receive a J-1 waiver of the two-year foreign residency requirement by agreeing to work in a medical shortage area are exempt for each H-1B employment. If you hire an H-1B physician who received a J-1 waiver in the past and is changing to your employment, the H-1B cap does not apply.

 2.         Determine if the H-1B employment might qualify for cap-exemption.  Employers that are post-secondary educational institutions such as universities and colleges (including two-year technical schools) and their non-profit affiliates are exempt from the H-1B cap. Employers that are nonprofit research organization and government research organizations are also exempt.  And, providers who will work at the locations of these organizations even though actually employed by for-profit practices are cap-exempt.

 3.         Hire early and apply early. If you contract early enough, you increase your chances to win an H-1B visa for your provider.  For example, you sign an H-1B cap-exempt physician just starting the final year of his fellowship training, which he completes on June 30, 2014.  Since you are not a cap-exempt employer, your H-1B application will be subject to the H-1B cap.  If your provider is licensed in your state, apply on April 1, 2014 when the H-1B visa race begins.  The later you wait, the less likely the application will succeed.

 4.           Find out if other visa options are available.  The O-1 visa or even a permanent residence (green card) application for your provider could be viable alternatives to the H-1B visa.   For more about these and other options, register here for our webinar, Top 6 Alternatives to H-1B Visas for Foreign Professionals, Tuesday, March 25, 11:00 a.m. CST. For specific solutions for your hire, consult with an immigration attorney who has extensive experience working with medical providers.

 For immigration questions about hiring foreign grad physicians for your practice, you are invited to contact Ann Massey Badmus at abadmus@cowlesthompson.com, 214-672-2161.

 The information provided in this article is intended to help you understand basic issues involved in the immigration process for foreign physicians, and are offered only for general informational and educational purposes. This information is not offered as, nor does it constitute legal advice or legal opinions. You should not act or rely upon the information in this article without first seeking the advice of an immigration attorney.



USCIS Publishes I-9 Instructional Videos

Here are three short videos for employees and employers that demonstrate how to complete the Employment Eligibility Verification Form I-9. Watch the new Form I-9 videos and learn how  to complete Sections 1, 2, and 3. Each video walks you through the key steps in four minutes or less.

USCIS to Conduct Customer Satisfaction Surveys


February 10, 2014 - Barbaricum is a professional research firm that is contracted by USCIS to conduct customer satisfaction surveys and focus groups on behalf of U.S. Citizenship and Immigration Services (USCIS). USCIS customers may receive an email or phone call from Barbaricum asking them to provide feedback on their customer service. Please be assured that Barbaricum is authorized to conduct these surveys. Your feedback is extremely valuable and we appreciate you taking the time to participate in our surveys and focus groups. For more information, please contact the Public Engagement Division at public.engagement@uscis.dhs.gov.

Department of State Discusses Visa Numbers Expectations for December

On Wednesday, October 23, 2013, Mr. Charlie Oppenheim of the Department of State’s Visa Office spoke to the Washington D.C. Chapter of the American Immigration Lawyers Association dinner. Below are notes from that meeting. These notes are Mr. Oppenheim’s impressions at this time, and are subject to change based on usage or new developments.

  • His office is concerned again this year that the EB-5 numbers for China are moving too fast and there could be a cut-off for China EB-5 in June 2014 or later, if usage remains at the current levels. Worldwide EB-5 usage is up as well.
  • The India EB-2 cutoff date is expected to retrogress from June 2008 (which is what it is in the November 2013 Visa Bulletin) to 2004 or 2005 in December 2013. This is due in large part to Indian nationals “upgrading” from EB-3 to EB-2. See below for more on upgrades.
  • India EB-3 will continue to move very slowly.
  • Upgrades continue to be a tough issue to manage. USCIS does not appear to be working to develop any processes or procedures to better capture upgraded employment-based cases so there is no better information expected from that agency to assist Mr. Oppenheim’s office in better managing these numbers.
  • Worldwide EB-2 is expected to remain current.
  • Worldwide EB-3 could move up to 2011 in the December Visa Bulletin.
  • Worldwide EB-1 is expected to remain current.
  • China EB-2 will continue to move slowly.
  • China EB-3 is expected to continue to be ahead of a China’s EB-2 priority date. Members are reminded that they may be able to use an expired EB-2 PERM for a new EB-3 category. As long as the first EB-2 I-140 was approved, the PERM can be used to file a second I-140 under EB-3. See this USCIS memo for more information (AILA Doc. No. 07062172)
  • EB-4 is expected to remain current.
  • Family-based 2A (spouses and children under 21 of permanent residents) is expected to hold at its current date. Mexico FB-2A may need to retrogress in the future. Many FB-2A applicants are not showing up for their appointments, or their applications are being returned from the posts.

AILA InfoNet Doc. No. 12012349 (posted Nov. 1, 2013)

E-Verify is Currently Unavailable

From the USCIS:

E-Verify is currently unavailable due to a government shutdown.

While E-Verify is unavailable, you will not be able to access your E-Verify account. As a result, you will be unable to:

  • Enroll any company in E-Verify
  • Verify employment eligibility
  • View or take action on any case
  • Add, delete or edit any User ID
  • Reset passwords
  • Edit your company information
  • Terminate an account
  • Run reports

View ‘Essential Resources.’ Please note that all essential resources may be found by visiting www.dhs.gov/e-verify

In addition, E-Verify Customer Support and related services are closed. As a result:

  • Employees will be unable to resolve Tentative Nonconfirmations (TNCs).
  • Telephone and e-mail support will be unavailable. You may send e-mails, however, we cannot respond until we reopen.
  • E-Verify webinars and training sessions are cancelled
  • E-Verify Self Check will not be available

We understand that E-Verify’s unavailability may have a significant impact on your company’s operations. To minimize the burden on both employers and employees, the following policies have been implemented:

  • The ‘three-day rule’ for E-Verify cases is suspended for cases affected by the shutdown. We’ll provide additional guidance once we reopen. This does NOT affect the Form I-9 requirement—employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay.
  • The time period during which employees may resolve TNCs will be extended. Days the federal government is closed will not count towards the eight federal government workdays the employee has to go to SSA or contact DHS. We will provide additional time once we reopen.
  • For federal contractors complying with the federal contractor rule, please contact your contracting officer to inquire about extending deadlines.
  • Employers may not take any adverse action against an employee because of an E-Verify interim case status, including while the employee’s case is in an extended interim case status due to a federal government shutdown (consult the E-Verify User Manual for more information on interim case statuses).

Government Shutdown and Immigration – What You Need to Know

The government shutdown has many immigrants concerned.  There’s  good news and bad news, depending upon the type and processing stage of your application.

USCIS (US Citizenship and Immigration Service) will continue to accept and process all applications as well as remain open for customer service calls.  The only program unavailable during the government shutdown is E-Verify for employment verification.  Therefore,  your pending applications will continue processing within the usual timeframes.  And you may continue to submit any new applications; however, filing new applications that require DOL approvals before filing (see below) might be delayed.

DOL (Department of Labor) will neither accept nor process any applications or related materials (such as audit responses), it receives, including Labor Condition Applications (LCA), Applications for Prevailing Wage Determination, Applications for Temporary Employment Certification, or Applications for Permanent Employment Certification.  The iCERT Visa Portal System,  used for many immigration functions, would become inactivated and users will not be able to access the system. 

The DOL shutdown is important  to many visa and green card applicants because:

  • LCAs are required for H-1B and H-2B petitions; therefore, filing new H-1B and H-2B petitions will be delayed because of the unavailability of the LCA processing.
  • Prevailing wage determinations are required for labor certification applications and typically take two months to process; therefore, new labor certification applications will be delayed.
  • PERM labor certification applications, both new and pending, will experience processing delay.

 Badmus Law Firm will continue to monitor this situation and provide further updates as needed. 

This information is provided as an educational service by Badmus Law Firm. If you have questions about immigration rules that affect you, you are invited to call us at  888-849-9104 or click here to schedule a consultation.

34 “Wins” for Immigrants in the Senate Immigration Reform Bill

  1. Path to citizenship for vast majority of the 11 million!!!
  2. While in RPI status, immigrants can work, travel and live without fear of deportation
  3. Reunification of many families separated by deportation
  4. 5 year path to citizenship for DREAMers
  5. DACA recipients will have RPI status expedited
  6. Farm workers will get a ‘blue card’ and will be on a 5 year path to citizenship
  7. Expedited path for those already here in a temporary status
  8. Families that have spent years, even decades waiting for their turn in line will finally be reunited
  9. Spouses and children of LPRs would be considered immediate family members and therefore would no longer be subject to arbitrary visa caps
  10. Allows DREAMers to become citizens through military service
  11. Immigrants on the path to citizenship can pay fees in installments
  12. Individuals with final removal orders may be eligible for RPI status
  13. Beacons for those toiling at the border
  14. New temporary worker programs that protects immigrant workers and American labor force
  15. All workers, including RPIs, will be treated equally by the tax system and eligible for tax credits
  16. Spouses of H-1B holders will now be able to work
  17. Immigration Judges will have some flexibility to consider individual factors when making decisions
  18. Children and the mentally disabled will be eligible for court appointed counsel in immigration proceedings
  19. Removal of filing deadline for asylum seekers
  20. Encourages immigrant integration through more targeted programs and foundations to help legal immigrants become citizens
  21. Inclusion of POWER Act, bolsters legal remedies to immigrant workers who are fired in violation of labor laws
  22. Strict limits on solitary confinement in immigration detention facilities
  23. Asylum applicants will be granted work authorization within 180 days of filing an application
  24. Provides immigration status to certain battered spouses and children
  25. Prohibit ICE from conducting raids/arrests outside schools, churches, hospitals and other “sensitive locations”
  26. Prohibits deportation of immigrants for a crime that wasn’t a deportable/inadmissible offense when committed
  27. Makes it substantially easier for both LPRs and non-LPRs to qualify for cancellation of removal, and removes the cap on the number of cancellations that DOJ/DHS can grant in a year
  28. Protects the ability of W visaholders (essential workers) to change jobs
  29. Ensures access to affordable housing for battered immigrants
  30. Encourages alternatives to immigration detention
  31. More protections for workers recruited abroad
  32. Stricter penalties for notario fraud
  33. Requires a use-of-force policy among all DHS agencies
  34. Future work-visa holders will be able to self-petition for green cards rather than relying on employers to decide whether they can call America home for good.

From Frank Sharry, Executive Director, America’s Voice Education Fund

Senate Passes Vitally Important Compromise Immigration Reform Bill

Washington, DC - Today, the Senate took a momentous step forward with a vote of 68-32 in favor of final passage of S. 744, the “Border Security, Economic Opportunity, and Immigration Modernization Act.” This moves the United States toward real immigration reform which is so vitally important for immigrant families, businesses, and the entire economy.

“Despite our continued concerns regarding the recent changes in the bill that will militarize the border and bring real harm to border communities, AILA is pleased that the Senate continues to move forward toward real immigration reform that will on balance benefit far more families and businesses than it will hurt,” said newly installed American Immigration Lawyers Association (AILA) President Doug Stump. He continued, “This bill is far from perfect, but it does contain provisions that will boost our economy, make our country safer, and offer protections for the undocumented who currently live in the shadows.

“Of course, this is a big day for immigration reform but it is not the end of our work because while one Congressional chamber has moved forward, the other lags behind. The House has heretofore insisted on taking a piecemeal, enforcement-focused and restrictionist stance, with recent bills working their way through the Judiciary Committee that would criminalize undocumented immigrants, harm American businesses and employees, and gut our agricultural system. We call on the House to recognize that an incremental process will simply delay real reform. We look forward to the day when the common sense provisions in the Senate bill are enacted and have the full force of law,” Mr. Stump concluded.

“AILA InfoNet Doc. No. 13062754 (posted Jun. 27, 2013)”