APRIL 2013
Khaas Baat : A Publication for Indian Americans in Florida


H-1B Professional Visas – Savvy Employers Should File on April 1 to Ensure Visas for Their Needed Employees

Dilip Patel


On April 1, employers will be able to file H-1B petitions for their employees who require a first-time H-1B visa for work that will commence on Oct. 1, 2013.

As perhaps the most commonly used visa for professional-level employment in the U.S., the demand for new H-1Bs will exceed the quota very early this year. Indeed, with the improving economy, the United States Citizenship and Immigration Services (USCIS) is likely to receive the full allocation of visa petitions in April, and perhaps even in the first week of filing. Once the quota is reached, new H-1B visa requests will not be accepted until April 1, 2014, and that will be for work that commences on Oct. 1, 2014.

Under the immigration laws, visas for professional specialty workers are capped at 65,000 per fiscal year. Another 20,000 visas are available to workers with advanced degrees (Master’s or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 “H-1B1” visas are set aside each year for nationals of Chile and Singapore (a maximum of 1,400 for Chile and 5,400 for Singapore).

While the vast majority of H-1B applicants in business are subject to the cap, some H-1B petitions can be filed at any time because they are exempt from the numerical cap. These include petitions for physicians with certain J waivers, as well as petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations. Also, petitions filed on behalf of current H-1B workers who previously have been counted against the cap are not counted again. This means H-1B petitions for extension of status, change of employment, or concurrent employment may be submitted at any time.

Employers should now identify first-time H-1B employees and begin preparing necessary petitions for the April 1 filing date. In addition, there are a number of steps employers must complete before filing an H-1B petition with USCIS, including obtaining certification from the Department of Labor regarding the position wage. Employers should take time now to collect academic and work-experience documentation; secure translations and educational evaluations, where appropriate; organize wage and compensation data; and prepare detailed job descriptions.

Moreover, with increased denial rates and skyrocketing requests for additional evidence, employers are well advised to meticulously and carefully prepare their petitions. (Denial rates for H-1B petitions increased from 11 percent in FY07 to 17 percent in FY11. RFEs (“Requests for Evidence”) rose from 4 percent in FY04 to 26 percent by FY11.) A review of company H-1B public access files also may be prudent to ensure that files are complete and in full compliance as well as to determine that valid employer-employee relationships have been maintained.

U.S. Spends More on Immigration Enforcement than the Combined Funds of All Other Federal Criminal Law Enforcement Agencies

In a January 2013 report, the nonpartisan think-tank Migration Policy Institute (MPI) found that the U.S. government spends more on federal immigration enforcement than on all other principal federal criminal law enforcement agencies combined, with nearly $18 billion spent in fiscal year 2012. This is approximately 24 percent higher than the collective spending for the FBI, Drug Enforcement Administration, Secret Service, U.S. Marshals Service, and Bureau of Alcohol, Tobacco, Firearms and Explosives. MPI also found that U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) refer more cases for federal prosecution than all Justice Department law enforcement agencies.

MPI’s comprehensive report offers a detailed analysis of the current immigration enforcement system and traces the evolution of the system, particularly in the post-9/11 era, in terms of budgets, personnel, enforcement actions, and technology. The result is the creation of a complex, interconnected, cross-agency system – in some ways by deliberate design; in others, by happenstance.

Six distinct pillars identify how this modern-day system is organized: border enforcement, visa controls and travel screening, information and interoperability of data systems, workplace enforcement, the intersection of the criminal justice system and immigration enforcement, and detention and removal of noncitizens. “This modern-day system,” says its authors, “extends well beyond U.S. borders to screen visitors against multiple intelligence and law enforcement databases before they arrive and also reaches into local communities across the country via partnerships with state and local law enforcement, information sharing and other initiatives.”

The following are among the report’s key findings:

For the last many years, “enforcement first” was sought by successive congresses and administrations as a precondition for reforming the nation’s immigration laws. The report makes clear that changes to the system accomplished this goal, having focused almost entirely on building enforcement programs and improving their performance. The findings pave the way for comprehensive immigration reform, given that the country’s enforcement priorities have been met.

States Differ on Whether DACA Grantees Can Be Issued Driver’s Licenses

In response to the new federal DACA (deferred action program for childhood arrivals) program, state governments are now grappling with related issues and policies administered at the state level. Most pressing is whether those qualifying for the program can obtain driver’s licenses, and states already have responded with disparate results. For example, Arizona and Nebraska have barred DACA recipients from getting driver’s licenses. Others, such as Iowa and Michigan, initially denied driver’s licenses to such individuals but after lawsuits by pro-immigrant activists (who argued, among other things, that DACA grantees won’t be able to take their children to school or drive around for errands), have since changed their policies. More recently, North Carolina stated that DACA grantees must be issued a North Carolina driver’s license in accordance with state law. For a list of state policies, see the exhaustive document compiled by the National Immigration Law Center. http://www.nilc.org/dacadriverslicenses.html

Other related issues also are starting to percolate up from the states. For example, are DACA grantees eligible for commercial and professional licenses, most commonly issued by state governments? State courts are now hearing cases involving the ability of law graduates who pass the bar exam to get a license to practice law. Last year, the Justice Department wrote an opinion that undocumented immigrants are not allowed to receive state- and federally issued commercial and professional licenses, but the opinion did not specifically address DACA grantees.

Stay tuned.

How to Change Your Nonimmigrant Visa Application (DS-160) After Submission

Foreign nationals who must apply for a nonimmigrant visa must do so online by completing Form DS-160. What happens when you make a mistake and want to correct the form before your visa appointment? While it is not possible to change information on a DS-160 after it has been submitted, there are two options for creating a new DS-160 and effecting a “correction.”

If the error is discovered within 30 days from when the original application was submitted, an applicant should log into the Consular Electronic Application Center (CEAC) system and select “Retrieve an Application” using the application ID number. Next, when asked whether to go to the confirmation page or create a new application, select create a new application. The entire application will appear, except for travel plans to the U.S. Here, edit and update the information and re-submit.

Alternatively, if the “DAT” file was saved from the original application, access and amend the information at any time from the already submitted application. Once the changes have been made, save and submit the new application.

The State Department advises, however, that if the original DS-160 was used to make the visa appointment or pay the MRV (machine-readable visa) fee, the applicant must present at the interview the confirmation pages from the new and original DS-160, as each submission creates a different barcode.

News in Brief

The following additional items may be of interest to our readers:

New $165 USCIS Immigrant Fee Now in Effect: As of February 1, an any individual who receives an immigrant visa package from a United States consulate or embassy abroad (including Canada and Mexico) must pay a new $165 USCIS immigrant fee.

DOS Online Resources: DOS has introduced its online “Visa Status Check,” which allows both immigrant and nonimmigrant applicants to check the status of their cases at the CEAC system. https://ceac.state.gov/CEACStatTracker/Status.aspx.In addition, DOS is promoting its online resource for estimating wait times for visas. Advance planning and early visa application are important. At this site, individuals can select a U.S. embassy or consulate by city or country for specific wait times for interview appointments and visa processing. Those seeking appointments at their home consulates should regularly check the appropriate processing information before making travel plans, because processing times often change without notice. Visa applicants are also advised that most posts have an expedited interview appointment procedure, if needed, and emergent reasons can be demonstrated. http://travel.state.gov/visa/temp/wait/wait_4638.html.

DACA Statistical Update: As of Feb. 14, USCIS reports that almost 425,000 DACA applications have been received by the agency – an additional 75,000 or so since mid-December – and almost 200,000 cases have been approved. USCIS has released several informative FAQs on the program, with the most recent issues on Jan. 18. Visit www.uscis.gov/childhoodarrivals.

Dilip Patel of Shutts & Bowen LLP, a Florida Bar board-certified expert on immigration law, can be reached at (813) 227-8178 or e-mail dpatel@shutts.com

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