H-1B Cap

In 2004 the H-1B cap was reduced to 65,000 visas. In 2007 the H-1B cap was met on the first day. Over 100,000 applicants applied for the H-1B visa and the United States Immigration Service (USCIS) held a lottery to determine who would be the lucky winner of the H-1B visa lottery.

This year, H-1B petitions may be filed on April 1, 2008 for employment that commences on October 1, 2008. We are currently preparing H-1B petitions for applications that may be submitted on April 1, 2008 and if you have any questions regarding H-1B eligibility please contact our office.

Application Fees for Nonimmigrant visas increased on January 1, 2008

As of January 1, 2008, the fee to process a nonimmigrant visa (MRV) or Border Crossing Card (BCC) application has increased from $100 to $131 while the fee to process immigrant visas has increased to $355.

The Department is legally required to recoup the cost of processing nonimmigrant visas by collecting the Machine-Readable Visa application fee. This fee has been raised twice since 9/11 and was last raised in 2002.

Applicants who paid the former $100 application fee before January 1 will only be processed if they have been scheduled for and will appear at a visa interview prior to January 31, 2008. Applicants who paid the former fee but will have their visa interviews after January 31 must pay the $31 difference before they may be interviewed.

New I-9 Form

Employers Must Use the New I-9 Form after December 26 or be penalized with all applicable fines.

H-2B Visa Cap

On January 2, 2008 USCIS reached the H-2B cap for petitions requesting a start date before October 1, 2008.

The H-2B visa permits US employers with seasonal, periodic or peak-load needs to use temporary workers to supplement their workforces. This visa category also permits employers to increase their workforces temporarily if a one-time event makes it necessary. H-2B workers are generally needed in health care, landscaping, construction, lumber, food service and processing, resort and hospitality services, and manufacturing.

USCIS permits employers to file for H-2B visas up to 6 months in advance, but to do so, H-2B petitioners must first receive temporary labor certification from the Department of Labor (DOL). The DOL does not allow employers to file for temporary labor certification more than 120 days before they need temporary employees. Therefore the USCIS usually does not begin receiving H-2B petitions for October posts until June or July.

What is the H-2B Numerical Limit?

Congress limits the number of H-2B visas granted to 66,000. As of October 1 this year, Congress has yet to amend the “returning worker” provisions of 2005’s Save Our Small and Seasonal Businesses Act (SOS Act) to include the 2008 fiscal year.

Before October 1, if a petition was approved solely to (a) extend an alien’s stay under H-2B status, (b) to change or add or employers, or (c) to alter the terms of employment, then the worker would not be counted against the limit. However, an alien who changed his or her nonimmigrant status to H-2B would normally be counted against the 66,000-worker quota.

Does USCIS authorize more H-2B workers than the 66,000 limit?

USCIS decides H-2B petitions on the basis of the facts that the petitioner presents in his or her petition. In the event that the H-2B petitioner’s alien beneficiaries are abroad, USCIS will send the approved petitions to the Department of State (DOS) for processing at the consulate. However, employers may decide that they no longer need the aliens for whom they petitioned. In these cases, the DOS will not issue H-2B visas to those aliens. Additionally, if the applicant is unable to demonstrate that he or she intends to return home after their temporary employment in the U.S., the consular officer may deny the H-2B visa. In other cases, after H-2B visa approval some aliens do not appear at the consular post for their visa interviews. Finally, the DHS Customs and Border Protection (CBP) may decide at a port of entry that an approved H-2B petitioner’s beneficiary is inadmissible and refuse to allow the beneficiary to enter the US.

Due to these “dropouts,” USCIS authorizes more potential H-2B workers than the number of visas issued for approved petitions, which are the basis of the numerical limit.

E-Verify Policy for Large Employers

The Department of Homeland Security (DHS) has introduced a new policy in which a company with more than 1000 employees can sign a single MOU that will cover all hiring sites chosen by the company for E-Verify. Carrying out this MOU will produce one E-Verify identification number that can be used for the whole company or whichever part of it participates in the E-Verify program. When a company decides to use E-verify for some or all of its hiring sites, the address of the corporate office must be used on the MOU. When enrolling in E-Verify this way, employers should use the “multiple site” button during registration. At the “multiple site” button, the company should enter the number of hiring sites (per state) that will first participate in E-Verify. The number of hiring sites that participate in E-Verify may be changed later, in accordance with the company’s later decisions and actions. For example, when a company expands and/or decides to explore business opportunities in other parts of the US, the number of sites may change and the company may decide to enroll some, all or none of its sites in E-Verify. Such changes should take place on the company’s E-Verify profile. Regardless of the hiring site’s initial title (local office, satellite office, branch office, etc.), the decision to use or not to use E-Verify must be done in a way that is nondiscriminatory.

Note: the DHS has yet to amend MOU to reflect this new policy, but is currently considering such an amendment.

Kaushik Ranchod

This information is not intended to provide solutions to individual problems and does not constitute an attorney client relationship. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek competent legal counsel before relying on this information. The above information should not be construed as legal advice. Please note that laws change frequently.