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November 09-Immigration News

H-1B Cap Count UPDATE for Fiscal Year 2010

As of November 13, 2009, approximately 55,600 H-1B cap-subject petitions had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1B petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, revoked, or withdrawn.

What is a “Cap”

The word “Cap” used in this Update refers to annual numerical limitations set by Congress on certain non-immigrant visa classifications, e.g., H-1B and H-2B. Caps control the number of workers that can be issued a visa in a given fiscal year to enter the United States pursuant to a particular non-immigrant classification. Caps also control the number of aliens already in the United States that may be authorized to change status to a cap-subject classification. The annual numerical limitations generally do not apply to persons who have already been counted against the cap in a particular non-immigrant classification and are seeking to extend their stay in that classification.


The H-1B visa program is used by some U.S. employers to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field and a bachelor’s degree or its equivalent. Typical H-1B occupations include architects, engineers, computer programmers, accountants, doctors and college professors. The H-1B visa program also includes certain fashion models of distinguished merit and ability and up to 100 persons who will performing services of an exceptional nature in connection with Department of Defense (DOD) research and development projects or coproduction projects. The current annual cap on the H-1B category is 65,000. Not all H-1B non-immigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

H-1B Employer Exemptions

H-1B non-immigrants who are employed, or who have received an offer of employment, by institutions of higher education or a related or affiliated nonprofit entity, as well as those employed, or who will be employed, by a nonprofit research organization or a governmental research organization are exempt from the cap.

H-1B Advanced Degree Exemption

The H-1B Visa Reform Act of 2004 makes available 20,000 new H-1B visas for foreign workers with aMaster’s or higher level degree from a U.S. academic institution. For each fiscal year, 20,000 beneficiaries of H-1B petitions on behalf of persons who hold such credentials are statutorily exempted from the cap.

Duplicate H-1B Petitions Filed Requesting Fiscal Year 2010 Employment

USCIS will deny or revoke all petitions filed by an employer for the same H-1B worker if more than one filing is discovered. If multiple petitions are discovered, whether one or more such petitions are approved, USCIS will data enter all those duplicative petitions, retain all fees, and either deny the petitions or, if a petition was approved, revoke the petition. The petitions will not be returned to the petitioner.


An H-1B1 is a national of Chile or Singapore coming to the United States to work temporarily in a specialty occupation. The law defines an H-1B1 specialty occupation as a position that requires theoretical and practical application of a body of specialized knowledge. The beneficiary must have a bachelor’s degree or higher (or equivalent) in the specific specialty. The combined statutory limit is 6,800 per year. The cap for H-1B1 for FY2010 has not been reached as of the date of this Update.

2011 Diversity Visa Lottery Program Registration

The Department of State announces the opening of the registration period for the DV-2011 Diversity Visa lottery. Entries for the DV-2011 Diversity Visa lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Friday, October 2, 2009, and noon, Eastern Standard Time (EST) (GMT-5), Monday, November 30, 2009. Applicants may access the electronic Diversity Visa entry form (E-DV) at www.dvlottery.state.gov during the registration period. Paper entries will not be accepted. Applicants are strongly encouraged not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon EST on November 30, 2009.

The annual DV program makes visas available to persons meeting simple, but strict, eligibility requirements. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years.

Among those not eligible to apply because their countries sent a total of more than 50,000 immigrants to the United States in the previous five years:


PAKISTAN, PERU, PHILIPPINES, POLAND, SOUTH KOREA, UNITED KINGDOM (except Northern Ireland) and its dependent territories, and VIETNAM. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

For detailed information about entry requirements, along with frequently asked questions about the DV lottery, please see the instructions for the DV-2011 DV lottery available at: www.dvlottery.state.gov .

Ranchod Law Group Success Story – Obtaining a No Objection Waiver and your Home Country

Recently we obtained a no objection waiver for our Tanzanian client.

First we contacted the Tanzanian government via phone since there was no information on the website regarding the no objection statement. After a short while and a few explanations of the situation, we were routed through the offices and were connected with a Tanzanian Embassy representative who knew exactly what we were after.

The most important thing on his list was who we wanted this information for! We let the applicant remain anonymous and after being told that the applicant would have to call and get the procedure themselves, the representative rattled off a list of hurdles to cross and documents to send.

The best part of the story is this: we prepared the J-1 waiver application, sent the documents to the US State Department and sent the package of documents required by Tanzania to the Embassy. We got a positive answer within two months! It was amazing since processing times may be lengthy. Neither the applicant nor our offices were contacted and asked for any additional documents so maybe getting it right the first time helped. But with nothing in writing from the Tanzanian government regarding their requirements (it evidently is not the Tanzanian way) it was dicey. We’re glad it worked out and want you all to know that no matter how impossible it can seem to work with your government’s bureaucracy and our government’s bureaucracy the job can get done!

Many top Nobel Prize Winners are Immigrants

According to Chris O’Brian from the Mercury News, in his recent article: Nobel Prizes Remind Us Why Immigration Matters, he comments, before you “puff out your chest and take pride in being American”, note that four out of the six American Nobel Prize winners were born outside the U.S.

While some people might be weary of immigration, the benefits have far outweighed the cost. O’Brian uses Silicon Valley as an example. “Silicon Valley has been a bigger beneficiary of this influx of brains and talent than perhaps any other region in the U.S. …However you feel about the H-1B visas that our tech companies hunger for … We need these immigrants to renew our economy and to prosper.” O’Brian goes on to say that the US needs to recognize the great contributions that immigrations have presented this country both in its economy and its fields of study. For the full story: http://www.mercurynews.com/ci_13500107?source=most_viewed&nclick_check=1

Contact info@ranchodlaw.com to learn about your immigration options.

Disclaimer: 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 and any reliance on this information is taken at your own risk. Please note that laws change frequently.