Archive for February, 2008

Firm Accepting H1B Cap Cases

Sunday, February 17th, 2008

The first filing date for cap-subject H-1B petitions is a little over a month and a half away.  For Fiscal Year 2009, the first filing date is Tuesday, April 1, 2008.  Cap subject petitions received by USCIS before that date will be rejected. Petitions are filed at Vermont and California Service Centers, depending on jurisdiction.   

Our office is currently accepting new cap-subject H-1B cases.  If this year is anything like last year, we expect a heavy demand for H1B numbers.  If you are an employer and wish to sponsor a worker for H1B status, please make sure to contact our office as early as possible.   

Please note that an employer wanting to sponsor a foreign national who currently holds H-1B status can do so (in most situations) without worrying about the H-1B cap.  Our office will provide periodic updates on the H-1B situation over the next few months as new information becomes available.  Please feel free to also check the ‘news’ section of our web site at www.bashyamspiro.com for further updates.

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USCIS Revises Policy on FBI Name Checks and AOS Adjudications

Sunday, February 17th, 2008

The USCIS recently issued an interoffice memorandum that revised its prior policy on waiting until the FBI name check was completed to adjudicate an I-485 Adjustment of Status application.  Under its revised policy, the USCIS now has the authority to adjudicate an otherwise approvable I-485 adjustment application if the FBI name check has been pending for over 180 days but has not been completed.  This does not mean that every adjustment case that has been pending for over 180 days will be approved.  The priority date for the case must still be current at that time for adjustment adjudication to take place.  Copied below is a paragraph from the USCIS Interoffice Memorandum that goes into additional detail on its revised policy. 

A definitive FBI fingerprint check and the IBIS check must be obtained and resolved before an Application for Adjustment of Status (I-485), Application for Waiver of Ground of Inadmissibility (I-601), Application for Status as a Temporary Resident Under Section 245A of the Immigration and Nationality Act (I-687), or Application to Adjust Status from Temporary to Permanent Resident (Under Section 245A of Public Law 99-603)(I-698) is approved.  USCIS will continue to initiate FBI name checks when those applications are received.  Where the application is otherwise approvable and the FBI name check request has been pending for more than 180 days, the adjudicator shall approve the I-485, I-601, I-687, or I-698 and proceed with card issuance.  The FBI has committed to providing FBI name check results within this timeframe.

 

There is no change in the requirement that FBI fingerprint check, IBIS check and FBI name check results be obtained and resolved prior to the adjudication of an Application for Naturalization (N-400).

 

Pending further guidance regarding post-audit reporting and tracking requirements and modifications to associated quality assurance procedures, applications approved pursuant to this memorandum shall be held at the adjudicating office.  If derogatory or adverse information is received from the FBI after the application is approved, USCIS will determine if rescission or removal proceedings are appropriate and warranted.

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Q and A On FY 2009 H-1B Filings

Sunday, February 17th, 2008
U.S. Citizenship and Immigration Services (USCIS) uses the information in Part C of the H-1B Data Collection and Filing Fee Exemption Supplement (Form I-129, page 11) to determine whether a petition is subject to the 65,000 and 20,000 (U.S. master’s degree or higher) H-1B numerical limitation caps. Please be sure to read these questions and answers carefully in advance of completing the petition and filing an H1B case.
 
Q. When can I file an H-1B Cap petition?
 
H-1B petitions can be filed six months in advance of the requested start date. Therefore, petitions seeking an October 1, 2008 start date can be filed no sooner than April 1, 2008. This is when the majority of H-1B cap subject petitions are filed. Conversely, petitions that are cap exempt may be filed at any time during the year, dependent on the petitioner’s need.
 
Q. Where should I mail my H-1B Cap subject petition?
 
Specific mailing addresses have been established for purposes of identification and processing of H-1B cap subject cases. H1B cap cases should be filed at the Vermont Service Center or the California Service center depending on jurisdiction.  A separate mailing address has been established for certain types of educational or nonprofit organizations which file H-1B petitions on behalf of beneficiaries that are not counted against the H-1B numerical limitations.  These cases will be filed at the California Service Center as described in this newsletter.
 
Q.  What is Premium Processing Service?
 
For certain employment-based immigration benefits, petitioners may choose to file a Form I-907 with the accompanying filing fee of $1,000 to have their petition adjudicated within 15 calendar days (this fee is in addition to the required base filing and other applicable fees). H-1B petitions are eligible for the Premium Processing program.
 
The Form I-907 can be filed at the same time as or subsequent to the filing of Form I-129. If filed subsequent to the Form I-129, please be sure to include the receipt number (i.e. EAC 08 123 51234) of the Form I-129 in the pertinent section of Form I-907. Petitioners must use the latest version of Form I-907. Versions prior to August 28, 2006 will not be accepted.  
 
Q. How do I ensure that my H-1B Cap petition is considered properly filed and accepted?
 
Be sure to complete all sections of the Form I-129 petition, the H Classification Supplement to Form I-129 (pages 7 and 8 of Form I-129), and the H-1B Data Collection and Filing Fee Exemption Supplement (pages 10 and 11). Original signatures are required on each form. Send the correct fee amount. 

Tip:  Applicants should use blue ink to sign the petition since this makes it easy for the USCIS to confirm that the signature is an original.

 
Checks should be payable to the Department of Homeland Security or U.S. Citizenship and Immigration Services dated within the last six months, and include the proper guarantee amount, and signature.
 
A certified Labor Condition Application (Form ETA 9035) from the Department of Labor must be submitted at the time of filing. A copy of the Labor Condition Application is acceptable. If the Labor Condition Application from the Department of Labor is for multiple positions, provide the name, and USCIS case receipt number of any alien who has previously utilized it.
 
A duplicate copy of the petition must be submitted at the time of filing if the beneficiary will be seeking nonimmigrant visa issuance abroad. Please review the Department of State website at http://travel.state.gov/ to make sure that the consulate indicated on Form I-129 is able to process the beneficiary’s nonimmigrant visa application and for any other consulate-specific special instructions.

Posted in H1B Visas, News | 2 Comments »

USCIS Announces Centralized Procedure for Filing H1B Applications for Cap-Exempt Employers

Sunday, February 17th, 2008
U.S. Citizenship and Immigration Services (USCIS) announced a new customer service initiative to streamline the adjudication of H-1B petitions. USCIS will employ a special unit dedicated to processing these types of H-1B cap exempt petitions at the USCIS California Service Center (CSC). Foreign nationals employed by certain types of educational, nonprofit or governmental organizations, as defined below (normally referred to as “cap exempt,” aliens employed by such entities are not subject to the H-1B numerical limitations). See section 214(g)(5)(a) and (b) of the Immigration and Nationality Act (INA); and 8 CFR 214.2 (h)(8)(A).

 
H-1B “cap exempt” petitions, as referenced here, include petitions filed by: 



•                     Institutions of higher education, as defined in section 101(a) of the Higher Education Act of 1965, 20 U.S.C. 1001(a);]
•                     Nonprofit organizations or entities related to or affiliated with institutions of higher education; and
•                     Nonprofit research organizations or governmental research organizations, as defined in 8 CFR 214.2(h)(19)(iii)c).
 
Such institutions and organizations can indicate that the H-1B filing is cap exempt by marking Form I-129 (Petition for Non-Immigrant Worker) with a “yes” answer to question 1, 2, or 3 in Part C of the H-1B Data Collection and Filing fee Exemption Supplement (page 10).
 
H-1B petitioners are now encouraged to use the following special mailing address for qualifying H-1B cap exempt petitions. To determine if your petition qualifies, please make sure your institution or organization fits one of the categories listed above.
 
For Direct Mail:
 
            U.S. Citizenship and Immigration Services
            California Service Center
            ATTN: CAP EXEMPT H-1B Processing Unit
            P.O. BOX 30040
            Laguna Niguel, CA 92607-3004
 
For non-United States Postal Service (USPS) deliveries (e.g. private couriers):
 
            U.S. Citizenship and Immigration Services
            California Service Center
            ATTN: CAP EXEMPT H-1B Processing Unit
            24000 Avila Road, Room 2312
            Laguna Niguel, CA 92677
 
Each H-1B petitioner is encouraged to mark the outside of the envelope and the top margin of the I-129 form, with “EXEMPT”. This will ensure quick identification of the H-1B filing throughout the petition’s processing at CSC.
 
If a cap exempt H-1B petition is received at a different Service Center, that Service Center will expeditiously forward the petition to the CSC for processing. In the near future, USCIS will post special filing instructions to Form I-129 requiring all qualifying H-1B cap exempt petitions to be filed at the CSC.

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