You may apply for most nonimmigrant visas up to 6 months in advance.  Accordingly, the first day for filing for the 2010 - 2011 H-1B visas will be April 1, 2010.  Last year was the first time in many years that all available visas (65,000 + 20,000) were not immediately allocated.  The sagging economy coupled with the very high unemployment rate resulted in H-1B visas being available through December 2010.  This trend is likely to continue as the economy continues to struggle and the unemployment rate is even higher now than it was last year. 

There are a number of factors that have contributed to this.  Sadly, it does not include a removal altogether of the cap which has only served to damage the economy, cost jobs for U.S. workers and limit employer's access to vitally needed skilled workers.  The cap exists only because politicians (falsely) claim that it "protects U.S. workers."  As is often the case in U.S. immigration law, this law does exactly the opposite of what it claims to do, and the U.S. economy suffers.  The highly skilled workers who are represented by the H-1B visa are the lifeblood of today's economy.  Arbitrarily restricting access to these invaluable resources only hurts the economy and makes it more difficult for U.S. employers to remain competitive. 

Frustration over the stubborn refusal by the government to allow qualified workers to work in the U.S. was identified as the key reason why Microsoft Corporation - the single largest user of H-1B visas - decided to relocate its entire R&D facility outside of the U.S. to Vancouver, Canada.  This dramatic response is a clear example of how the U.S. economy is hurt by laws based on raw politics rather than reason.  Microsoft continues to employ these workers, but they pay taxes to Canada, they spend the bulk of their incomes buying goods, food and services in Canada and providing additional jobs for Canadians who provide all of these goods and services.  The next time a U.S. corporation is attacked by the so-called pundits for "off shoring U.S. jobs," the simple response should be that jobs would not be sent overseas if the companies were allowed to hire qualified workers to fill those jobs in the U.S.  

 A recently released Memo from USCIS Associate Director, Donald Neufeld,  (http://www.uscis.gov/USCIS/Laws/Memoranda/2010/H1B%20Employer-Employee%20Memo010810.pdf) appears to be a crackdown on perceived abuses in the H-1B visa.  The focus of the Memo is the "Employer-Employee" relationship and how this would apply in non-traditional employment settings such as independent contractors, self-employed beneficiaries and beneficiaries at Third Party worksites.  The Memo notes that a key issue of examination will be whether or not the petitioner maintains the "right to control" the "when, where and how" the beneficiary performs the job.  The Memo also tries to draw a distinction between appropriate "on-site" control and overall control. 

The Memo tries to offer examples to clarify the key issues, but some of the examples only add to the confusion.   The Memo does address several non-traditional employment scenarios that would be permitted, but it leaves unanswered many questions for legitimate H-1B workers.  One area of major vulnerability would be Doctors who provide medical services to a variety of hospital and clinic situations.  State rules often specifically prohibit the type of employment structure that the Memo would accept, leaving physicians especially vulnerable to enforcement action as this Memo is implemented. 

Sources make clear that a key target of this action are those companies that have been set up to capitalize in the artificial shortage of qualified engineers and other specialty workers that has been created precisely because of the numerical cap.  The typical scenario for these companies would be to file large numbers of H-1B petitions, claiming that the company seeks to employ the worker full time, by placing that worker at the job site of the "client" who has "retained" the company to provide these services.  The reality is that these companies are simply "renting" workers (e.g., software engineers, computer programmers) who would otherwise be directly hired by the end user companies, if H-1B visas were still available.  These companies profit much the same way that ticket scalpers profit.  They "buy" up (apply for) limited "tickets" (visas) and then re-sell the "tickets" (workers) at a substantial markup. 

We support in principal the efforts of the Service to address these abuses, but we believe the simple solution is not through enforcement, but rather the elimination of the cap.  In the meantime, we caution our clients that this will doubtless produce a dramatic increase in denials and Requests For Evidence.  There are also reports that at selected airports there have been sweeping enforcement actions directed towards incoming H-1B workers who are being challenged to produce documented "proof" on all of these issues.  We caution all travelers to obtain current employment letters and to carry with them full copies of their petitions.  WLO will keep you posted on these developments as more information comes available. 

Watson Law Offices has teamed up with GoToMeeting.Com to be able to host FREE Webinars on a variety of Immigration topics.   These topics will include "Tips on Filing H-1B Applications," "Understanding / Locating Processing Times," and  "Workplace Enforcement - What To Do."  These FREE programs will allow up to 15 callers to participate.  Each program is expected to last approximately 45 minutes, with additional time at the end of the program to take questions from participants.  

 
We are working on ways to subsequently make the information available as a download on our website.  However, in the meantime if there is sufficient demand, we may provide an opportunity to schedule duplicate Webinars. 

The U.S. Department of State has now published the latest Visa Availability dates for March 2010.  If you know your category and you have your Priority Date, you may go directly to their website to check.  The monthly Visa Bulletin will also provide current information on Visa Lottery.