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H-1B Filing Season Begins on April 2
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No more H-1B visas, subject to the annual cap, are available until October 1, 2012, when fiscal year 2013 begins. Employers must get ready to file their "new" H-1B petitions to be counted against the annual H-1B quota for FY 2013, which USCIS will begin accepting on Monday, April 2, 2012. The earliest start date for employment is October 1, 2012.
Employers should consider which employees will need H-1B status. Individuals currently employed as F-1 students or J-1 trainees, individuals seeking to change to H-1B from L-1, TN, E-3 or other status, and individuals outside of the United States usually require new, cap-subject H-1Bs.
A total of 85,000 new H-1Bs are made available each year - 65,000 under the "regular cap" and 20,000 under the "Master's cap" for those with advanced degrees from U.S. universities and colleges.
In prior years, the H-1B cap was reached within the first few days of filing, resulting in a random, computer-generated lottery for available visa numbers. Since FY 2010, however, the cap has been reached later in the year.
Employers should allow enough time to prepare the petition, which includes filing for and receiving certification of the required Labor Condition Application (LCA) and, in some cases, obtaining a Prevailing Wage Determination from the U.S. Department of Labor (DOL).
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USCIS Reveals Streamlined Process for Submitting Information Used in VIBE
USCIS recently announced a new streamlined online process for certain USCIS petitioners and other U.S. government customers to submit information about their organizations into the Validation Instrument for Business Enterprise (VIBE) database. Introduced in May 2010, VIBE is a Web-based tool for adjudicators handling most employment-based (EB) immigration petitions. The independent information provider (IIP), Dun & Bradstreet (D & B), launched the new process in December 2011, enabling eligible petitioners to update their company or organization information via D&B's iUpdate for U.S. government customers Web page. USCIS does not require petitioners to contact D&B. But certain USCIS customers filing employment-based petitions that qualify for VIBE may, at no cost, use the iUpdate link to contact D&B to create, update and view basic elements of their organization's D&B record, without being subjected to direct marketing from D&B.
VIBE uses commercially available data from the IIP to validate basic information about companies or organizations petitioning to employ certain alien workers. The new process is available for U.S.-based, privately held companies only. U.S.-based publicly traded companies, government entities, and foreign companies can still create, update or view their report by contacting D&B at www.dnb.com, but may be subjected to direct marketing from the firm. Entities updating their information through the D&B website may encounter D&B representatives who may suggest a purchase of the firm's products and services. USCIS does not endorse D&B or its products or services, and does not suggest that anyone purchase products or services from the firm in order to ensure that information is complete. Additionally, USCIS does not require fees to be paid in order to expedite the creation of a new record or to update an existing record.
iUpdate for U.S. government customers is a free, password-protected and encrypted online service tool offered by D&B. Its users will be asked a series of short challenge questions, based on geographical and demographic data, for the purpose of authenticating and establishing an ID and password. Only those with access to a business or organization's established ID and password will be able to access the business or organization's information. The information displayed in iUpdate for U.S. government customers contains essentially the same data that is shared with USCIS via the VIBE system, and will allow petitioners to know how their business or organization will be presented in VIBE before they file a petition with USCIS.
To maintain accuracy of significant business information, D&B requires that certain change requests be verified by a third party prior to official entry into the D&B system. If verification cannot be confirmed, the change request will be denied. USCIS advises that this policy exists to protect companies and organizations from possible identity theft and fraud.
USCIS has also issued questions and answers (Q&A) on VIBE. Questions addressed include what VIBE is, what petitions are included in VIBE, what information VIBE provides immigration services officers, how using VIBE affects processing times, and questions about Dun and Bradstreet, including the new iUpdate.
VIBE includes most employment-based petitions, such as Form I-129, Petition for a Nonimmigrant Worker; Form I-140, Immigration Petition for Alien Worker; and Form I-360, Petition for Amerasian, Widow(er) or Special Immigrant. VIBE is not currently used for E11 individuals of extraordinary ability, E21 national-interest waivers, EB-5 investors, O (extraordinary ability or achievement) and P (athletes, artists, and entertainers) nonimmigrant petitions, and Commonwealth of the Northern Mariana Island (CNMI) transitional workers and long-term foreign investors.
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CBP Issues Standards for Accepting and Adjudicating L-1 Petitions for Canadians Under NAFTA
On January 3, U.S. Customs and Border Protection (CBP) issued a fact sheet describing the standards that officers must apply when deciding whether to accept L-1 petitions from Canadians at a port of entry under the North American Free Trade Act (NAFTA). The fact sheet also discusses the burden of proof, the standard of review, what constitutes a complete I-129 petition with supporting documentation, and denial of deficient petitions.
CBP's published standards include new procedures for ensuring a petition submitted to the agency is subsequently forwarded to U.S. Citizenship and Immigration Services (USCIS). CBP will accept a prepaid Express Mail Flat Rate Envelope submitted with the L-1 petition and an application for admission. The prepaid mailer must to be addressed to either the USCIS California Service Center or the USCIS Vermont Service Center, depending on the location where the beneficiary will work. USCIS , in turn, will issue a Form I-797 Notice of Approval and send it to the petitioner after the beneficiary is admitted to the United States on an L-1. |
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