News From Ross Silverman LLP

As many of you know, H-1B "Cap Season" will soon be upon us. U.S. employers will be eligible to file petitions for H-1B visa numbers under the FY2014 cap on April 1, 2013, requesting an October 1, 2013 start date. As a reminder, there is a limit or "cap" of 65,000 new H-1B visa numbers issued every fiscal year, with an additional 20,000 visa numbers available to individuals who hold a Master's degree or higher from a U.S. institution. Some petitioners, such as universities, teaching hospitals, and non-profit research institutions, are exempt from this cap.

Over the past several years, H-1B visa numbers have been available under the cap for at least a few months after April 1 - for FY2013, the cap was reached on June 11, 2012. However, given the improvements in the economy and reports of skilled worker shortages in several specialty occupation industries (most notably, computer-related positions), it is anticipated that the cap will be reached earlier this year, perhaps as early as the first week that visas are available.

Under the law, USCIS will hold all H-1B petitions for new employment received between April 1 and April 5, 2013 to determine whether a sufficient number of petitions have been received to reach the cap. If a determination is made that the cap has been met, then all of those petitions will be entered into a computerized lottery for selection under the H-1B cap for FY2014. We therefore strongly encourage that employers file all H-1B petitions for FY2014 cap numbers during the first week of April to ensure consideration for a cap number.

Potential H-1B Cases & F-1 Cap Gap Rules

We suggest that you review your personnel records to identify nonimmigrant workers who may need or want to change status to H-1B prior to October 2014; specifically, those employees who are currently holding F-1 Optional Practical Training (OPT), TN, L-1, E-3, or H-1B1 status.

Individuals who are currently on F-1 OPT are in a unique situation. If the OPT expires between April 1 and October 1, 2013, then those individuals for whom a FY2014 H-1B petition is timely filed and accepted for processing will be eligible for a "cap-gap" extension. This means the individual's OPT status and work authorization will be automatically extended until the H-1B process is complete and the petition is approved, denied, or rejected. If the petition is approved, OPT is extended until September 30. If the petition is denied or rejected, the beneficiary has a 60-day grace period after the denial or rejection date (or the end of the original OPT authorization, if that is later) in which to depart the country or obtain a different status. In reviewing your personnel records, you should identify any employees whose OPT expires before October 2014 as employees who should be considered for H-1B sponsorship during FY2014.

To the extent possible, you should also identify other potential employees who may require H-1B status, and contact our office to begin the H-1B process for these individuals as far in advance of April 1 as possible.

In past newsletters, we have provided FAQs that often come up once the H-1B cap is reached, which you can access here and here. As always, please also feel free to contact the attorney with whom you work with any questions or concerns.

H-1B Fraud Indicators

In response to litigation initiated under the Freedom of Information Act (FOIA), USCIS has released internal documents identifying the criteria used by adjudicating officers to assess fraud in connection with certain H-1B petitions. These criteria have been in place since 2008, so the documents do not reflect a change in the government's H-1B adjudication procedure. Rather, they confirm and specifically identify the "fraud indicators" that result in greater scrutiny of H-1B petitions. In particular, the USCIS Fraud team focuses on petitions submitted by small and start-up businesses, as well as certain types of positions at these businesses. H-1B petitioners with a gross annual income of less than $10 million, with 25 or fewer employees, or that were established within the last 10 years are presumed to be more susceptible to fraud, and certain positions at these companies trigger greater scrutiny, including Accountants, Market Research Analysts, Budget Analysts, Business Management Analysts, Financial Analysts, and Managers. When these factors are present, USCIS will look for inconsistent or incomplete information in the petition and will scrutinize any documents submitted for authenticity and credibility.

The attorneys at Ross Silverman will continue to assess each H-1B on a case-by-case basis, considering the relevance of these criteria to the case and advising and preparing petitions to counter the "fraud indicators" as necessary. However, employers who meet these threshold indicators should be prepared for the possibility of a Request for Evidence (RFE) from USCIS. Please note that USCIS also indicated in one of the documents that L-1 petitions filed by smaller companies, as described above, will be subject to a presumption of fraud and face higher scrutiny.

Copies of the USCIS internal documents, which include further explanation of petitioner fraud indicators, beneficiary fraud indicators, and fraud indicators for the positions listed above, as well as additional information about the FOIA lawsuit, may be found here.

Visa Interview Waiver Program Expands in India

The State Department has announced the expansion of the Interview Waiver Program (IWP) to further streamline the processing of nonimmigrant visa renewal applications at the U.S. Embassy and Consulates in India. Under the current program, Indian visa renewal applicants who meet specific age criteria or who are applying for a Business/Tourism (B-1/B-2), Dependent (J-2, H-4, L-2), Transit (C), and/or Crew Member (D) visa may request a waiver of an in-person interview with a consular officer. Under the expanded IWP, certain Indian nationals applying to renew their H-1B, individual L-1A, or individual L-1B visas may now request a waiver of the in-person interview as well. This expansion should benefit thousands of employment-based visa applicants, and is one of many steps taken by the State Department in recent months to meet increased visa demands in India. Because this is a new policy, all nonimmigrants traveling to India in the coming months are encouraged to contact the Embassy or Consulate directly to confirm whether they are eligible to apply for a waiver of the in-person interview. More information about this program can be found here. Some of the previous changes to the visa application process in India were highlighted in our November 2012 newsletter, which you can find here.

Legislative Update

As most of you are likely aware, comprehensive immigration reform (CIR) is once again in the news. This week, a bi-partisan group of Senators proposed an initial framework for an overhaul of the nation's immigration system, and President Obama is laying the groundwork for proposed reforms. According to reports, the Senators hope to propose legislation based on their framework by the end of March. CIR has been proposed in the past in many different ways without success, though there does seem to be a broader base of support this time around. While we are cautiously optimistic that this support will lead to real reforms in the coming year, it is too soon to begin to assess how these reforms may affect your employees or your business practices. That said, once a bill has been proposed and Congress begins to act on it, we will keep you informed of the details and progress.

Military Accessions Vital to National Interest Recruitment Pilot Program

It has come to our attention that the U.S. military has recently reinstated a program that could benefit immigrants presently in the United States. The program, known as the Military Accessions Vital To National Interest (MAVNI) Recruitment Pilot program, authorizes the military to recruit certain legal aliens whose skills are considered vital to the national interest. Those holding critical skills, such as physicians, nurses, and certain experts in language with associated cultural backgrounds, are eligible to enlist in the U.S. military. More specific information about the program may be found here.

In the News: What's Happening at RS

Publication: Christine Gannon recently co-authored a chapter in the Massachusetts Continuing Legal Education (MCLE) publication, Breaking Barriers: The Unfinished Story of Women Lawyers and Judges in Massachusetts, focusing on the history of sexual assault law in Massachusetts, as seen through the experiences of women attorneys who worked on the issues and created the landscape for what exists today.

January 10, 2012: Sharryn Ross spoke on a panel for an AILA webinar about degree equivalency.

March 1, 2013: Sharryn Ross will be speaking about PERM at the AILA New England Conference in Boston.

May 10, 2013: Heidi Snyder is co-chairing the 12th Annual MCLE Immigration Law Conference, and will be speaking on a panel entitled, "Law Office Management - Contingency Planning for Solo or Small Immigration Firms and Other Practice Management Tips." Howard Silverman will be speaking about ICE Enforcement & Removal Operations, and Sara Fleming will be presenting about, "J-1 Waivers for Physicians - Tips for the Uninitiated."

This newsletter does not constitute legal advice and is not a substitute for consulting with an attorney. Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.