CIS Will Likely Need Until The End of May to Sort Out Accepted and Rejected H-1B Cap Cases 04/16/2013
Posted by Morse, Barnes-Brown Pendleton in Immigration, Legal Developments.Tags: H-1B cap, immigration, USCIS
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In recent alerts, we have informed clients that the H-1B Caps had been reached and the lottery had been held, provided a FAQ in regards to the H-1B Cap, and provided an alert describing the H-1B caps and provided an overview of eligibility for the status.
At a recent conference, an official at the U.S. Citizenship and Immigration Services (“CIS”) informed the audience that CIS would first process data entry for the H-1B cap cases filed requesting premium processing, and that they expected data entry for those cases would be completed by April 15. Note that this is the only preferential treatment that CIS is providing to premium processed cases. CIS must process those cases first as they are required to make an initial determination on all premium processed cases by May 1st. Premium processed cases did not receive any preferential treatment in the lotteries.
Once data entry is complete on the premium processing cases, CIS will begin data entry for all other cap-subject H-1B cases. CIS anticipates that data entry for the non-premium processed cases will continue until sometime in May, and rejection notices for petitions not selected in the lottery will be sent out after that.
Unfortunately this information confirms our prediction in the H-1B Cap FAQ that both the employers and sponsored employees will likely need to wait another month or more before they will definitively know whether the case was accepted for processing or not.
We again encourage anyone who is in Human Resources or Recruiting who are interested in learning more about the other work authorized visa categories to attend our event on May 9th, “Alternatives to H-1B Visas.”
“Getting in Line”: A flawed concept in the Immigration debate 04/12/2013
Posted by Morse, Barnes-Brown Pendleton in Immigration, Legal Developments.Tags: getting in line, green card, immigration, USCIS
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By: Grant Godfrey
Anyone who has navigated through our maze of immigration laws understands that it is complicated and takes a long time. An NBC news article published today sheds light on how the concept of “getting in line” for a Green Card is a dramatic oversimplification of our current system. The better questions are: (a) which line do you have to get in?, (b) how many years are you going to have to wait?, and (c) is there even a line available to you?
To help you answer these questions and more, please contact any member of our Immigration Practice Group.
H-1B Cap for 2014 Reached in First Week 04/09/2013
Posted by Morse, Barnes-Brown Pendleton in Immigration, Legal Developments.Tags: H-1B cap
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On April 5, 2013, the Citizenship and Immigration Services (“CIS”) announced that for the first time since 2008, the “Regular” and “U.S. Master’s Degree” H-1B caps for the 2014 fiscal year had been reached during the first week that they were available. More information regarding the H-1B Caps can be found in our March Immigration Alert Newsletter. CIS is required to keep the H-1B caps open for at least the first 5 business days, and during that filing period, CIS received approximately 124,000 H-1B petitions under both the “Regular” and “U.S. Master’s Degree” caps.
On April 7, 2013, CIS used a computer-generated random selection process to select the petitions it would accept for processing. CIS conducted the lottery first for the “U.S. Master’s Degree” cap. All petitions not selected in the first lottery were then added to the “Regular” cap pool, and the lottery was then conducted on the remaining petitions.
Any petition that was not selected for processing will be rejected and returned with the filing fee. As discussed in the FAQ that we released last week regarding the lottery, there is not a good method to quickly know whether a petition has been accepted for processing or not.
Foreign workers whose petitions were rejected may have other options available, and should speak to an immigration attorney to determine if they would qualify. We encourage anyone who is in Human Resources or Recruiting to attend our event on May 9th, “Alternatives to H-1B Visas.”
Frequently Asked Questions on the H-1B Cap 04/03/2013
Posted by Morse, Barnes-Brown Pendleton in Client News, Immigration, Legal Developments.Tags: frequently asked questions, H-1B cap, immigration FAQs
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By: Grant Godfrey
MBBP recently sent an Immigration Alert that the FY 2014 H-1B season will open on April 1st, allowing companies to sponsor foreign nationals for new H-1B “specialty worker” visas, and cautioned employers that this year’s H-1B Cap numbers could be reached within weeks, if not days of the cap opening up. The U.S. Citizenship & Immigration Service (“CIS”) recently issued a press release that it anticipates the H-1B Cap could be reached in the first week of April. We have assembled a list of frequently asked questions to help employers, and their employees, understand the implications if the H-1B Cap is reached quickly.
Please visit our resources page to view our full article on “Frequently Asked Questions on the H-1B Cap“.
MBBP Immigration Event: Alternatives to H-1B Visas 03/20/2013
Posted by Morse, Barnes-Brown Pendleton in Events, Immigration, Legal Developments, MBBP news.Tags: h-1b visa, immigration, STEM extention
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On Thursday, May 9th MBBP is hosting a complimentary immigration event on the topic of “Alternatives to H-1B Visas“. With the economy steadily improving, over the past two years the H-1B cap has been reached very quickly. The most recent year, it was reached in approximately two months.
This timely event will provide an overview of other visa options employers have to utilize the best available talent, including: 17 Month STEM Extensions, L, TN, O, E and B visas. We will address the advantages and pitfalls of each visa category, and will also host a question and answer session.
Please visit our event page for more details and to register.
The Uncertain Future of E-Verify? 02/11/2013
Posted by Morse, Barnes-Brown Pendleton in Client News, Immigration, Legal Developments.Tags: background checks, e-verify, I-9 employment verification, social security administration
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By: Donald Parker
E-Verify is an online system operated by the Social Security Administration (“SSA”) and the Department of Homeland Security (“DHS”) that allows employers to check both the validity of a new employee’s Social Security Number and whether that employee is authorized to work in the United States. On the drawing table in various forms since 1996, but revived and re-implemented in 2007, E-Verify has to-date been a voluntary system for most employers in the United States. Once an employer registers with E-Verify it is required, however, to process all new hires through the E-Verify system.
E-Verify is intended to be an add-on to the I-9 Employment Verification process that has been required of all employers for several decades. Many of our clients have registered with E-Verify and the returns so far have been largely positive. While the system can occasionally return false positive data that can then take several weeks to get resolved with the SSA and DHS, these problems are not common. Indeed, this bright-line test approach has its advantages. Employers in industries that have a high level of workers without proper legal authorization to work like the ability to determine up front whether the employee’s Social Security Number is valid and/or whether the employees in fact are authorized to be employed in the United States.
Until recently, most immigration law practitioners felt that the early success of E-Verify signaled that DHS would make it a mandatory system of all employers in the United States within the next several years. And that may still happen. In the outline of a Senate proposal that was issued recently for Comprehensive Immigration Reform legislation, however, there is language that suggests that the employment verification system in the United States would be revamped and made stronger. The Senate proposal contains a number of strong statements relating to immigration and employment control issues and processes that are clearly intended to open the door to a dialogue on an “amnesty” program for persons that are in the United States illegally. While this is an admirable and sensible goal, we would hope that the Senate does not throw the baby out with the bathwater when it comes to E-Verify. The combination of the I-9 verification process and a mandatory E-Verify system is a powerful tool for employers to control their hiring foreign nationals. E-Verify works and works well and efficiently and our hope is that the Senate does not turn its back on it in the desire to appear “tough on immigration”.
For more information on this topic, please contact Donald Parker.
John Gallini Panels MCLE’s Immigration Law Event 12/17/2012
Posted by Morse, Barnes-Brown Pendleton in Attorney News, Events, Immigration, Legal Developments.Tags: green cards, immigration, labor certification, MCLE
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On December 12th – 13th MBBP Immigration Attorney John Gallini was a panel member for MCLE’s BasicsPlus! two-day intensive immigration law program. The event helped to provided attendees with a practice introduction to the concepts, procedures and practice of immigration law. John lead a discussion on Employment-Based Green Cards Without Labor Certification.
John Gallini is also the co-chair of the Boston Bar Association‘s Immigration Law Section. Please feel free to contact John with any questions on immigration.
U.S. Citizenship & Immigration Services Launches New Web Portal For Entrepreneurs 12/11/2012
Posted by Morse, Barnes-Brown Pendleton in Immigration, Legal Developments.Tags: entrepreneurs in residence, entrepreneurs pathways, USCIS
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By: John Gallini and Grant Godfrey
Last October, the U.S. Citizenship & Immigration Services (“CIS”) announced the Entrepreneurs in Residence program with the goal of harnessing industry expertise from the public and private sectors and increasing the job creation potential of employment-based and high-skilled visa categories. On November 29, 2012, CIS launched a new web portal for entrepreneurs, the Entrepreneurs Pathways web portal.
The portal includes a guide to the various visa options an entrepreneur has to enter and work in the United States. While the portal provides an overview of the basic eligibility requirements for the statuses, it does not inform the reader of the limitations, traps and pitfalls of those visa options. The establishment of the Entrepreneurs in Residence Program at CIS is a clear statement that CIS is interested in facilitating entrepreneurs’ entry to the United States. However, it will do little to simplify how foreign born entrepreneurs can found and run a business in the U.S. with reliable expectation of visa issuance, extension and, if desired, a pathway to a Green Card. Bipartisan legislation like the StartUp Visa Act and Startup Act 2.0 that are currently pending in Congress, would provide pathways to a Green Card for entrepreneurs, and could easily be amended to include temporary visa statuses so that entrepreneurs could quickly enter the U.S.
Please feel free contact the Immigration Law Group with any questions on this topic.
Immigration Reform Is An Early Priority After the Inauguration 11/12/2012
Posted by Morse, Barnes-Brown Pendleton in Attorney News, Immigration, Legal Developments.Tags: immigration, reform
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By: Grant Godfrey
According to the Huffington Post the Senate Democrats are planning on making immigration reform a priority post-inauguration. While exact measures or legislation have not been disclosed, Washington is showing an increased willingness to tackle what has proven to be a politically dividing topic. Many businesses find our immigration system to be confusing and too rigid to be able to adapt to 21st century business practices. Future legislation could provide needed flexibility so that U.S. employers can focus on hiring and retaining top educated workers who fill critical functions in their organizations.
MBBP’s immigration practice has experience advising companies ranging from start-ups to multi-national corporations, as well as experience advising families and individual workers. If you have any questions about this article, or any other important immigration topic, do not hesitate to contact a member of the Immigration Team.
John Gallini Named BBA Immigration Section Co-Chair 05/22/2012
Posted by Morse, Barnes-Brown Pendleton in Client News, Immigration.Tags: bba, boston bar association, immigration
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On May 21st, the Boston Bar Association announced the new 2012-2013 Co-Chairs of its 24 sections. MBBP Attorney John Gallini was selected as a Co-chair for the Immigration Law Section within the BBA and will serve for two years. BBA President-elect, J.D. Smeallie, had this to say of the section leaders:
The lawyers named to lead our Sections represent a talent pool enriched by the diversity of their respective backgrounds. They are drawn from law firms of all sizes, from the legal departments of businesses and non-profits, and from government, legal services, and academia.
Congratulations John!
For more information, please visit the Boston Bar Association.
MBBP Welcomes Attorney Grant Godfrey 05/09/2012
Posted by Morse, Barnes-Brown Pendleton in Attorney News, Immigration, MBBP news.Tags: attorney, immigration
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MBBP is pleased to announce that Attorney Grant Godfrey has joined the firm as an associate. Grant concentrates his practice in immigration law. Prior to Morse, Barnes-Brown & Pendleton, he was an associate at Blake J. Godbout & Associates where he worked on a variety of litigation, transactional, and bankruptcy issues.
After receiving his undergraduate degree, Grant worked as a paralegal at McNamara, Koenig & McCarthy (now McElroy, Deutsch, Mulvaney & Carpenter), and then at Morse, Barnes-Brown & Pendleton, where he focused on business-based immigration law. He then changed careers and worked at Bullhorn, a software company, as a hybrid account and project manager before attending law school.
Please feel free to contact Grant directly.
MBBP February Immigration Alert: 2013 H-1B Cap to Open on April 1st 02/29/2012
Posted by Morse, Barnes-Brown Pendleton in Immigration, Legal Developments.Tags: h-1b visa, immigration alert, USCIS
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By Donald Parker and John Gallini
The H-1B visa is the standard working visa used by foreign nationals to work in the United States with a U.S. employer. The H-1B “specialty worker” visa is available only to foreign nationals who have obtained a job offer in a position that customarily requires someone with a Bachelor’s degree. With a few exceptions, foreign nationals who have completed 6 years of time in the United States in H-1B status, will be required to return to their home country.
H-1B visas are available in a limited number (the “H-1B cap”) on October 1st of each year, the beginning of the fiscal year of the U.S. Citizenship & Immigration Services (“CIS”). Applications for the up-coming fiscal year tranches of H-1B visas can be made starting April 1st. While we expect that the FY 2013 H-1B cap may not be reached for several months after April 1st, we cannot of course be certain. The demand appears to be greater this year and we expect that CIS’s apparent bias against granting L-1B “specialized knowledge” work visa petitions will cause U.S. multinational corporations to rely more heavily on the H-1B visa program.
As a result, we are advising all employers who expect to sponsor an employee for an H-1B visa to plan to file in the early part of April of 2012.
Please visit our website for the full Immigration Alert.
John Gallini Moderates Immigration CLE Event 03/30/2011
Posted by Morse, Barnes-Brown Pendleton in Attorney News, Events, Immigration.Tags: boston bar association, immigration, visas
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On April 13, 2011, MBBP Immigration Attorney John Gallini will be co-moderating the Boston Bar Association’s CLE event: U.S. Immigration Options for Entrepreneurs and Investors. The event includes panel discussions on L-1 intercompany transferee visas and topics relating to visa processing at U.S. Consulates and Embassies as well as E-2 Investor Visas and EB-5 Immigrant Visas.
To register for the event, click here.
For more information on the topic, please the Boston Bar Association.
H-1B Cap Reached for 2011 Fiscal Year 02/01/2011
Posted by Morse, Barnes-Brown Pendleton in Immigration, Legal Developments.Tags: h-1b visa, USCIS
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By Donald Parker and John Gallini
On January 27, 2011, the CIS announced that the H-1B cap for the 2011 fiscal year had been reached on January 26, 2011. Any H-1B cases received by the CIS after January 26, 2011 will be rejected and returned. The USCIS will place all cap-subject H-1B petitions that were received on January 26, 2011 into a lottery and winners will be chosen through a computer-generated random selection process. H-1B1 visas continue to remain available for Chile and Singapore citizens under their respective Free Trade Agreements.
Given this news employers should be careful when recruiting and interviewing candidates. If a candidate indicates that he/she will require sponsorship, try to determine whether the candidate has previously been issued an H-1B visa in the past several years. These candidates may be exempt from the annual H-1B cap. If the candidate has previously held H-1B status, it is important also to know whether the H-1B visa was for employment with an “exempt” institution. Institutions of higher education or “affiliated” employers, non-profit research organizations and governmental research organizations are exempted from H-1B numerical limitations. A candidate that has only held H-1B status through one of these “exempt” employers will be subject to the H-1B cap when moving to a non-exempt H-1B employer.
To read our full immigration alert on this subject, please visit our website.
Please contact John Gallini or Donald Parker if you have any questions about how the exhaustion of the FY 2010 H-1B cap may affect your company.
New Release: MBBP December 2010 Immigration Alert 12/17/2010
Posted by Morse, Barnes-Brown Pendleton in Attorney News, Immigration, Legal Developments, New Resources.Tags: ESTA, immigration, USCIS
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By Donald Parker and John Gallini
Visa Waiver Program: ESTA Fees
The Visa Waiver Program (VWP) was implemented in 1986 in order to allow travelers from certain countries to enter the U.S. for vacation or to attend business meetings without requiring a visa. To utilize the Visa Waiver for trips to the U.S., travelers must register online with the Electronic System for Travel Authorization (ESTA) prior to their trip. Previously, registering with ESTA was free for passengers; however, on September 8, 2010, the government began imposing a fee for new registrations and renewals. Read more in our full Immigration Alert.
FY 2011 H-1B Cap Count Update – Supply Dwindling
As of December 10, 2010, the total number of H-1B cap-subject petitions counted under the regular cap was 52,400. This means that there will soon be less than 10,000 H-1B visas available. With respect to the 20,000 H-1B visas that are made available under the U.S. Master’s degree exemption tranche, 19,100 visas have already been called for as of the same date. As a result, now is a good time to review your hiring plans for any foreign nationals or foreign students.
MBBP’s December 2010 Immigration Alert also contains information on other topics including:
- USCIS Enhances its Information Gathering of H-1B and L-1 Employers and Employees through Form Revisions
- The Labor Condition Application Revisited
More information can be found in our full Immigration Alert.
John Gallini Moderates Panel Discussion at AILA 2010 Annual Conference 06/30/2010
Posted by Morse, Barnes-Brown Pendleton in Attorney News, Immigration.Tags: AILA, immigration
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On July 3rd Attorney John Gallini will be moderating a panel discussion on the fundamentals of naturalization to U.S. citizenship at the American Immigration Lawyers Association (AILA) 2010 Annual Conference on Immigration Law in Washington, DC. The AILA Annual Conference is the largest gathering of immigration law professionals and includes senior representatives from all government agencies involved in the administration and enforcement of immigration and nationality law.
For more information on the event, please visit AILA.
MBBP June 2010 Immigration Alert Discusses New Changes in US Immigration Policies 06/28/2010
Posted by Morse, Barnes-Brown Pendleton in Client News, Immigration, Legal Developments.Tags: h-1b visa, immigration, USCIS
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By Donald Parker and John Gallini
Visa Fees Have Increased
On June 4, 2010, the Department of State implemented increases in its nonimmigrant visa application fees. The fee increases are relatively minor for most temporary visas, with two exceptions: applications for K visas, which are for fiancé(e)s and spouses of U.S. citizens and their minor children – and E visas, which are for Treaty-Traders/Investors (E-1/E-2) and Australian Professional Specialty Worker (E-3), have gone up significantly. This Immigration Alert provides a breakdown of the nonimmigrant visa application rate increases.
Up-Dated Count on H-1B Numbers
As expected, the global recession has resulted in a significant reduction in the number of new H-1B visa petitions being filed in the current fiscal year of the USCIS. While in years prior to 2009, H-1B visas had been used up within weeks of April 1st, as of June 24, 2010 H-1B visas will likely be available through the end of this year. For a detailed count please click here.
MBBP’s June 2010 Immigration Alert also contains information on other topics including:
- USCIS changes to “Green Cards” and “Employment Cards”
- Visa Waiver Program Going Paperless
Click here to read our full Alert.
H-1B Cap Reached for 2010 Fiscal Year 12/24/2009
Posted by Morse, Barnes-Brown Pendleton in Client News, Immigration, Legal Developments.Tags: h-1b visa, immigration
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By: Donald Parker & John Gallini
On December 22, 2009, the CIS announced that the H-1B cap for the 2010 fiscal year had been reached on December 21, 2009. Any H-1B cases received by the CIS after December 21, 2009 will be rejected and returned. They will place all cap-subject H-1B petitions that were received on December 21, 2009 into a lottery and winners will be chosen through a computer-generated random selection process. H-1B1 visas continue to remain available for Chile and Singapore citizens under their respective Free Trade Agreements. As you know, the CIS makes available 58,200 new H-1Bs each fiscal year, plus 20,000 new H-1Bs for foreign nationals with a Master’s degree or higher from a U.S. academic institution. We are currently projecting that the demand for FY 2011 H-1B visa allocation, which opens on April 1, 2010, will be heavier but that new H-1Bs will likely remain available for several months after the new H-1B filing season begins.
For the full article, please see MBBP’s Immigration Alert Newsletter.
When it Comes to Immigration, Does the Right Hand Always Know What the Left Hand Will Do? 11/16/2009
Posted by Morse, Barnes-Brown Pendleton in Immigration, Legal Developments.Tags: h-1b visa, LCA, taxpayer ID, USCIS, USDOL
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By Donald W. Parker and John J. Gallini
U.S. Citizenship and Immigration Services (“USCIS”) is now trying to streamline a process made more complex by the U.S. Department of Labor (“USDOL”). A requirement for the filing of any H-1B visa petition is the advance receipt of a certified Labor Condition Application (“LCA”) from the USDOL. Until 2009, these Applications, which contain attestations by the employer about the salary to be paid to the sponsored foreign worker and her working conditions, were submitted electronically, reviewed by a computer and certified within seconds of the time of submission if filled out properly. In the Summer of 2009, the USDOL changed the process by which an LCA could be certified by requiring a human review of each Application submitted and an independent verification of the validity of the employer’s Federal Taxpayer ID number. These changes have caused delays in the processing of LCAs which now take 7 to 8 days to be certified and can take several weeks more if there is a delay in verifying the employers Taxpayer ID number.
What this has meant is that H-1B cases, that previously could be filed with the USCIS within a day or two of beginning the paperwork processing, are now taking a week to two and in some cases three weeks to be filed while the employer waits for a certified LCA from the USDOL. In response, earlier this week, the USCIS announced that it would accept H-1B visa petitions without a certified LCA so long as the employer could provide evidence that the LCA had been filed with the USDOL at least 7 days prior to the date of submission to the USCIS. This will obviously help in ensuring that H-1B cases that need to be filed on an emergency basis can be filed at least within a week of the LCA filing. It also reveals an interesting interplay and possibly friction between the USCIS and the USDOL – the USDOL insists that LCAs must take longer to be certified because of the need for human review and the USCIS responds by bending the requirement of a certified LCA for an H-1B visa petition.
The ultimate friction is that if the USDOL denies the LCA after an employer rushes to file the H-1B visa petition, the employer could lose not only the H-1B but also the substantial filing fees it paid to secure that H-1B. Clearly there are a number of questions that will need to be resolved with the announcement of this new policy by the USCIS before employers can feel comfortable taking advantage of it.
For more information on this topic, please contact Donald W. Parker or John J. Gallini at 781-622-5930.
