Watching the H-1B Cap

August is here and there are still H-1Bs!!! See my earlier post for an assessment of the cap overall, and a table of the usage numbers. The USCIS has now indicated that, as of 7/24/09, 44,900 new H-1Bs have been allocated (toward the general cap).

Above is another, better, way to look at the numbers. The table shows you how many new H-1Bs were allocated in specific time periods. (The time periods don’t reflect weekends, since the USCIS does not process petitions on weekends.) The table also shows the average H-1Bs-per-day allocation. With this, we can see that, after the initial filing crunch, 680 new H-1Bs were allocated in 70 business days, the equivalent of around 10 new H-1Bs per day.

So, with 13,200 H-1B still left (65,000 minus the 6,800 reserved for H-1B1), and at a usage rate of 10 per day, H-1Bs would be available well through to the end of the next fiscal year, with some H-1Bs going unused. Will that really happen? I tend not to think so. The end of the calendar year is a peak hiring time (fall graduates), as well as the spring. I am also confident that upticks in the economy and the labor market will mean that H-1B usage will similar tick upwards. I’ve been told I’m an optimist and I embrace that. Time will tell. In the meantime, foreign national professionals and U.S. companies who hire them are breathing easier knowing that an H-1B is not a 1:3 possibility for them, as it was last year.

New field guidance on Petitions to Remove Conditional Permanent Resident Status

The USCIS has issued new guidance to the field on the proper handling and adjudication of I-751 petitions to remove the conditions on permanent resident status. Conditional permanent resident status is attained when a foreign national marries a U.S. citizen. Permanent residence (green card) is granted for only a two year “conditional” period. As the end of the period approaches, a petition must be made to remove the conditions from the status so that unconditional permanent resident status can be achieved. (The petition must be filed within the 90 day period preceding end of the two year conditional residence period.)

The petition that is filed is a joint petition – jointly filed by the U.S. citizen spouse and the conditional permanent resident.

Not all marriages last the full two years and so there is a route by which the joint aspect of the petition filing may be waived. In such a case, the conditional permanent resident can file solely (so long as s/he can evidence that the marriage was entered into in good faith).

But in instances where the couple was separated or in divorce proceedings during that very small 90 day filing period and where the U.S. citizen spouse would not agree to jointly file the petition to remove conditions, then the conditional permanent resident was in a jamb. If the petition was filed solely, it would be denied. If the petition was not filed, the conditional permanent resident fell out of lawful status.

Now, with this new Field Guidance, the USCIS addresses this conundrum, but only to partial satisfaction.

According to the Guidance, in cases where the couple is separated or in divorce proceedings, the conditional permanent resident may file the petition solely. Then, upon seeing the lack of a divorce and the lack of a joint petition, the USCIS will issue a Request for Evidence (RFE) with a response deadline of 87 days. The RFE will request proof of a final divorce. The thought process of the USCIS is that the 87 days should be sufficient for “many cases” to complete the divorce. In cases where the final divorce can be shown, the case will then be adjudicated according to the merits.

But what if the couple has not yet achieved a final divorce decree in 87 days? In such a case, the petition is denied and the matter referred for issuance of a Notice to Appear (NTA). The NTA means that the conditional permanent resident must appear before an Immigration Judge to argue that s/he should not be removed (aka deported) from the country. In its Field Guidance, the USCIS opines that, in many cases, the divorce will be complete by this time and the conditional permanent resident will then be eligible for relief and the granting of unconditional permanent resident status. The Field Guidance does not offer any assistance to those whose divorce is not final in time.

The Field Guidance goes on to further add that, even in cases where the petition is filed jointly, if the USCIS examiner sees that the couple are separated or in divorce proceedings, then an RFE will be issued with an 87 day response time. If the divorce has become final during this time period, then the conditional permanent resident can have the case converted to a waiver case (waiver the joint filing requirement.) The case is then adjudicated based on its merits.

It is clear from this Field Guidance that, in cases where there is a separation and/or divorce proceedings, the USCIS wants to take extra case to determine whether the marriage was entered into in good faith. The system of a two year conditional permanent residence status was established to alleviate marriage fraud. The USCIS is now demonstrating that actions toward ending a marriage that occur so close to the end of the two year period will receive extra scrutiny.

Analysis and comment on H-1B usage

Immigration practitioners and employers alike have had to adjust their mindset this year with regard to the availability of H-1B numbers. At Dahan & Associates, we’ve had to pull out old templates regarding, “no H-1Bs available until the next fiscal year – October 1, 2010” and update them to indicate that new H-1B numbers are, in fact, still available. If anything was an indication that an artificial H-1B cap is unnecessary, this is. This year highlights the fact that H-1B usage is self-regulated by market conditions. Ideally, there should be no cap on H-1B numbers, allowing the market to determine H-1B need. Such a system is reasonable, would allow H-1B employers to function effectively, and would result in a real-time response of the system to market conditions. That is, by allowing H-1B usage to be an organic reflection of the labor market and economic conditions, expansion or restriction of the program’s use would occur in close parallel to growth or decline in market conditions. Conversely, a specific number of visas laid out in the black letter law results in a program that does not meet the realistic needs of American business, and a change in the written law is too slow a mechanism to be an appropriate element of control on the program.

Eliminating any H-1B cap, though, is hardly palatable to the U.S. Congress or to the American people who elect them. An appropriate compromise, then, would be a formula written in the law that takes into account economic conditions, job availability, and unemployment statistics. I do not mean to suggest that, in the hardest of times as we are in today, the H-1B program be shut down. It is clear that U.S. companies must be able to attract the best and brightest in the world. To close the H-1B program entirely in such times would be shortsighted, xenophobic, and a fast way to shoot America’s global competiveness in the foot, so it is important at all times to have some level of a robust H-1B program.

Below is a table showing the usage of H-1B numbers for FY2010 (starting October 1, 2010). The regular cap will be met at 65,000 new H-1Bs and the Masters cap is met at 20,000 new H-1Bs. Note that the Masters cap has long had 20,000 petitions, but the USCIS has indicated that it will still accept petitions because it expects that some of the already-received 20,000 will be denied. Also note that the regular cap number went up, and then came down some. The USCIS has not provided an explanation for this, but it is likely due to denial of some filed petitions, thus causing the number of new H-1Bs actually issued to go down.

FY 2010 H-1B Cap

Announce Date Regular Cap Masters Cap

April 17, 2009 43,000 20,000
April 20, 2009 44,000 20,000
April 27, 2009 45,000 20,000
May 5, 2009 45,000 20,000
May 11, 2009 45,000 20,000
May 18, 2009 45,500 20,000
May 22, 2009 45,700 20,000
May 29, 2009 45,800 20,000
June 5, 2009 44,400 20,000
June 12, 2009 44,400 20,000
June 19, 2009 44,500 20,000
June 26, 2009 44,800 20,000
July 3, 2009 45,000 20,000
July 10, 2009 44,900 20,000

Problems with SEVIS impacting F-1 OPT

International Student and Exchange Visitor Program (SEVP) has received reports of SEVIS records for F-1 students being erroneously terminated or completed when students are eligible for the cap-gap extension. This is occurring after USCIS adjudicators enter approved petition information into a database which interfaces with the CLAIMS Mainframe. It has been discovered that a glitch in the interface is preventing petition information from reaching the CLAIMS Mainframe, including the start date of the petition approval (i.e. an October 1 start date on an H-1B). When the CLAIMS Mainframe does not have any benefit dates to send to SEVIS, SEVIS interprets it as an immediate change of change of status, thus causing the student’s record to terminate or complete, rather than being properly updated with a future change of status and cap-gap extension

If you are an F-1 student or an employer of an F-1 student and learn that the student’s SEVIS record has been improperly terminated or completed, the student’s DSO should be contacted to ensure that the DSO contacts the SEVIS Help Desk. The DSO must request the SEVIS Help Desk to have the record returned to Active status and add the cap-gap extension.