Businesses throughout the country await results from the upcoming H-1B random lottery. It is important to note a few minor changes and updates to H-1B regulations for Fiscal Year 2009. First, as stated in a previous news post, a new interim final rule has modified the selection process for all cap-subject H-1B petitions that prohibit employers from filing multiple H-1B petitions for the same employee.
In addition, the period for filing regular and advanced degree H-1B petitions has been expanded by USCIS to five business days, if USCIS receives enough petitions to reach the specified cap on any of those business days. Finally, it is important to note that the first 20,000 petitions received for foreign national applicants with a U.S. master’s or higher degree are exempt from the 65,000 H-1B standard cap.
USCIS has noted that, if the 20,000 master’s and higher degree cap and the 65,000 standard cap are reached during this five-business-day filing period, a lottery will first be held for those advanced degree cap petitions. After that lottery, an additional lottery of all cases (including those with advanced degrees that were not selected in the first lottery) will be held to fill the 65,000 cap.
A report published earlier this month by the National Foundation of American Policy (NFAP), a non-profit public policy organization, shows that for each H-1B petition requested, U.S. high tech companies increase their U.S.-based workforce by an average of five workers. After reviewing all H-1B applications or LCA filings submitted to the U.S. Department of Labor between 2001 and 2005 by leading high tech companies, NFAP found that tech companies with 5,000 or more employees added an average of five workers for every H-1B request; companies with less than 5,000 employees averaged an increase of 7.5 workers for every H-1B request.
NFAP points out in their research publication that, based on data, it appears that new H-1B professionals entering the U.S. are complementing other U.S. hires and not displacing them, as many critics to the H-1B program have stated. According to NFAP, “preventing companies from hiring foreign nationals by maintaining an artificially low limit on H-1B visas is likely to produce the unintended consequence of pushing more work to other countries.”
The U.S. Department of Homeland Security (DHS) just released a Supplemental Proposal Rulemaking for the No-Match Rule issued in August of last year. This supplemental document provides detailed information about how DHS developed the No-Match rule and gives responsible employers guidance on how to make sure they are not employing unauthorized workers.
The rule gives employers clear steps to take after receiving a letter from the Social Security Administration (SSA) stating that an employee’s name does not match the social security number on file with SSA. If an employer follows certain actions to rectify this ‘no-match’, within 90 days of receiving the letter, they will be provided with a safe harbor from DHS and the no-match letter will not be used against them in any future enforcement.
“We are serious about immigration enforcement. The No-Match Rule is an important tool for cracking down on illegal hiring practices while providing honest employers with the guidance they need,” said Michael Chertoff, Secretary, DHS. “This supplement specifically addresses the three grounds on which the district court based its injunction. We have also filed an appeal and are pursuing these two paths simultaneously to get a resolution as quickly as possible.”
USCIS has just published an interim final rule that would prohibit employers from filing multiple H-1B petitions for the same employee. USCIS is implementing this change to make sure that companies filing H-1B petitions that are subject to congressionally mandated numerical limits have equal chances to gainfully employ H-1B workers. In order to make sure the minimal amount of available H-1B visas are equally and fairly distributed, USCIS has stated that it will deny or revoke multiple petitions filed by an employer for the same H-1B worker. Note that USCIS will not refund the filing feels submitted with multiple/derivative petitions. However, USCIS also states that “this rule does not preclude related employers (such as a parent company and its subsidiary) from filing petitions on behalf of the same alien for different positions, based on a legitimate business need.”
Earlier today, Bill Gates, the chairman of Microsoft Corporation, voiced his concerns over what he considers faulty immigration policies in a presentation to the U.S. Congress. In a statement given to the House of Representatives’ Science and Technology Committee, Gates remarked that the current U.S. immigration system limits U.S. technology corporations’ ability to recruit and retain highly skilled immigrants.
“As a result [of restrictive immigration legislation], many US firms, including Microsoft, have been forced to locate staff in countries that welcome skilled foreign workers to do work that could otherwise have been done in the United States, if it were not for our counterproductive immigration policies,” said Gates.
Gates specifically spoke about the restrictive cap placed on the H-1B Skilled Worker visa as the major limiting factor for U.S. technology companies. The current cap on these visas, set presently at 65,000, does not reflect the needs of the U.S. economy, said Gates, who pointed out that, last year, all 65,000 visas were filled up in one day.
“Last year, for example, Microsoft was unable to obtain H-1B visas for one-third of the highly qualified foreign-born job candidates that we wanted to hire,” said Gates.
“If we increase the number of H-1B visas that are available to US companies, employment of US nationals would likely grow as well…. Microsoft has found that for every H-1B hire we make, we add on average four additional employees to support them in various capacities.”
Earlier this week, USCIS issued revised instructions for Form I-131, the Application for Travel Document. These instructions, which include a range of changes, became effective March 5, 2008. Changes made to the form include requiring individuals applying for re-entry permits and refugee travel documents to provide biometric information at a USCIS Application Support Center. USCIS will notify applicants of their appointment at a designated Application Security Center after the applicant has submitted the Form I-131.
These new instructions apply to individuals filing Form I-131s for re-entry permits or refugee travel documents who are between the ages of 14 and 79. USCIS suggests that these applicants file Form I-131s well in advance of their expected travel date.
In addition to the new biometric requirements, applicable individuals who are in the U.S. will also be required to pay the $80 biometric services fee (or submit a fee waiver request).
Finally, applicants wishing to request expedited processing should submit pre-paid express mailers with their Form I-131s so that USCIS can mail back the receipt and appointment notice, along with the RE-entry Permit or Refugee Travel Document, if approved. Additional information on expedited processing procedures is delineated in detail on the revised instructions.