Immigration News: H-1B Cap, EB2 Visa Availability and Worksite Enforcement

H-1B Cap Count for Fiscal Year (FY) 2012:

USCIS has received approximately 5,900 H-1B petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees.

H-1B “Cap-Gap” for Students Changing Status from F1 to H-1B:

As in previous years, USCIS will grant the cap-gap extension to certain F-1 students in the U.S. with pending or approved H-1B petitions for an employment start date of October 1, 2011, under the FY2012 H-1B cap.  The cap-gap extension functionality should only be used in cases where a student’s status or Optional Practice Training (OPT) may end before October 1, 2011.

Update on EB-2 Visa Availability
Charlie Oppenheim, Chief, Immigrant Visa Control and Reporting Division, U.S. Department of State, informed the American Immigration Lawyers Association (AILA) of a dramatic reduction in the use of EB-1 numbers. He stated:

“[US]CIS says they have seen a decline in filings, and does not expect a change in the number use pattern. Therefore, this decline in EB-1 number use will allow me to begin having those ‘otherwise unused’ numbers drop down and be available for use in the EB-2 category. Based on current indications, that would mean that at least 12,000 additional numbers will be available to the EB-2 category. This situation will allow me to advance the India EB-2 cut-off date for May. The reason being that all ‘otherwise unused’ numbers are provided strictly in priority date order, and the India demand has the largest concentration of early dates.”

Pursuant to the DOS Visa Bulletin for May 2011 (Visa Bulletin), the cut-off date for Indian Foreign Nationals in the EB-2 category is July 1, 2006.  The cut-off date for Chinese Foreign Nationals in the EB-2 category is August 1, 2006.

Further, the Visa Bulletin provides the following update regarding visa availability during the following months:

Family-sponsored: The extremely high level of demand during the first few months of FY-2011 resulted in the retrogression of most worldwide cut-off dates in January or February. While most of these cut-offs have begun to advance slowly, heavy demand in the Family First preference has caused a further retrogression for May. At this time it is not possible to predict the rate of forward movement, but some movement is anticipated in most categories for the remainder of the fiscal year.

Employment-based: At this time the amount of demand being received in the Employment First preference is extremely low compared with that of recent years. Absent an immediate and dramatic increase in demand, this category will remain “Current” for all countries. It also appears unlikely that a Second preference cut-off date will be imposed for any countries other than China and India, where demand is extremely high.

Department of Homeland Security and Department of Labor Worksite Enforcement:

The Department of Homeland Security (DHS) and the Department of Labor (DOL) released a March 31, 2011, Memorandum of Understanding (MOU), which specifies that Immigration and Customs Enforcement (ICE) will not investigate worksites where DOL is conducting an investigation or where there is an ongoing labor dispute, unless there is an independent, supervening cause.  The DHS and its component agencies, including ICE, enforce the U.S. immigration laws.  The DOL and its component agencies, enforce the U.S. labor laws. While the DHS and the DOL agreed that they will not conduct joint or coordinated civil enforcement activities at a worksite, the two agencies have agreed to “create a means to exchange information to foster enforcement against abusive employment practices directed against workers regardless of status.” 

JSBarkats PLLC lawyers  have extensive experience dealing with these issues and are available to assist you.  Please contact Eva Frecker at 646.502.7001 or by email at efrecker@jsbarkats.com.