U.S. Citizenship and Immigration Services (USCIS) announced on April 5, 2013 that it had already received a sufficient number of H-1B petitions to reach the statutory caps for both the 65,000 regular cap and for the 20,000 cap for U.S. advanced degree holders for fiscal year (FY) 2014 (October 1, 2013 - September 30, 2014). April 5, 2013 was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2014. In total, USCIS received approximately 124,000 H-1B petitions during the April 1 through April 5 filing period.

Because USCIS received many more H-1B petitions than the numbers that are available during the very first week of their fiscal year, it will reject any new filings received on or after April 8, 2013. In addition, it has subjected those petitions received between April 1 and April 5, 2013 to a computergenerated random selection process. Petitions not randomly selected for H-1B approval have been rejected by USCIS, and the filing fees are being returned.

The fact that the H-1B numbers were used up so quickly demonstrates again that Congress must act now to increase H-1B availability for American employers. We are optimistic that Congress will act in the coming months to increase the quota to allow employers to petition for additional H-1B professionals. We will keep you apprised of any H-1B-related legislative changes as they occur. In the meantime, if some of your H-1B petitions have not randomly been selected for approval, please contact us to see if some other visa category could accommodate your employment needs. Sometimes the TN (Treaty NAFTA), J-1 (exchange visitor), O-1 (extraordinary ability), or other classification can be an alternative

Please keep in mind that if a person has already been counted toward the H-1B cap in the past six years, will be working for a university or affiliated nonprofit, or will be employed at a nonprofit or government research organization, then a new H-1B number is not required, and we do not need to wait to file an H-1B petition.

USCIS Set to Eliminate Paper Form I-94

In what is being billed as a cost and resource-saving measure, U.S. Customs and Border Protection (CBP) has announced that effective later this month, it will begin eliminating the Form I-94 Arrival/Departure Record - the white card placed in most nonimmigrants’ passports upon entering the U.S. that notes the date of admission, status, and authorized period of stay. Under the proposed plan, instead of receiving a paper I-94, nonimmigrants arriving by air or sea will receive a passport stamp annotated with their immigration status and the date their authorized period of stay will expire. CBP will also electronically create an admissions record number at entry, and the captured data will be automatically entered into a CBP database. Foreign nationals will then be able to access their record of admission on the CBP website at www.cbp.gov/I94. (Those entering at land ports of entry, and certain classes of arriving foreign nationals, including refugees, will continue to receive the paper I-94 upon entry.) The new electronic I-94 program will be phased in beginning April 30, and is expected to be fully operational by mid-May.

Although the change from a paper to an electronic-based I-94 system may seem small, its practical impact is quite dramatic. The paper I-94 is currently used as proof of lawful immigration status in a variety of contexts, including verifications of employment eligibility (Form I-9) and applications for Social Security numbers and driver’s licenses. In addition, USCIS regulations require nonimmigrants to carry their I-94s at all times as proof of their status. CBP has advised that they are communicating with all relevant government agencies to ensure that they begin accepting printouts of the electronic I-94 records as valid proof of lawful status. However, as the familiar paper-based I-94 system has been in place for nearly 50 years, we anticipate that at least some local or national agencies may initially be reluctant to accept the electronic I-94 printouts as evidence of lawful status. We therefore recommend that you alert your nonimmigrant employees of the impending change, and to advise them to apply now for any necessary benefits (such as driver’s licenses or Social Security numbers) to avoid any delays. We also advise that you have your employees print out two copies of their I-94 information from the CBP website: one to carry with them at all times, and one to give to an applicable company official to monitor their status and expiration dates.

CBP anticipates that the automation of I-94 data will reduce errors in the admission record (as all biographic data will be pulled directly from the nonimmigrant’s visa) and reduce the time nonimmigrants in work-authorized statuses need to wait before applying for Social Security numbers.