H-1B Cap for Fiscal Year 2007 - Plan Ahead

On April 1, 2007, employers may begin filing new H-1B petitions for Fiscal Year 2008, which begins October 1, 2007. The quota or "cap" for new H-1B petitions is 65,000 per year, and of these, 6,800 visas are set aside based on Free Trade Agreements with Chile and Singapore. An additional 20,000 H-1Bs are available for beneficiaries with U.S. master's degrees.

Employers are encouraged to plan ahead, as numbers may run out quickly after filing begins. Please contact immigration counsel to begin the process for H-1B petitions for new hires, changes of status to H-1B (such as change from L-1 or TN), and students whose optional practical training EADs will expire prior to October 1, 2008. We also encourage employers to plan ahead for overseas transferees who may not qualify for L-1 status.

The H-1B cap applies only to "new" H-1B petitions. The following H-1B petitions are not subject to the cap: extensions of stay; most petitions to change employer; petitions for foreign nationals seeking employment with institutions of higher education, nonprofit research organizations and government research organizations; and petitions for physicians who previously held J-1 status and have applied for waiver of the two-year residence requirement based on service in an underserved area. Changes of employer from an "exempt" employer to a "non-exempt" employer will likely be subject to the cap.

Employers may also wish to consider alternatives to H-1B status for temporary workers. Please consult immigration counsel regarding specific eligibility requirements and individual qualifications for specific visa categories.

USCIS Issues Memorandum on Periods of Stay in H-1B and L-1 Status

On December 5, 2006, USCIS issued an Interoffice Memorandum to Regional and Service Center Directors addressing several issues pertaining to authorized periods of stay in the United States, primarily affecting H-1B (specialty occupation) and L-1 (intracompany transferee) non-immigrants and their dependents.

First, the Memorandum provides that USCIS will not count time spent in the United States in H-4 dependent status as part of the six-year maximum, if the individual later changes to H-1B status. Similarly, periods of stay spent as an L-2 dependent will not count against the five-year maximum for L-1B (specialized knowledge) status or the seven-year maximum for L-1A (executive/manager) status. The Memorandum states that this interpretation of the law is consistent with Congressional intent and promotes family unity. The Memorandum emphasizes that all beneficiaries must comply with the requirements of their status, and the Service may limit, deny or revoke any stay for an H-4 or L-2 dependent that is not primarily intended for the purpose of accompanying the principal worker in the United States.

Second, the Memorandum clarifies USCIS policy regarding adjudication of requests for additional periods of stay in H-1B status beyond the six-year maximum for certain H-1B employees whose permanent resident applications are subject to lengthy adjudications. The Memorandum provides that an eligible H-1B beneficiary may apply for extensions beyond the six-year limit whether or not the alien is currently present in the United States.

Lastly, the Memorandum addresses the maximum period of admission in H-1B status for a beneficiary who was in the United States in valid H-1B status for less than the six-year maximum and has remained outside the United States for more than one year. Current regulations provide that when an individual has reached the maximum period of admission (and is not otherwise entitled to an extension beyond six years), a new H-1B petition may be approved only if the alien has remained outside the United States for one year. Where the individual has not exhausted the full six-year period and has left the United States for more than one year, the Memorandum provides that the individual is eligible to return to the United States in H-1B status for the "remainder" of his or her allowable period of stay in H-1B status, without being subject to the annual numerical limitation on new H-1B petitions ("H-1B cap"). If, however, the individual and the petitioning employer wish to apply for a new H-1B for a new full six-year validity period, then the petition will be subject to the H-1B cap.

Department of Labor Updates

DOL Extends Deadline to Request RIR Conversion "Hold Harmless" Opportunity

On December 22, 2006, the Department of Labor issued additional guidance regarding the conversion of a permanent labor certification application filed prior to March 28, 2005, under Traditional Recruitment methods ("TR") to Reduction in Recruitment ("RIR") processing. They called this the "Hold Harmless" Opportunity.

DOL outlined requirements for employers to follow in order to ensure that their applications will be processed under the RIR process once they begin RIR recruitment. Under the prior guidance, employers took a risk by commencing RIR recruitment because the issuance of a DOL job order under the TR process would cause a case to become ineligible for RIR conversion. As a result, employers have been concerned about expending recruitment resources on RIR advertising as it could be made useless if DOL commenced a TR job order. Employers can now minimize the risks of RIR conversion and be "held harmless" for commencing recruitment on cases for which the employer intends to apply for conversion.

An employer must provide DOL with an e-mail by Midnight EST, on January 22, 2007, with prescribed language requesting conversion of the case to RIR status. Once the request is sent, the DOL will no longer treat the application as a TR case. Most cases that remain pending with DOL will be eligible for conversion. Proposed case amendments (such as additional requirements) must be submitted with this e-mail request.

Once the request is made, the employer must then perform acceptable RIR recruitment and submit the RIR recruitment documentation to DOL by April 1, 2007. This essentially creates a two-month RIR recruitment window for employers. If an employer does not submit RIR recruitment documentation on a converted application by April 1, 2007, then the case will be denied and will not be converted back to TR processing. However, if the additional documentation is timely received, but is found not to meet RIR conversion standards, DOL will convert the application back to TR processing.

Several additional requirements for RIR conversion processing include the following:

  • Evidence of shortage occupation, high demand occupation or high growth industry must be submitted with the RIR recruitment package;
  • At minimum, one print advertisement and one additional recruitment source from a prescribed list is required;
  • A posting notice must be timely performed; and
  • A recruitment report must be submitted.

DOL is anticipating that many employers will take advantage of this conversion opportunity under the "hold harmless" provision, and that it will aid in meeting its goal of eliminating its backlog of non-PERM labor certification cases by fall 2007. DOL is now providing employers with a conversion opportunity that will provide adequate assurance that money and resources devoted to conversion will not be wasted.

The benefits of RIR conversion for TR cases filed prior to March 27, 2005, include:

  • Retention of original priority date;
  • Less cumbersome recruitment and closer to "real world" recruitment than TR;
  • Faster adjudication;
  • Employer who begins recruitment with intent to convert will be held harmless against issuance of TR job order if employer follows guidance under FAQ by January 22, 2007; and
  • Opportunity to amend application. (Note: Proposed amendments must be submitted prior to January 22, 2007, to take advantage of the hold harmless provision.)

Please contact immigration counsel if you have any questions about this new process.

Department of State Updates

New Passport Requirements for Travel Between United States and Canada

Beginning January 2007, a new U.S. law is being implemented in phases that will require U.S. and Canadian citizens to present passports in order to enter the United States and other countries in the Western Hemisphere.

This new rule is part of the Western Hemisphere Travel Initiative and is mandated by the Intelligence Reform and Terrorism Prevention Act of 2004. It affects travelers to and from the Americas, the Caribbean and Bermuda, and requires travelers to have a passport or other accepted document that establishes the bearer's identity and nationality to enter or re-enter the United States. Documents other than a passport are being considered as acceptable evidence at this time (such as a NEXUS card for travel between the U.S. and Canada, or a BCC card for Mexican citizens), but these have not yet been finalized.

The Initiative is currently scheduled for implementation as follows:

January 23, 2007: ALL persons, including U.S. citizens, traveling by air between the United States and Canada, Mexico, Central and South America, the Caribbean and Bermuda will be required to present a valid passport, Air NEXUS card, or U.S. Coast Guard Merchant Mariner Document, or an Alien Registration Card, Form I-551, if applicable.

January 1, 2008: Requirement expected to be extended to all land border crossings as well as air and sea travel.

This is a substantial change from prior travel requirements of U.S. and Canadian citizens. Many individuals are accustomed to presenting a birth certificate or other acceptable identification documentation only to return to the United States after travel to Canada or to enter the United States on a temporary visit from Canada. In order to minimize any impact on your travel or business operations as a result of this law, U.S. and Canadian citizens should obtain passports as soon as possible.

For additional information and updates on implementation of the Initiative, please visit the Department of State Web site: http://www.travel.state.gov/travel/cbpmc/cbpmc_2223.html.