April 2013

From the Editor's Desk

Hello and welcome to the April 2013 Immigration Newsletter!

Before we begin, we would like to express our solidarity with the great city of Boston and express our deepest condolences to the family and friends of the three individuals who lost their lives in the Boston Marathon Bombing. We also wish for a speedy recovery to all of those injured. We would also like to thank all of the heroes that shined through that day and restored our hope in humanity.

In U.S. immigration news, April has sure been an action packed month!

As predicted by many including USCIS, the FY 2014 H-1B cap was reached in the first week of filing, which began on April 1 and ended on April 5. USCIS received approximately 124,000 H-1B petitions during the first week of the filing period, which included petitions filed in the advanced degree exemption. Per the regulations and for the first times since April 2008, USCIS conducted a ‘lottery’ on April 7, 2013, to select a sufficient number of petitions needed to meet the caps of 65,000 for the general category and 20,000 under the advanced degree exemption.

USCIS has since announced that it has started the data entry process for H-1B petitions selected in the lottery. Premium processing cases are being handled first because the Premium Processing clock started on April 15. Data entry for non-premium cases will likely not be completed until sometime in May and rejection notices for petitions not selected in the lottery will be sent out only after that. Please note that although receipt notices for Premium Processing cases were issued first, USCIS has assured everyone that Premium Processing cases did not receive any type of priority within the lottery.

Employers (except cap-exempt organizations) who would like to file new H-1B petitions will now have to wait until April 1, 2014 for a start date no sooner than October 1, 2014. If you are employer who missed the H-1B bus, click here to learn more on how you can evaluate and utilize alternatives to the H-1B.

April also saw the release of the Senate’s version of the much anticipated Comprehensive Immigration Reform Bill– Border Security, Economic Opportunity, and Immigration Modernization Act of 2013. The Bill was introduced in the Senate by Senator Chuck Schumer (D-NY) on behalf of the ‘Gang of Eight.’ The bill proposes significant changes to the current provisions in both employment-based and family-based immigration categories including:

  • Raising the H-1B regular cap from 65,000 to 110,000 in the first fiscal year
  • Barring companies that have more than 75% of their workers on H-1B or L-1 from bringing in any additional workers in the first year.
  • A new merit-based immigrant visa system and a new startup visa for foreign entrepreneurs
  • The elimination of the Fourth Family Based Preference Category (brothers and sisters of U.S. citizens), the limiting of the Third Family Based Preference Category (married sons and daughters of U.S. Citizens) to those under 31 years of age and the elimination of the Diversity Visa Program (the Green Card Lottery) and
  • A new nonimmigrant classification known as the W-Visa.

For a more in-depth look at the some of the proposals included in the Senate reform bill click here.

It is however important to understand that this is only the initial phase of the law-making process anhttps://www.visapro.com/2012/additional-visas-for-stem-graduates/d some of proposals may not be in the final version of the bill or may change before enactment.

Not to be outdone by the Senate, House Republicans announced they would be releasing a “series” of piece-meal immigration bills aimed at reforming the current system as opposed to the comprehensive bill introduced by the Senate’s Gang of Eight. We wait with bated breath to see what the House has to offer and hope it does not derail the momentum behind the push for immigration reform.

Is This The Beginning to the End of Indian IT Staffing in U.S.?

ICE recently reported that an Indian owner of an IT consulting company pled guilty to federal charges for his participation in a fraudulent scheme to obtain false H-1B visas for foreign workers.

As immigration becomes increasingly wary of IT staffing companies and staffing arrangements, it is critical for companies to have a clear understanding of what they may or may not do and what they must do under the H-1B program, including in situations where they are sending employees to work at third-party sites, or when they ‘run out of work’ for an H1B worker.

Click here to read more about this case and how to avoid similar consequences.

On the H-2B front, DOL and DHS published a joint Interim Final Rule in the Federal Register that revises the prevailing wage methodology used by DOL to calculate certain prevailing wages paid to H-2B workers and U.S. workers recruited in connection with an H-2B Application. The Interim Final Rule eliminates the use of four-tier wage rates based on the Bureau of Labor Statistics’ Occupational Employment Statistics (OES) survey and replaces it with a determination based on the OES arithmetic mean. Following the publication of the Interim Final Rule, USCIS has resumed processing of all Form I-129 H-2B petitions for temporary non-agricultural workers. It is also important to note that:

  • Interim Final Rule does not affect prevailing wage determinations based on applicable Collective Bargaining Agreement wage rates, the Service Contract Act or Davis-Bacon Act wage determinations, or appropriate private wage surveys; and,
  • The new Wage Methodology Interim Final Rule also applies to employers who have already received a temporary employment certification and currently employ H-2B workers. Employers are required to offer and pay this new wage for any work performed on and after the date the employer receives the supplemental prevailing wage determination from DOL.

Other Developments in Immigration Law:

Form I-94 Automation: Implementation Schedule

CBP has announced that it will phase-in the Form I-94 automation at air and sea ports of entry throughout April and May. Implementation will begin on April 30 at five pilot ports of entry and will continue to the remaining ports of entry over a total of four weeks. Foreign visitors will continue to receive the paper Form I-94 until the automated process arrives at their port of entry. Further, CBP will continue to issue a paper form I-94 at land border ports of entry as advance information is only transmitted for air and sea travelers. Travelers who need physical proof of entry for immigration purposes will be able access their arrival/departure record online.

May 2013 Visa Bulletin: EB-2 priority date for India remains at 09/01/04

In the recently published U.S. Department of State Visa Bulletin for May 2013, the EB-2 priority dates remained current in respect of all countries other than India and mainland China. The EB-2 priority date for India remained at 09/01/04, even as it advanced from 04/01/08 t0 05/15/08 for mainland China. Meanwhile, the EB-1, EB-4 and EB-5 numbers continue to remain current for all countries. Significant advancement was seen in EB-3 priority dates for all countries.

USCIS Reminds Applicants To Include All Required Evidence While Filing Form I-539

USCIS has issued an alert reminding applicants to include all required evidence when submitting Form I-539, Application to Extend/Change Nonimmigrant Status. Initial evidence is required for all applications regardless of whether they are electronically filed in USCIS ELIS or mailed to USCIS. USCIS has also reminded applicants that it is especially important for individuals who hold a B-2 visitor visa to submit needed evidence with their application as there are no appeal rights for B-2 nonimmigrants who are denied an extension of stay.

Immigration Articles and Other Fun Stuff:

Our ‘Featured Video’ for this month is “K-1 Adjustment of Status After Divorce: Is it Possible?” in which we discuss whether an applicant is still entitled to adjust to permanent resident status if the US Citizen spouse dies or the marriage ends in divorce before the USCIS makes a decision on the application for adjustment of status. Please check out and subscribe to our YouTube channel to take advantage of another great service provided to you by VisaPro.

Check out our ‘In Focus’ article for this month titled “EB-2 National Interest Waiver (NIW): Green Card Through Self-Petition” to learn more about how qualifying foreign nationals may self-petition and bypass the labor certification requirement while seeking a Green Card under the EB-2 National Interest Waiver category.

Every month we introduce a new and interesting question for our opinion poll. Results of our previous poll indicate that a majority of respondents (60%) think that the sequestration (U.S. government budget cuts) will seriously impact immigration services and processing. We continue to appreciate that people take interest in the opinion question and cast their votes to give us their feedback. Keep it up! And continue to cast your vote to express Your Opinion.

We also congratulate Ramos for winning last month’s Immigration Quiz. While we received more than one correct response to the quiz question, Ramos gave the best answer and won a free online consultation to discuss the concerned Immigration issues. It’s time to get ready for this month’s quiz. If you know the correct answer your name might be featured in next month’s newsletter. All the Best!!!

See you next month with a lot more noise from the Immigration World!

Latest Immigration News

H2B Cap Count Update

USCIS has updated the count of H2B visa petitions received and counted towards the H2B cap for the fiscal year 2013 employment. As of April 19, 2013, USCIS has approved approximately 14,713 beneficiaries for the 2nd half of FY 2013.

Immigration-Related Discrimination: DOJ Settles Claim Against Property Management Company

DOJ has announced that it has reached an agreement with a Dallas residential property management firm, resolving claims that the company violated the anti-discrimination provision of the Immigration and Nationality Act. Under the terms of the agreement, the company agreed to pay $20,000 in civil penalties. DOJ’s investigation revealed that the company had improperly re-verified the documentation of lawful permanent residents when their documentation expired while they did not re-verify expired documentation of U.S. citizens.

April's Featured Articles

EB-2 National Interest Waiver (NIW): Green Card Through Self-Petition

The EB-2 National Interest Waiver (NIW) category allows qualifying foreign nationals to petition for a Green Card without the need for a U.S. employer, a job offer in the U.S. or a labor certification, resulting in a significantly quicker process for obtaining permanent residence in the U.S. To qualify for a National Interest Waiver, the applicant and must be able to demonstrate that his or her work in the U.S. is in national interest.

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Questions and Answers


I am on a L1A visa and my wife has a L2. She got an EAD based on my visa. Our visa renewal has been approved and I intend to file for an EAD renewal. Can my wife continue to work meanwhile?


Your wife only has authorization to work when her EAD is valid so, if her EAD card is still valid, she can continue to work. However, if her EAD expires while the EAD renewal application is still pending, she will no longer have authorization to work.

To avoid this situation, we strongly recommend that EAD renewal applications be filed 3-4 months in advance of the expiration. If the L-1 and L-2 extension applications are being filed together, then the EAD renewal application can be filed with that as well in order to save time.


I am currently in the U.S., working for the last 3 years on an H-1B. My employer wants to file for a Green Card for me. Just wanted to know if the experience gained by me on the job can be used for PERM posting requirements?


Experience gained by you on the job cannot be generally used unless the position that is now being offered to you under the labor certification is not substantially comparable to your current position. If the job that is being offered to you consists of job duties that are at least 50% different from your existing duties, you may have a case for using your experience gained on the job. Please consult an immigration attorney to have your circumstances thoroughly reviewed to clearly ascertain whether you may or may not be able to use the experience gained by you on the job in your specific situation..

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