March 2013

From the Editor's Desk

Hello and welcome to the March 2013 Immigration Newsletter!

We are heading straight into the start of the H-1B filing season! With April 1, the initial filing date for H-1B visas for Fiscal Year 2014 (FY 2014), just around the corner and everyone gearing up to file H-1B cases, there is a lot of excitement in the air!

USCIS States H1B Filings may Exceed Cap in the First 5 Days

The H-1B filing season may be a very short one this year!!

In a notable announcement made on March 15, 2013, USCIS has indicated that, based on feedback from stakeholders, it anticipates receiving more petitions than the H-1B cap between April 1, 2013 and April 5, 2013. This means that the H-1B cap may well be met in the first week of the filing season!

If this should happen, USCIS will use a lottery system to randomly select the number of petitions required to reach the numerical limit and will reject any cap-subject petition that are not selected. If a lottery takes place, it will be the first time since April 2008 that USCIS has had to use the lottery.

Employers need to take notice that if they miss this year’s cap, they will NOT be able to bring in new employees under the H-1B program until October 1, 2014!

To eliminate uncertainty and to ensure a successful filing, we strongly recommend employers to start immediately.

For filing your H-1B petitions timely and successfully Contact VisaPro immediately at +1-202-787-1944.

VisaPro immigration attorney Mr. Thomas Joy has a near 100% success helping clients with Business Strategy and Immigration Approvals. VisaPro Attorneys can help you develop a customized strategy ensuring a similar high level of success for your company and your situation.

In a significant development, as a result of Sequester, the mandatory across the board cuts to discretionary spending that was signed into law by President Obama, various government agencies have begun making mandatory (hopefully temporary) cuts to their budget. It is expected that sequestration will impact visa processing at U.S. Embassies and Consulates as the Department of State (DOS) has warned that the number of officers processing visa applications would be reduced. Hence it is advisable that visa applicants plan their interview scheduling in advance considering any delays that may result due to the Sequester. As budget talks drag on, it is unsure how long the Sequester will last.

USCIS’s Provisional Waiver Application process, initially announced in early 2012, officially began on March 4, 2013. Under the new program, certain immigrant visa applicants who are immediate relatives (spouses, children and parents) of U.S. citizens can now apply for a provisional unlawful presence waiver before they leave the United States. An unlawful presence waiver is required for all immigrant visa applicants who have been unlawfully present in the U.S. and are subject to the 3 or 10 year unlawful presence bar. Until now, applicants who were in the U.S. and were subject to the bar would have to leave the U.S. and apply for the waiver from abroad. This was a risk that many individuals felt was too much to take as the waiver could be denied and they would be unable to return to the U.S. The new provisional unlawful presence waiver process allows these individuals who only need a waiver of inadmissibility for unlawful presence, to apply for the waiver and await the results while they remain in the United States and before they depart for their immigrant visa interviews at a U.S. Embassy or Consulate abroad. While the new provisional unlawful presence waiver process does not change the current immigrant visa process, it is certainly expected to reduce uncertainty and significantly shorten the time U.S. Citizens are separated from their immediate relatives while those immediate relatives are obtaining immigrant visas to become lawful permanent residents of the United States.

Last month we came across reports of a Texas IT Consulting Company that was indicted by the federal authorities on charges that the firm unlawfully “benched” H-1B employees. The indictment alleges that the company sponsored foreign workers with computer expertise for H-1B visas with the stated purpose of having them work at their headquarters in Texas, but, in fact, had the workers provide consulting services to third-party companies located elsewhere and actively recruited H-1B workers and then “benched” them when work was scarce. Furthermore, the indictment alleges the company only paid the H-1B workers when they were placed with a third-party company and only if the third-party actually paid the company first for the worker’s services. This means that many workers would not have been getting paid even when they were doing the work. The case, yet again, emphasizes the need for companies, especially those providing consulting services, to establish and strictly adhere to proper compliance mechanisms and procedures to avoid undesirable consequences and to seek legal advice when establishing the same.

Other Developments in Immigration Law:

USCIS Publishes Revised Form I-9

USCIS has published a revised Employment Eligibility Verification Form I-9 for use by employers effective 03/08/13. Employers should immediately begin using the newly revised Form I-9 for all new hires and re-verifications. Employers may continue to use previously accepted revisions until May 7, 2013. After May 7, 2013, employers shall only use the new Form I-9. The revised forms are available in English and Spanish (available for use in Puerto Rico only).

April 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 April 2013, the EB-2 priority dates remained current in respect to 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 02/15/08 to 04/01/08 in respect to mainland China. Meanwhile, the EB-1, EB-4 and EB-5 numbers continue to remain current for all countries, even as marginal advancements were seen in EB-3 priority dates.

E-visa Processing Introduced at Calgary Consulate

The Calgary Consulate General in Canada has introduced E-visa processing services for Treaty Trader (E-1) and Treaty Investor (E-2) applications from businesses in Alberta, Saskatchewan and the Northwest Territories in Canada. The Consulate has announced that first-time E-visa applicants and those seeking renewals can schedule a visa appointment in as little as 10 business days in advance. The Supporting Documentation must then be sent to the Consulate within one week so that they have sufficient time to review the documents before the interview. Employees of registered E-visa enterprises (registered at the U.S. Consulate in Calgary, Toronto or Vancouver) and dependents of E-visa holders can schedule appointments as early as the next business day. These individuals do not have to send Supporting Documentation in advance but may simply bring the documentation with them.

Immigration Articles and Other Fun Stuff:

Our ‘Featured Video’ for this month is Family Based Immigrant Visa: Who Qualifies? in which we explain which family members qualify for a family immigrant visa and how long it will take to get the immigrant visa. 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 “The ‘Schedule A’ Green Card for Physical Therapists” to learn more about the eligibility requirements and procedure for obtaining a ‘Schedule A’ Green Card for Physical Therapists.

Also don’t miss reading Travelogue: Who needs Roller Coasters when India has Auto-Rickshaws in which Senior Advisor Dr. James R. Ziegler shares his travel experiences during his recent visit to India for the six-city ‘Doing Business in The US’ workshops.

Every month we introduce a new and interesting question for our opinion poll. Results of our previous poll indicate that an overwhelming majority of respondents (80.00%) think that the FY2014 H-1B quota will not be open until mid-June like last year. 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 Palanivelrajan for winning last month’s Immigration Quiz. While we received more than one correct response to the quiz question, Palanivelrajan 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 March 15, 2013, USCIS has approved approximately 41,820 H2B beneficiaries for the 1st half of FY 2013 and 12,314 beneficiaries for the 2nd half of FY 2013.

DED Extended for Liberians: USCIS Automatically Extends Validity of EADs

USCIS has announced its intention to automatically extend employment authorization documents (EADs) for Liberian nationals covered under Deferred Enforced Departure (DED) through September 30, 2013. This follows President Obama’s announcement of his decision to extend DED through September 30, 2014 for qualified Liberians and those persons without nationality who last habitually resided in Liberia.

March's Featured Articles

The ‘Schedule A’ Green Card for Physical Therapists

A valid ‘Schedule A’ Physical Therapist Green Card would allow a foreign national physical therapist to stay and work in the U.S. as a permanent resident. Persons who will be employed as physical therapists and who possess all the qualifications necessary to take the physical therapist licensing examination in the state in which they propose to practice are eligible to seek a Physical Therapist Green Card. As ‘Physical Therapist’ is a ‘Schedule A’ occupation, a certified Labor Certification is not a requirement when applying for a Green Card in this category, and hence the process for obtaining a Green Card for physical therapists is relatively quicker when compared with other Employment Based Green Card categories. Learn more about the eligibility requirements and procedure for obtaining a ‘Schedule A’ Green Card for Physical Therapists

Questions and Answers


I am a Citizen of Canada. I own a precious metal purchasing company in Canada. I am looking to operate an affiliate office in the USA and thinking about an E-1 visa. Can you please let me know more about the E-1 visa?


As a citizen of Canada, you could take advantage of the E-1 treaty trader provisions if you are going to engage in the trade of items where title changes hands between US and Canada or from Canada to US. For an E-1 treaty trader visa, titles of the items need to change hand between the countries. At least 51% of your international trade must be between US and Canada. In order to qualify for an E-1 visa, you have to have substantial pre-existing trade or binding contracts in existence that call for the immediate exchange of title between Canada and US or US and Canada. You have to show that you have substantial existing trade already between US and Canada or alternatively you have signed and binding contracts for immediate exchange of goods between the 2 countries. Please consult an Immigration Attorney to review your situation and suitability for an E-1 visa, or for other alternative visas that may help you accomplish your desire to operate an affiliate office in USA like L-1 visa or E-2 visa.


If one person in a marriage gets a work visa will the partner also get?


While your question is very generic, work visas are generally individual specific. Hence, a foreign national must individually qualify for an appropriate work visa like H-1B, L-1, TN etc., in order to be eligible to seek and obtain one. If a foreign national is granted a work visa, it does not automatically qualify his or her spouse for a work visa, either in the same category or in any other work visa category. You have to individually qualify for a work visa. However, spouses of foreign nationals in certain nonimmigrant visa categories like L-1, E-1, E-2 etc. may be able to obtain “work authorization” to work in the U.S. based on their dependent status. That is, they will maintain their dependent visa status of the individual who holds the work visa but they can apply for and obtain an “Employment Authorization Document” (EAD) which will allow them to take up employment in the U.S. Please review your situation with an Immigration Attorney to ascertain whether your current status in the US as spouse of a foreign national on a nonimmigrant work visa entitles you to seek an EAD card and work in the U.S.

Got A Question?

Visa Eligibility Tool

VisaPro’s Online Visa Advisor is our proprietary tool built by immigration attorneys with 35+ years’ experience. Use this free tool to identify the most efficient visa to work in the U.S., start a business in the U.S., marry a U.S. citizen, or hire foreign nationals. It is 100% free and accurate.

Check Your U.S. Visa Eligibility For FREE Today!

Check Your Eligibility