DELAWARE IMMIGRATION LAWYER BLOG

On June 11, 2010, USCIS issued an update count of Fiscal Year 2011 cap-subject numbers.  Approximately 22,200 H-1B cap-subject petitions counting towards the 65,000 general cap were receipted in by the Service. Only 9,400 H-1B petitions for aliens with advanced degrees from U.S. institutions have been receipted in counting towards the 20,000 Master’s cap.

U.S. Citizenship and Immigration Services (USCIS) announced that it will begin accepting H-1B petitions subject to the fiscal year (FY) 2011 cap on April 1, 2010. Cases will be considered accepted on the date that USCIS takes possession of a properly filed petition
with the correct fee; not the date that the petition is postmarked. The fiscal year cap (numerical limitation on H-1B petitions) for FY 2011 is 65,000. Additionally, the first 20,000 H-1B petitions filed on behalf of individuals who have earned a U.S. master’s degree
or higher are exempt from the H-1B cap.

USCIS will monitor the number of petitions received and will notify the public of the date on which USCIS received the necessary number of petitions to meet the H-1B cap. If needed, USCIS will randomly select the number of petitions required to reach the numerical limit from the petitions received on the final receipt date. USCIS will reject cap-subject petitions that are not selected, as
well as those received after the final receipt date.

For more information on the H-1B nonimmigrant visa program and current Form I-129 processing times, visit www.uscis.gov or call the National Customer Service Center at (800) 375-5283.

USCIS recently announced revised filing instructions and addresses for filing several forms, including Form I-765 (Application for Employment Authorization), and I-485 (Application to Register Permanent Residence or Adjust Status). To download most recent forms, please visit www.uscis.gov.

As of September 25, 2009, approximately 46,700 H-1b cap-subject petitions and approximately 20,000 petitions qualifying for the advanced degree cap exemption had been filed. USCIS will continue accept both cap-subject petitions and advanced degree petitions until a sufficient number of H-1b petitions have been received to reach the statutory limits, taking into account the fact that some of these petitions may be denied, recoked or withdrawn.

Some decisions and cases support that a corporation even if it is owned and operated by a single person may hire that same individual in an H-1B capacity. This is based on the concept that the corporation is a separate legal entity fron its owner. However, self-sponsored H-1Bs are subject to careful review. The parties have to prove existence of a bona fide employer and employee relationship.

As of July 3, 2009, approximately 45,000 H-1B cap-subject petitions had been received by USCIS and counted towards the H-1B cap. Approximately 20,000 petitions qualifying for the advanced degree cap exemptions had been filed. USCIS will continue to accept both cap-subject petitions and advanced degree petitions.

On June 11, 2009, the U.S. District Court of Washington at Seattle found that 8 C.F.R. Section 245(a)(2)(i)(B) was unreasonable and impermissible construction of governing status. The regulation at issue sets forth that religious worker cannot concurrently file I-360 (Petition for Special Immigration Visa), I-485 (Adjustment of Status Application) and I-765 (Employment Authorization Application).

On March 20, 2009, President Obama signed Public Law 111-9 extending the non-minister religious worker program through September 29, 2009.

Non-minister Religious workers must file their special immigrant peititions before September 29, 2009.

Eligibility for special immigrant status requires religious workers (1) to have been a member, for two years, of a religious denomination that qualifies as a bona fide, nonprofit, religious organization in the United States; and (2) to have been carrying on religious work continuously, either abroad or in the United States, for at least two years immediately preceding the filing of the application.

The religious worker must be coming to the United States solely for the purpose of (a) acting as a minister; (b) working in a professional capacity in a religious vocation or occupation for a religious organization and at the organization’s request; or (c) working in a religious vocation or occupation for a religious organization or an affiliated organization.

April 9, 2009

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) today announced an updated number of filings for H-1B petitions for the fiscal year 2010 program.

USCIS has received approximately 42,000 H-1B petitions counting toward the Congressionally-mandated 65,000 cap. The agency continues to accept petitions subject to the general cap.

Additionally, the agency has received approximately 20,000 petitions for aliens with advanced degrees; however, we continue to accept advanced degree petitions since experience has shown that not all petitions received are approvable. Congress mandated that the first 20,000 of these types of petitions are exempt from any fiscal year cap on available H-1B visas.
For cases filed for premium processing during the initial five-day filing window, the 15-day premium processing period began April 7. For cases filed for premium processing after the filing window, the premium processing period begins on the date USCIS takes physical possession of the petition.

USCIS will provide regular updates as the processing of FY2010 H-1B petitions continue.

– USCIS –