Developments in 2012 and Planning for 2013 (Part 2 of 2)

This continuation of the Murthy Law Firm’s examination of some of the major immigration developments in 2012 also analyzes the meaning of these developments for 2013. The drastic fluctuation in the employment-based, second preference (EB2) Visa Bulletin cutoff dates for India and China and current EB2 retrogression was discussed in Part 1. Following is a look at ongoing trends in the H1B category, including the H1B cap, visa refusals, and H1B amendments due to worksite changes.

H1B Cap Reached Much Earlier

The H1B annual limit (or “cap”) was reached much earlier in calendar year 2012 than in the immediately preceding years. The cap reached in calendar year 2012 was actually the fiscal year (FY) 2013 cap, as the government fiscal year runs from October through September. Thus, FY13 runs from October 1, 2012 through September 30, 2013. As explained in our NewsBrief, FY14 H1B Cap Season: Get an Early Start (30.Nov.2012), there is a noticeable trend toward shorter H1B cap filing seasons. The filing period for H1Bs valid during FY13 ended June 11, 2012. H1B cases can be filed up to six months before the requested start date. This is why filings begin April 1st – it is six months prior to the first day of the FY in October.

For FY13, the filing period only spanned the time between April 1st and June 11th, 2012. This continued a trend toward shorter cap filing periods. There is no way to know how long cap numbers will remain available for FY14, which runs from October 1, 2013 to September 30, 2014. However, if this tendency continues, the cap numbers will run out very early making it vital to file early. The first FY14 H1B cap filings are permitted for arrival at the USCIS on April 1, 2013. Eligibility for the limited cap numbers is limited to those cases filed before the cap numbers are depleted for the year.

Strict Adherence to Masters’ Cap Requirements

Readers should particularly take note of something we at the Murthy Law Firm have noticed in H1B cap-subject cases. Special care should be taken regarding eligibility requirements for the degree-issuing U.S. school when filing H1B cases requesting one of the 20,000 advanced-degree (or master’s cap) exceptions. As explained in our article, Requirements for U.S. Masters’ Graduates to Enjoy Benefit of H1B “Masters Cap, (19.Nov.2012) only those with advanced degrees from U.S. public or other nonprofit institutions of higher education can qualify. The law has not changed with respect to this requirement. The U.S. Citizenship and Immigration Services (USCIS) has become more stringent in its review of such cases, however. Those with degrees from “for profit” institutions, therefore, are likely to face denials if their cases are filed seeking H1B numbers from the advanced-degree cap exemption quota.

H1B Employee Relocation: H1B Amendments Recommended

Those in the IT consulting industry continue to face problems related to H1B employee relocation. In 2012, the Murthy Law Firm advised employers to consider shifting their company practices toward filing amendments to reflect changes in employee location and projects. Far more employers are now heeding this advice and filing amended petitions. For a variety of reasons, however, including practical cost concerns, many employers do not follow this practice or are not doing so uniformly.

These concerns originated several years ago, and are expected to continue in 2013. They surround the duration of some of the projects on which consultants work. In many cases, these projects do not last for the full H1B period. Historically, it was considered acceptable for an employer to obtain a new labor condition application (LCA) for the new work location prior to employee relocation. The ongoing trend, however, is toward an expectation that, in addition to the LCA, the employer will amend the H1B petition to reflect location and project changes as an additional, and far more onerous, step.

Employers who do not file amendments face problems if the USCIS conducts site visits to check on specific H1B employees. Investigators will have no way of knowing that the employee has been relocated if the H1B petition is not amended to reflect the new worksite. Investigators may contact employers to obtain further information, but, if the employees they seek are working at locations not specified in their H1B petitions, the USCIS may ultimately decide to revoke the H1Bs.

Likewise, problems occur for employers trying to extend the statuses of relocated employees. The failure to file amendments can result in requests for evidence (RFEs). There may be questions in such cases about past compliance with H1B requirements. The USCIS may refuse to approve H1B petitions in such instances, if employers neglected to comply with requirements and promises made in their previously approved H1B petitions.

When it comes to visa applications at U.S. consulate/s abroad, H1B amendments are vital. The consulates expect accuracy in the descriptions of projects and locations in H1B petitions at the time the visa applications are filed. If an assignment changes from what was filed and approved in the H1B petition, an amendment is almost always necessary prior to applying for a visa “stamp.” Failure in this regard is highly likely to result in an INA Section 221(g) refusal of the visa and, potentially, in revocation of the H1B petition.

Consular Refusals of H1B Visas

In 2011 and 2012, H1B visa refusals under INA Section 221(g) became commonplace for those working in the IT consulting field. These problems even extended to the spouses of such workers in H-4 visa application matters. Those applying for visas in 2013 need an awareness of the issues. Applicants must be fully prepared for the application and interview process. The risks of denial can be reduced with preparation, but certainly not eliminated. As mentioned above, it is necessary in some cases to amend the H1B petition prior to applying for a visa.

For 2013, there may be some relief to the difficulties faced by many in the visa process. In late November 2012, the Interview Waiver Program (IWP) expanded in India to include qualifying H1B and L-1 visa applicants. This expansion was explained in our MurthyDotCom article, Certain H1B and L-1 Applicants Eligible for Visa Interview Waiver in India (04.Dec.2012). Since eligibility for the IWP for H1B and L-1 applicants is recent, it is too soon to assess the program for these visa candidates. But the hope is that the IWP will provide much needed relief for H1B and L-1 applicants, as well as for other eligible categories of applicants.

Keep up with Trends in 2013

In order to be proactive and to adapt to changes in a timely fashion, it is necessary to identify emerging patterns and trends. Immigration changes often arise from policy and adjudication shifts, without actual changes in laws or regulations. We at MurthyDotCom will continue to inform readers of changes in immigration law and regulation, as well as the more subtle – but often equally important – trends in decision-making and policy throughout 2013 and beyond.

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Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.