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H-1B Lottery; Premium Processing for Certain I-140s; EADs; Visa Waiver Program; and E-Verify

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H-1B Lottery; Premium Processing for Certain I-140s; EADs; Visa Waiver Program; and E-Verify

June 13, 2008

We have several updates from last week and this week as the warm weather sinks in.

Fiscal Year 2009 H-1B Lottery. We have unofficial word through our national attorney association that the lottery is over, and that all receipts have been mailed. Contrary to earlier assertions, the USCIS has apparently determined that the number of petitions selected during the random selection process will be sufficient to meet the cap limit. Therefore, the use of the reserve/cushion will not be necessary this year. In other words, there does not appear to be a "waiting list." We have been advised that USCIS has begun to mail out rejections this week.
July Visa Bulletin Released June 10. EB-3 Third Preference is unavailable. The government expects this to continue until October 1, 2008, the start of the new fiscal year. EB-2 preference is current except for India and China which both are now cut off at April 1, 2004. Under complex rules affecting visa allocation, unused permanent visa numbers will be allocated to Indian and Chinese nationals. Because there are more EB-2 applicants from India, and these applicants may have earlier priority dates, it may be that Indian nationals obtain more of those unused visa numbers than Chinese nationals.
Premium Processing Available I-140s When 6 year H-1B Cap is About To Be Reached. As of June 16, 2008, relief is available for employers to keep certain H-1B beneficiaries whose status would otherwise expire. The USCIS announced yesterday that the government will resume Premium Processing for I-140 petitions on a very limited basis -- only for those where the foreign national beneficiary: (1) will reach the 6 year maximum period of allowable stay under the H-1B program in 60 days; and (2) is otherwise ineligible for a one year H-1B extension available under current law [i.e. where there was a labor certification or other permanent residence petition filed less than 365 days previously.] With the previous suspension of premium processing and long delays for I-140 adjudications, employees faced becoming ineligible for an H-1B extension of status if the employer had not filed a labor certification or other permanent residence petition 365 days earlier.
2 Year EADs should available this summer. U.S. Department of Homeland Security Secretary Michael Chertoff announced on June 9 that, starting later this month, the government will begin issuing Employment Authorization Documents with a two-year validity period for aliens who are waiting adjustment of status if their application is expected to be pending for more than a year. This is welcome news for those in the visa retrogression quagmire.
Electronic System for Travel Authorization (ESTA) under the Visa Waiver Program. The government announced last week that beginning some time next year, anticipated to be around January 2009, travelers to the U.S. under the Visa Waiver Program must apply for an electronic travel authorization prior to boarding a U.S. – bound flight or cruise ship. Supposedly, if a request is made 72 hours before departure, a decision on authorization should be provided. Starting August 1, 2008, travelers may voluntarily obtain ESTAs but still must complete the I-94W form currently required of all travelers under the VWP.
Employers Contracting with Federal Agencies Will Need to Register Under E-Verify. The President issued an Executive Order on June 9, 2008 which mandates that any employer entering into a contract with a federal agency register and use E-Verify. We have provided materials to those interested employer clients on the pros and cons of the E-Verify Program and details on registration. Please contact us if you would like more information given this recent development. E-Verify certainly appears to be the wave of the future.

We hope you find this useful. Please contact us if you have any questions.

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