Thursday, January 28, 2016

Plan Now for the New H-1B Filing Season

The Miller Law Offices provides guidance for employers in advance of the April 1, 2016 initial filing date for H-1B petitions.

Employers use the H-1B visa category to employ nonimmigrant foreign workers who possess the equivalent of a U.S. bachelor’s degree for professional jobs.  The first date that H-1B petitions will be accepted by U.S. Citizenship and Immigration Services (USCIS) is April 1, 2016, for a starting employment date of October 1, 2016.

There is a statutory cap of 65,000 H-1B visas available each fiscal year.  An additional 20,000 H-1B visas are available under the advanced degree exemption (also known as the master’s cap) to nonimmigrant foreign workers who possess a U.S. master’s (or higher) degree.

Last year, USCIS received more than 230,000 H-1B petitions during the first five days of the filing period.  Because demand exceeded both the statutory cap and the master’s cap, a computer-generated random lottery was used to select petitions.

It is very likely that this year’s demand will be high again.  Furthermore, the H-1B petitioning process is complicated and labor-intensive, requiring both a labor condition attestation from the Department of Labor and a proper filing with USCIS.  An experienced immigration attorney is crucial to navigating this process. Your company should also consider the following: 
  • Because the H-1B process is time-sensitive and the required documentation may not be immediately available, it is important to begin preparations well in advance of the April 1 initial filing date.
  • Nonimmigrant foreign workers who possess a U.S. master’s (or higher) degree have two opportunities to be selected for an H-1B visa in a given year.  First, they may be one of the 20,000 selected under the advanced degree exemption.  If not, they are then placed in the general lottery for 65,000 visas.
  • Nonimmigrant foreign workers may be eligible for other classifications, either as a fallback if they are not selected in the lottery or as an alternative to seeking H-1B classification.  For instance:

o   Certain foreign-educated persons with foreign work experience may qualify for up to 18 months of employment in training programs through J-1 sponsorship.
o   Certain Canadian and Mexican professionals may be eligible for TN status.
o   Australian professionals are eligible for E-3 visa status, and their dependent spouses are eligible to apply for employment authorization.
o   Professionals from Chile and Singapore have separate H-1B1 caps which are likely to remain open.

  • Aliens of extraordinary ability may be eligible for O-1 classification, a non-cap alternative for persons who have reached the highest level of accomplishment in their field.
  • Qualified institutions of higher education or research non-profit organizations are exempt from the caps described above and can sponsor an H-1B visa at any time of the year.  This exemption also extends to employers that are related to or affiliated with these institutions or organizations.

For further information about the H-1B filing season or about the Miller Law Offices and our legal services, please contact us at (818) 508-9005 or direct your email to Charles Miller at or Samuel Miller at

Monday, November 16, 2015

Obama Administration to seek Supreme Court Review of Immigration Plan

The Justice Department has indicated that it intends to appeal the Circuit Court's decision to uphold the temporary injunction halting the implementation of President Obama's expanded deferred action immigration plans to the U.S. Supreme Court.

On November 9, 2015 the Fifth Circuit Court of Appeals upheld the preliminary injunction that had been issued by the U.S. District Court for the Southern District of Texas in Texas v. United States. That injunction temporarily halts the implementation of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and the expansion of Deferred Action for Childhood Arrivals (DACA). By a 2-1 decision the three-judge panel found that President Obama's Immigration Accountability Executive Action, which sought to provide wide-reaching relief to millions of undocumented persons, was likely to lose on the merits, based on violations of the Administrative Procedure Act.

National attention had focused on President's plan to provide temporary deferred action for the parents of U.S. citizens and permanent residents (DAPA). The president also removed the age restrictions for the Deferred Action for Childhood Arrivals (DACA) program.  Both the DACA and DAPA programs' theoretical basis depended on the President's authority to exercise discretion in the prosecution and enforcement of immigration cases.

Friday, October 9, 2015

Visa Bulletin Revision Allows Some Applicants to File Early Adjustment Applications

By Alexandria Lewis

On September 9, 2015, the State Department began publishing a revised monthly Visa Bulletin reflecting a new process that allows earlier dates for the filing of adjustment of status for foreign nationals seeking U.S. permanent residency and advances the processing of immigrant visa applicants at U.S. consulates and embassies abroad.[1]

This Visa Bulletin revision was made in response to President Obama’s Presidential Memorandum of November 21, 2014, directing federal agencies to develop recommendations to improve the current visa system and to implement certain needed reforms to bring the U.S. immigration system in line with current economic and national security needs.

Adjustment of status applicants often wait many years for their visa numbers to become available to allow for the filing of their green card applications.  In response to the Obama administration’s reform objectives, the State Department, in conjunction with the USCIS, developed new policies permitting the early filing of adjustment of status applications by individuals as well as advancing immigrant visa processing for overseas applicants with pending immigrant petitions and non-current priority dates.  The individuals who take the opportunity to file early for adjustment of status will receive the benefits of having a pending adjustment application such as advance parole travel permission and employment authorization.

The monthly Visa Bulletin now reflects the revised process by exhibiting two charts for the family and employment-based preference categories.  The first chart will determine final action dates, which are dates when immigrant visas may be finally issued or adjustment of status accomplished.  The other chart will determine filing dates, which are dates when applicants may begin final immigration application filings.

The State Department’s National Visa Center will prompt immigrant visa applicants to advance their visa application process if their priority date is earlier than the date listed on the “Filing Date” chart for their preference category and country of chargeability.  If the priority date is current and document processing completed, an immigrant visa interview may be scheduled.

Inside the U.S., adjustment of status applicants may file their applications based on either the “Final Action Date” chart, or the “Filing Date” chart.  If their priority date is earlier than the “Filing Date” deadline, they may file adjustment applications that month and may also apply for the benefits of employment authorization and advance parole.  If the applicant’s priority date is reached on the “Final Action Date” chart, then the adjustment application may be approved by the USCIS.
The current Visa Bulletin may be found online at the State Department’s website

[1] On September 25, 2015, the State Department and USCIS issued a replacement October 2015 Visa Bulletin that retrogressed permitted filing dates for several categories of immigrants, including EB-2 India, EB-3 Philippines, EB-2 China, and EB-3 China.  This retrogression on permitted filing dates drastically reduced the number of applicants who could file adjustment applications beginning on October 1, 2015. The replacement bulletin maintained the State Department’s ability to improve and streamline the system for determining when immigrant visas are available to applicants during the fiscal year, but retrogressed permitted filing for affected prospective employment-based immigrants.

Friday, April 17, 2015

H-1B Lottery Conducted for more than 230,000 Petitions

The USCIS announced receipt of 233,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 13, the agency used a computer-generated random lottery, to select petitions for the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption (masters' cap). The agency conducted the masters' cap selection process first. All unselected advanced degree petitions then became part of the random selection process for the general 65,000 limit.