This office participated in an AILA survey for the  AILA/Department of State Liaison Committee for an upcoming meeting with DOS. The submission through this survey is not meant for individual case resolution, but rather is being used for an overall tracking of emerging problems and/or trends. We see definite problems with visa issuance at posts, particularly in India, where the most important issue appears to be the “Right to Control”. The Neufeld Memo (1/8/2010) requires employers to document their ‘right to control’ an employee for H-1B purposes. However, it appears the Consulates have translated this into ‘actual control’. For instance, one consular Officer was not satisfied that the supervisor of the visa applicant spoke with her and managed her work on a weekly basis! He brusquely rejected the visa stating – “not sufficient.” There appears to be no common thread or standard of adjudication followed by the Consulates in this regard. In one debriefing, a client told our Office that the interviewing officer wrote down – “maintained eye-contact throughout,” before granting the visa. Unfortunately, since visa issuance is an arbitrary process, there no telling how it is likely to turn based merely on the preparedness of the applicant. We encourage applicants to read through and understand petition paperwork prior to appearing for a visa interview. Since, this is a quasi-adjudications process, prepare by grooming and dressing properly. Remember you cannot appear for a Hearing wearing a Yankees Cap! Maintain eye-contact at all times and respond to each question clearly and concisely. Visa issuance is an administrative process and therefore, it is important to provide information in a fearless and convincing manner as though you are before a Hearing Officer in a U.S. Immigration Office. Trying to embellish answers leads to further questioning. If the outcome of the interview is not favorable there is no use fretting about it at the Consulate. Leave the premises in a dignified manner without any further exchanges, but making sure you have thanked the Consular Officer; Contact your employer and the Attorney of Record for further action.

USCIS provides update on the FY 2012 H-1B cap, confirming that there will be no lottery for petitions accepted for filing on the final receipt date, November 22, 2011.

USCIS announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 for fiscal year (FY)2012. USCIS is notifying the public that yesterday, Nov. 22, 2011, was the final receipt date for new H-1B specialty occupation petitions requesting an employment start date in FY 2012.  Properly filed cases will be considered received on the date that USCIS physically receives the petition; not the date that the petition was postmarked. USCIS will reject cap-subject petitions for new H-1B specialty occupation workers seeking an employment start date in FY 2012 that arrive after Nov. 22, 2011.

As of Oct. 19, 2011, USCIS had also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will continue to accept and process petitions that are otherwise exempt from the cap. In addition, petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the FY 2012 H-1B cap. Accordingly, USCIS will continue to accept and process petitions filed to:

•   extend the amount of time a current H-1B worker may remain in the U.S.;
•   change the terms of employment for current H-1B workers;
•   allow current H-1B workers to change employers; and
•   allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as scientists, engineers or computer programmers.

USCIS starts accepting H-1B petitions subject to the fiscal year (FY) 2012 cap on April 1, 2011. Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked. You may file an H-1B petition no more than 6-months in advance of the requested start date. Petitions seeking an FY 2012 H-1B cap number with an Oct. 1, 2011 start date can be filed no sooner than April 1, 2011.

The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas are set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.
Similar to the previous years, we will continue to provide regular updates about the FY 2012 Cap on our website.

U.S. Citizenship and Immigration Services (USCIS) announced today it will start accepting H-1B petitions subject to the fiscal year (FY) 2012 cap on April 1, 2011. Cases will be considered accepted on the date USCIS receives a properly filed petition for which the correct fee has been submitted; not the date that the petition is postmarked. U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise. Such workers include scientists, engineers, and computer programmers, among others. The cap (the numerical limit on H-1B petitions) for FY 2012 is 65,000. The first 20,000 H-1B petitions filed on behalf of individuals with U.S. master's degrees or higher are exempt.

USCIS will monitor the number of H-1B petitions received and will notify the public of the date when the numerical limit of the H-1B cap has been met. This date is known as the final receipt date. If USCIS receives more petitions than it can accept, it may on the final receipt date randomly select the number of petitions that will be considered for final inclusion within the cap. USCIS will reject petitions that are subject to the cap and are not selected, as well as petitions received after it has the necessary number of petitions needed to meet the cap. In addition to petitions filed on behalf of people with U.S. master's degrees or higher, certain other petitions are exempt from the congressionally mandated cap.

Petitions for new H-1B employment are exempt from the annual cap if the beneficiaries will work at:

•   Institutions of higher education or related or affiliated nonprofit entities;
•  Nonprofit research organizations; or
•   Governmental research organizations.

Petitions filed on behalf of beneficiaries who will work only in Guam or the Commonwealth of the Northern Marianas Islands are exempt from the cap until Dec. 31, 2014. Employers may continue to file petitions for these cap-exempt H-1B categories for beneficiaries who will start work during FY 2011 or 2012.

Petitions filed on behalf of current H-1B workers who have been counted previously against the cap do not count towards the H-1B cap. USCIS will continue to process petitions filed to: - Extend the amount of time a current H-1B worker may remain in the United States;

- Change the terms of employment for current H-1B workers;
- Allow current H-1B workers to change employers; and
- Allow current H-1B workers to work concurrently in a second H-1B position.

H-1B petitioners should follow all statutory and regulatory requirements as they prepare petitions, to avoid delays in processing and possible requests for evidence. USCIS has posted on its website detailed information, including a processing worksheet, to assist in the completion and submission of a FY2012 H-1B petition. Read the press release on H1B petitions for FY 2012 .