On Nov 5, 2010, USCIS updated its count of FY 2011 regular CAP H-1B petitions and confirmed 45,600 H-1B CAP petitions had been received. The quota for the regular CAP H-1B petitions is 65,000 annually. However of these 65,000 quota numbers, 5,800 are reserved for the nationals of Singapore and nationals of Chili. The actual available quota numbers available are just 59,200. Thus, 59,200 minus 45,600 equals 12,400. So as of November 5, there were 12,400 H-1Bs available.

USCIS also confirmed that USCIS also received 17,200 H-1B petitions for aliens who have advanced degrees. The quota for these higher degreed alien workers is 20,000 per year. By calculation, there were only 2,800 caps available to the aliens who have advanced degrees on Nov 5, 2010.

USCIS updated the H-1B caps count on Oct 29, 2010. We have seen a dramatic increase on the number of filings since last count. Within 5 days between Oct 29 and Nov 5, the USCIS had received 1,200 CAP H-1B petitions and 500 H-1B petitions for aliens with advanced degrees. Average 340 petitions were received per day.  On average 340 petitions were received per day. If the H-1B filing goes on at this speed, FY 2011 H-1B quota can be used up relatively quickly.

Keeping the above information in mind, it is advisable for those who already have a job offer to file the petition as early as possible to rush for a quota number. If you fall within any one of the following categories, you do not need to worry about the H-1B quota restriction:

• The employer is an institution of higher education (College or University).
• The employer is a nonprofit organization or entity related to or affiliated with an institution of higher education (For example, a hospital affiliated with a university) and
• The employer is a nonprofit research organization or a governmental research organization.
• The medical doctors under J-1 status who are granted for 2-year waiver.
• The alien worker has been previously granted status as an H-1B nonimmigrant in the past 6 years and not left the U.S. for more than a year after attaining such status.
• The alien is in an H-1B status currently seeking to renew or extend the status (Renewal/Extension).
• The employer is non-cap exempt but having contracts/agreements with cap exempt employer (nonprofit research organization or a governmental research organization), and the alien worker will be assigned and working at the nonprofit research organization or a governmental research organization.
• The employer has registered with E-Verify systems and extended the employment of the alien workers. It only applies to the aliens with the major in science, technology, engineering and mathematics related field. These aliens may get the OPT extension for another 17 months through the employer (altogether 29 months for OPT), and file the H-1B petition within this period.

Each individual H-1B case has different situation. It is advisable to seek professional assistance to make sure the application is prepared and filed properly. If you have any H-1B related questions, please feel free to contact us by sending an email to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .  We offer free email consultation.

As we all know, to file an H1B extension petition for an alien worker, the U.S. employer is required to submit the application to USCIS before the expiration date as listed on the current H1B approval notice (a.k.a. the I-797 Notice of Action). USCIS normally approves an H-1B extension/renewal application without any problem, however, as a result of the current economy downturn and the recent changes in administrative procedures, the US employer can no longer get the H-1B extension approved easily. It will take a much longer time to both get it prepared and receive the decision. Therefore I am writing to bring this issue of pressing urgency to the attention of our institutional H-1B employers and their H-1B workers.

1. Do not wait until the last few days to prepare for the extension; file the extension application as early as possible. Why?

When filing any H1B application, obtaining a copy of an approved Labor Certification Application (LCA) from Department of Labor is the first priority. Up to now, the attorney or accredited representative could normally receive a copy online within 24 hours after putting through an electronic request on behalf of the employer. After June 30th 2009, a new system, called the iCERT System, will be formally introduced to replace the current one in use. After its implementation, the approved LCA won't be available in a day. In fact, the latest feedback from the tryout shows that it needs at least two weeks via iCERT System to obtain an approved LCA. Even worse, there are attorneys complaining that after three or four weeks, they have not received the copy yet. According to the words of a Department of Labor Officer who was addressing AILA members last week, their TARGETED time of granting approval via iCERT is within seven days. But he then corrected it to seven business days. Be it seven days or seven "business" days, it indicates that after June 30th there will be certain difficulty to get a copy of LCA in time. Given the indispensability of LCA to H1B applications, we shall allow enough time for the preparation unless USCIS would accept later-submitted LCA after receiving the filing of the corresponding H1B extension. As the earliest time for filing H1B extension application is six months before the expiration date, you may ask what is the latest timeframe for preperation? Well, it all depends. I would suggest starting the preparation at least one month in advance. However, since you never know what will happen next, the point is, the earlier, the better.

2. Getting approval for H1B extension application won't be as easy as before. Don't take it for granted that an extension would be obtained effortlessly, since nothing actually changes in the current H1B position. Why?

USCIS, California Service Center in particular, is getting stricter with H1B applications, including H1B extension applications. Small-sized companies, especially those in the line of IT consulting, have been seeing an increasing number of "Request for Evidence" (RFE) Notices with excessive or draconian requirements on documentation. If the response to RFE fails to meet the requirements, the case would simply be denied. A few attorneys have been complaining about similar cases. And such denials caused the U.S. employers to terminate their ongoing projects prematurely. No matter whether the intent of such practice is to constrain the employment of alien workers, or there just has been an update of processing guidelines, it is worthwhile to attach importance to the H1B extension application.

3. Requirements on document are not as simple as before. The paperwork which normally would not be necessary has to be submitted now. Why?

To help xielaw.com visitors find this important H-1B article easily we've prepared a short list of or different spellings or misspellings of H-1B related issues:  h1b visa renwal, h1b extension, h1b transfer, h1b status, h1b approval, h1B quota, h1b application, h1b fee, h1b cap, h1b visa requirements, h1b employer, h1b lawyer, h1b visa, h1b visa stamping, h1b salary, h1b prevailing wage, h1b work visa, h1b sponsor, h1b title, h1b process, h-1b visa renwal, h-1b extension, h-1b transfer, h-1b status, h-b approval, h-1B quota, h-1b application, h-1b fee, h-1b cap, h-1b visa requirements, h-1b employer, h-1b lawyer, h-1b visa, h-1b visa stamping, h-1b salary, h-1b prevailing wage, h-1b work visa, h-1b sponsor, h-1b title, h-1b process, h 1b visa renwal, h 1b extension, h 1b transfer, h 1b status, h 1b approval, h 1B quota, h 1b application, h 1b fee, h 1b cap, h 1b visa requirements, h 1b employer, h 1b lawyer, h 1b visa, h 1b visa stamping, h 1b salary, h 1b prevailing wage, h 1b work visa, h 1b sponsor, h 1b title, h 1b process, h1-b visa renwal, h1-b extension, h1-b transfer, h1-b status, h1-b approval, h1-B quota, h1-b application, h1-b fee, h1-b cap, h1-b visa requirements, h1-b employer, h1-b lawyer, h1-b visa, h1-b visa stamping, h1-b salary, h1-b prevailing wage, h1-b work visa, h1-b sponsor, h1-b title, h1-b process.

The employer is required to make a filed labor condition application and necessary supporting documentation available for public examination at the employer's principal place of business in the U.S. or at the place of employment within one working day after the date on which the labor condition application is filed with DOL. The following documentation shall be necessary:

(1) A copy of the certified labor condition application (Form ETA 9035E or Form ETA 9035) and cover pages.

(2) Documentation which provides the wage rate to be paid the H-1B nonimmigrant;

(3) A full, clear explanation of the system that the employer used to set the "actual wage" the employer has paid or will pay workers in the occupation for which the H-1B nonimmigrant is sought, including any periodic increases which the system may provide--e.g., memorandum summarizing the system or a copy of the employer's pay system or scale (payroll records are not required, although they shall be made available to the Department in an enforcement action).

(4) A copy of the documentation the employer used to establish the "prevailing wage" for the occupation for which the H-1B nonimmigrant is sought (a general description of the source and methodology is all that is required to be made available for public examination; the underlying individual wage data relied upon to determine the prevailing wage is not a public record, although it shall be made available to the Department in an enforcement action); and

(5) A copy of the job notice with which the employer has satisfied the union/employee notification requirements.

(6) A summary of the benefits offered to U.S. workers in the same occupational classifications as H-1B nonimmigrants, a statement as to how any differentiation in benefits is made where not all employees are offered or receive the same benefits (such summary need not include proprietary information such as the costs of the benefits to the employer, or the details of stock options or incentive distributions), and/or, where applicable, a statement that some/all H-1B nonimmigrants are receiving "home country" benefits (see 20 CFR§ 655.731(c)(3) for the details);

(7) If the employer undergoes a change in corporate structure, the following documents are needed:

a. A sworn statement by a responsible official of the new employing entity that it accepts all obligations, liabilities and undertakings under the LCAs filed by the predecessor employing entity;
b. A list of each affected LCA and its date of certification;
c. A description of the actual wage system and FEIN of the new employing entity (see 20 CFR § 655.730(e)(1) for the details).

(8) Where the employer utilizes the definition of "single employer", a list of any entities included as part of the single employer in making the determination as to its H-1B-dependency status (see 20 CFR § 655.736(d)(7) for the details);

(9) Where the employer is H-1B-dependent and/or a willful violator, and indicates on the LCA(s) that only "exempt" H-1B nonimmigrants will be employed, a list of such "exempt" H-1B nonimmigrants (see 20 CFR § 655.737(e)(1) for the details;

(10) Where the employer is H-1B-dependent or a willful violator, a summary of the recruitment methods used and the time frames of recruitment of U.S. workers (or copies of pertinent documents showing this information) (see 20 § 655.739(i)(4) for the details.

Above list is not an inclusive list.  It is strongly suggested that an H-1B employer seek professional legal assistance to get all paperwork complied with the regulation requirements to eliminate or reduce the corporate liabilities.  For assistance from this office, please send an email to This e-mail address is being protected from spambots. You need JavaScript enabled to view it .

June 21, 2005

Washington, D.C.- U.S Citizenship and Immigration Services (USCIS) announced today that employers of
H-1B1 Free Trade nonimmigrants from Chile and Singapore must file fees required by the H-1B Visa Reform Act of 2004. Since the new fee structure took effect on December 8, 2004, USCIS has received a number of petitions from employers of H-1B1 Free Trade nonimmigrants from Chile or Singapore without the additional filing fee. USCIS announced that after July 20, 2005 it will reject all cases filed for H-1B1 Free Trade nonimmigrants from Chile and Singapore without the proper filing fee. In the interim, the Nebraska Service Center will continue to accept H-1B1 cases without the correct fee and seek the proper fee payment through a Request for Evidence.
In particular, the additional filing fee is required for H-1B1 Free Trade nonimmigrants from Chile and Singapore in the following situations. Employers should complete and file the Petition for a Non-immigrant Worker (Form I-129), the Nonimmigrant Classification based on Free Trade Agreement Supplement to Form I-129 and the H-1B Data Collection and Filing Exemption Supplement (previously Form I-129W).

• Employers seeking to employ a current H-1B1 Free Trade nonimmigrant from Chile or Singapore presently employed by another H-1B1 employer.

• Employers requesting an initial extension of H-1B1 status for an H-1B1 Free Trade nonimmigrant from Chile or Singapore they presently employ.

• Employers seeking to change an alien's status and employ an alien as an H-1B1 Free Trade nonimmigrant from Chile or Singapore in "new employment."

The additional fee required by H-1B Visa Reform Act of 2004 for H-1B1 employers is $1,500 for businesses with 26 or more full-time employees and $750 for businesses with 25 or fewer full-time employees. In each instance, the number of full-time employees is determined by including any affiliate or subsidiary of the petitioning employer in the United States. Employers who are exempt from the additional filing fee are identified in section 214(c)(9)(A) of the Immigration and Nationality Act (INA).

The $500 Fraud Prevention and Detection Fee, also authorized by the H-1B Reform Act of 2004, is not required for aliens from Chile or Singapore seeking an initial grant, extension, or change of status to a H-1B1 Free Trade nonimmigrant or filing an amendment to authorize a change in H-1B1 employers.

An H-1B employer is required to file an amended petition when the following material changes occur:

(1) The job duties of the H-1B worker change significantly to the extent the duties are no longer those of the position identified on the original petition and the supporting LCA-state differently the change in duties arises to the level of a change in the specialty occupation., e.g., a physician is admitted to teach or conduct medical research and then seeks to provide clinical care;

(2) When the H-1B worker is assigned to a location in an area of employment not listed on the original LCA. A new labor condition application is required by the DOL.

(3)  When the H-1B job needs to be changed from a full time position to a part time position, or from a part time position to a full time position.

If there is one of any above changes on your H-1B workers' status, please contact Attorney Jeff Xie about preparing and filing the petition to amend the approved H-1B so that your company is in compliance with the regulation requirements.

However please also note that the following changes in employment do not require that an amended petition be filed:

(1) a change in job title without significant change in job duties;

(2) minor changes in job duties that do not affect the basic requirements of the job being performed by the H-1B worker;

(3) a promotion to a higher position within the same occupation provided that the alien is required to utilize the same academic training as was required in the former position, e.g., a promotion of an accountant to a supervisory accountant would not require amended petition because supervisory accountant would still be required to possess the theoretical knowledge of accounting normally possessed by an H-1B accountant;

(4) a change in salary, unless the change is so dramatic that it indicates a significant change in responsibility or duties;

(5) assignment to a new location for which a new LCA is not required (i.e., only a new posting is required under DOL rules);

(6) the employer's name changes but the underlying nature or terms of the H-1B employment does not;

(7) the employer is involved in a corporate restructuring, including but not limited to a merger, acquisition, or consolidation provided the new entity assumes all of the obligations and rights of the predecessor companies, and the terms and conditions of the H-1B employment remain the same.

If you have questions about any of above changes, please feel free to contact us.

This provides general information concerning displacement of U.S. workers by H-1B workers under the H-1B program. Special attestations (e.g., displacement) applicable to H-1B-dependent and willful violator employers sunset on October 1, 2003, but were restored effective March 8, 2005 by the H-1B Visa Reform Act of 2004.

A U.S. worker is displaced from a job under the H-1B program if the employer lays off the U.S. worker from a job that is essentially the equivalent of the job for which the H-1B worker is sought.

There are several requirements on H-1B work visa. To qualify for the H-1B visa category, the prospective H-1B employee must meet the following requirements:

1. The alien worker must have earned a bachelor's or higher degree.  If the degree was earned in a foreign country, the degree must be evaluated by a third agency to make it a U.S. equivalent 4 years bachelor's or higher degree from an accredited college or university.  If the foreign degree is 3 years bachelor's degree , a 3 years of work experience in same or similar field /occupation can be considered to one year additional education.
2. The alien worker must have a job offer from an employer in the United States.
3. The offered job must require at least a Bachelor's degree and it is related to the degree.
4. The offered wage (salary) must meet the prevailing wage requirement.
5. The US employer is willing to sponsor the H-1B petition.

In addition, if the offered job is in the occupations that require licensure or professional credentials (e.g., doctor, dentist, attorney, registered nurse, teacher), the alien worker must already hold such qualification before the H1B visa petition can be filed or the licensure requirement has been waived.

If you have met above requirements, we can get your H-1B prepared and approved.  If the job offer was issued by a private company and you do not have an H-1B before, your H-1B might have the quota or CAP issue.  Contact Xielaw to have your H-1B case evaluated.

The Immigration and Nationality Act provides several categories of nonimmigrant visas for a person who wishes to work temporarily in the United States. There are annual numerical limits on some classifications.

• H-1B classification applies to persons in a specialty occupation which requires the theoretical and practical application of a body of highly specialized knowledge requiring completion of a specific course of higher education.
• H-1B1 classification applies to citizens of Singapore or Chile.  There are some special requirements.  If you are a citizen of Singapore or Chile and have a job offer from an employer in the United States, please Contact Xielaw.
• H-1C classification is for nurses who wishes to work in health professional shortage areas. Only 500 H1C visas are granted annually and it is reserved only for about 14 eligible hospitals in the US. The visa is valid for three years and cannot be extended.  
• H-2A classification applies to temporary or seasonal agricultural workers;
• H-2B classification applies to temporary or seasonal nonagricultural workers. This classification requires a temporary labor certification issued by the Secretary of Labor (66,000);
• H-3 classification applies to trainees other than medical or academic. This classification also applies to practical training in the education of handicapped children;
• L classification applies to intracompany transferees who, within the three preceding years, have been employed abroad continuously for one year, and who will be employed by a branch, parent, affiliate, or subsidiary of that same employer in the U.S. in a managerial, executive, or specialized knowledge capacity;
• O-1 classification applies to persons who have extraordinary ability in the sciences, arts, education, business, or athletics, or extraordinary achievements in the motion picture and television field;
• O-2 classification applies to persons accompanying an O-1 alien to assist in an artistic or athletic performance for a specific event or performance;
• P-1 classification applies to individual or team athletes, or members of an entertainment group that are internationally recognized (25,000);
• P-2 classification applies to artists or entertainers who will perform under a reciprocal exchange program;
• P-3 classification applies to artists or entertainers who perform under a program that is culturally unique (same as P-1); and
• Q-1 classification applies to participants in an international cultural exchange program for the purpose of providing practical training, employment, and the sharing of the history, culture, and traditions of the alien's home country.
• TN visa allows citizens of Canada and Mexico, as NAFTA professionals to work in the United States.

 For any visa classifications that are not listed above, you may do the following:

• Search this site.
• Consult Xielaw.
• Post it on Xielaw Message Board.

Dear Sir or Madam:

Below are the fees that must be paid before your H-1B petition package is filed with USCIS:

1. Filing Fee: $320.
   
2. ACWIA Fee: $1,500 if the employer is employing 25 or more employees, OR $750 if the employer employs a total of no more than 25 full-time equivalent employees in the United States, including any affiliate

For an experienced attorney like Xielaw, H-1B application is a relatively simple process.  However there are a lot of paperwork to do in order for the USCIS to approve it.  A well-prepared H-1B petition package can win the approval without being requested for additional documents.  Attorney cannot prepare the H-1B petition package well without obtaining necesary documents or information from the alien worker. Therefore collection of necessary

If your company wants to offer or have offered a job (full time or part time) to someone who is not a US citizen or permanent resident, your company needs to contact us to process the H-1B work visa application so that he/she can work for your company.  The job offered or to be offered must require a minimum of a Bachelor's degree and the salary offered must meet the prevailing wage requirement set by US Department of Labor.  When  your company is ready to sponsor the H-1B application for your alien worker(s), you can follow the following steps to get your case started and completed:

1. Request a copy of Attorney-Client Agreement and document list by sending an email to us at This e-mail address is being protected from spambots. You need JavaScript enabled to view it
   
2. Send the required documents to our office by mail, or carrier.  You can choose to send the documents by fax or email and pay the attorney's fee online at Xielaw Virtual Terminal (if you are paying the fees).
   
3. Xielaw receives and reviews the documents for completeness and contact you and the employee if we have any questions.
   
4. Xielaw will prepare the necessary paperwork and send it to your company for review and signature.
   
5. Xielaw will submit the H-1B petition package with USCIS after we receive the signed paperwork and the filing fee checks from the employer.
   
6. Xielaw will get the H-1B approved and notify you and the employee of the approval notice immediately!

We provide life time free consultation to our H-1B clients (individuals and the employers) on any post H-1B approval issues including employment changes and green card evaluations.  If you are not sure about whether you have a good H-1B case, you can have  us give you free case evaluation before you start it with this office.

E-Verify is a free Internet-based system that allows employers to confirm the legal working status of new hires in seconds. With one click, E-Verify can match your new hire's Social Security Number and other Form I-9 information.

What is E-Verify, how does it work, and why do federal contractors have to enroll in E-Verify? And much more..

What responsibilities does an H-1B Employer have?

H-1B is an employer specific worker visa (status).  The H-1B holder can only work for the sponsor employer.  He or she must obtain another H-1B approval from another sponsoring employer if he or she wants to switch a job.   While he or she is employed with the sponsoring employer, the relevant laws or regulations require the employer to:

Dear US Employers:

Thank you for having us to handle your H-1B work visa petition for your alien employee(s)!  There are three types of fees in connection with this H-1B petition: (1)Governmental Filing/Application Fees; (2) Fees charged by or for this law office and (3)Fees charged by a third party.  These fees must be paid before our office files the H-1B petition package(s) with USCIS.  Please read the information below:

Our failing H-1B visa program is hurting America