1. The Service Center Operations reports that as of May 24, 2008, all receipts have been issued for those cases selected in the random lottery. The only cases that have not been issued a receipt are cases that are being reviewed for duplicate filings.

2. The USCIS has received approximately 500 petitions that are believed to be duplicates. Each of these cases will be reviewed and determination of duplicate filing will be made on a case-by-case basis.

3. The USCIS received a sufficient number of petitions during the random selection process to meet the cap limit. Consequently, the USCIS will not have to utilize the cases that were saved on the reserve list. The USCIS begun to mail back rejected cases this week.

This is definitely positive news for individuals who will be running out of time on H-1B status.

How does the H-1B quota work?

Each governmental fiscal year, the United States Citizenship and Immigration Service (USCIS) makes a predetermined number of H-1B visas available to those individuals who qualify. The government’s fiscal year begins on October 1^st but employers can begin applying for H-1B visas six months ahead of time. Therefore, the first available day for employers to file H-1B visas this year is April 1^st, 2008. The H-1B is a specialty occupation visa. A specialty occupation is defined as an occupation that requires at least a bachelor’s degree in the field of occupation for entry into the position. The H-1B visa is the most popular work visa category for foreign professionals working in the United States. For the past few years, the number of new H-1B visa applicants has greatly out numbered the number of visas allotted to this category. The “H-1B Cap” is presently set at approximately 58,000 visas with and additional 20,000 visas available to those individuals who have already earned a masters degree from an accredited US institution of higher learning. Based upon past history, it is anticipated that the USCIS will receive more than enough petitions to meet the regular H-1B cap of 58,000 on April 1^st, 2008, the first day that H-1B filing is allowed. The additional 20,000 masters’ cap will most likely be exhausted shortly thereafter. Please note that those individuals already working in the United States onH-1B visa do not count against the H-1B cap.

The MVP Law Group can help you increase your chances of obtaining an H-1B visa this year

The MVP Law Group prides itself on its superior client service, technical expertise, high-quality work, years of experience with a concentration in business immigration law, strict personal/professional ethics, and creative problem-solving ability. The MVP Law Group is well versed in the H-1B process. Over the years we have filed thousands of H-1B petitions. We have extensive experience in guiding employers of all sizes and individuals through the H-1B petition process.  We provide high-quality legal services by placing a premium on flexibility, state-of-the-art technology, personal integrity and a philosophy in which the client's needs are paramount. By utilizing these qualities, we have been extremely successful in filing H-1B petitions under cap deadlines and are ready to assist you with filing H-1B petitions under this year’s cap. Our law firm has already begun preparing cases for the cap deadline and we encourage you to do the same.

If you are an employer considering hiring new H-1B workers or if you are a foreign national considering working in the U.S. on H-1B visa, you should make a decision soon as to whether your would like to file an H-1B visa petition this year.

If you are considering filing H-1B visas, contact our office by calling (240) 390-0600 and set up a free consultation.

We look forward to hearing from you and assisting you with your H-1B petition.

Employers looking to hire new H-1B professionals are urged to begin the H-1B petition process now. Keep in mind that last year, all 65,000 H-1B numbers were utilized within 56 days of the April 1^st filing date. This year we anticipate that the H-1B cap will be met even earlier.

The H-1B cap does not apply to foreign nationals who already hold H-1B status and are seeking to change the H-1B employer and/or extend their H-1B stay in the United States.

The H-1B visa Reform Act of 2004, which went into effect on May 5, 2005, changed the H-1B filing procedures for fiscal year 2005 and for future fiscal years. The regulations make available 20,000 new H-1B visas for foreign workers with a minimum of a master's level degree from a U.S. academic institution, in addition to the Congressionally mandated annual cap of 65,000 H-1B visas.

The new regulations, which took effect on May 5, 2005, changed the H-1B filing procedures for FY 2005 and for future fiscal years. The regulations make available 20,000 new H-1B visas, only for foreign workers with a minimum master's level degree from a U.S. academic institution, in addition to the Congressionally mandated annual cap of 65,000 H-1B visas.

The H-1B visa program is utilized by some U.S. businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in a specialized field, such as scientists, engineers, or computer programmers. Congress created the H-1 B program more than fifty years ago and established an annual cap of 65,000 in 1990.

As part of the H-1B program, the Department of Homeland Security (DHS) requires U.S. employers to meet specific labor conditions to ensure that American workers are not adversely impacted, while the Department of Labor's Wage and Hour Division safeguards the treatment and compensation of H-1B workers.

Contact Information for the Service Centers is:

Dallas Backlog Pcocessing Center
ETA/DFLC Backlog Processing Center
U.S. Department of Labor
700 North Pearl Street
Suite 400 N
Dallas, TX 75201
Phone: 214-237-9111
Fax: 214-237-9135

Philadelphia Backlog Procesing Center
ETA/DFLC Backlog Processing Center
U.S. Department of Labor
1 Belmont Avenue
Suite 200
Bala Cynwyd, PA 19004
Phone: 484-270-1500
Fax: 484-270-1600

What Steps Need To Be Taken To Upgrade an FY2005 Petition To A FY2006 Petition ?
The USCIS reiterated that if a new LCA with a current validity date is obtained and filed with the USCIS with the request for an upgrade to a FY2005 filing date, the upgrade may be approved. For upgrade requests it is sufficient for the employer or their attorney to submit the H-1B approval notice or a receipt notice along with a letter requesting the upgrade. The employer or their attorney should also include a new approved LCA with a FY2004 start date as mentioned above. It is not necessary for the employer/petitioner to submit a new, original signature on a petition or in a letter directly from the petitioner.

Premium Processing Cases For FY2005 Qualifying Under The Provisions Of The H-1B Visa Reform Act of 2004 Should Be File With The 1A Lemnah Drive Address
The 1A Lemnah Drive address trumps all other addresses, including for all Premium Processing purposes, for new FY2005 20,000 H-1B cases. All Premium Processing cases for the new 20,000 H01Bs must be filed at the Lemnah address. PLEASE NOTE: USCIS will not accept an I-907 Premium Processing request to upgrade an already-approved FY2006 H-1B petition. USCIS expects to adjudicate promptly all requests to upgrade an already approved FY2006 case, thereby moderating any adjudication time differential.

The USCIS has reiterated in the aforementioned regulation that the 20,000 H-1Bs will be utilized only for individuals who possess a US masters degree or higher. This 20,000 H-1B allocation is in addition to the yearly 65,000 cap imposed on H-1B visas and will be available to individuals with U.S. masters degrees or higher every fiscal year.

All petitioners should file eligible petitions with the Vermont Service Center

The USCIS has indicated that the Vermont Service Center will be the only center accepting H-1B applications for the FY2005 20,000 H-1B visa allocation. Petitions filed at any other center will be rejected. The USCIS also stated that it is suspending efilings of H-1B petitions until further notice in order to ensure that it can properly account for the 20,000 visas. Petitions should be filed at the following special address:

USCIS Vermont Service Center
1A Lemnah Drive
St. Albans, VT 05479-7001

Petitions pending or approved for FY2006 can be converted

The USCIS has also indicated that it will accept conversion requests from petitioners wishing to convert cases that have been approved or pending for the 2006 fiscal year to a start date on or before September 30, 2005. To convert such cases, the petitioner must send the USCIS the following documentation:
1)a letter requesting the conversion;
2)a copy of the approval notice of the FY2006 petition or a copy of the receipt notice for the FY2006 petition or the first two pages of the I-129 petition if the receipt notice has not been received or a new I-129 form; and
3)a certified Labor Condition Application (LCA) from the US Department of Labor that is valid for the requested period of employment.

The USCIS is not going to charge any fees for converting the petition. If all FY2005 numbers are used up by the time the conversion request is sent in, the original filing date will be utilized an a FY2006 start date will be assigned to the H-1B petition.

Cases processed in a first-in first-out basis

The USCIS indicated that it will process cases in a first in first out basis. The USCIS will utilize statistical data from past years to determine the final date of acceptance for the 20,000 visas. On the last day of filing, the USCIS will randomly select petitions on that date to reach the cap. In the interest of avoiding multiple filings, for this year (FY2005), the USCIS will automatically accept any petitions remaining after the FY2005 quota has been exhausted for a FY2006 (October 1, 2005) start date unless the petitioner clearly indicates on the petition that does not wish to pursue a FY2006 case. For future fiscal years such remaining petitions will be returned to the petitioner, along with a refund of the fees.

The E Treaty Trader and Treaty Investor

U.S. immigration officers often refer to the E status as a favored classification for international entrepreneurs. The treaty trader and treaty investor categories are the most ideally suited nonimmigrant visa category for international entrepreneurs. Pursuant to the Immigration and Nationality Act (INA) a treaty trader is an investor or business persons who is entitled to enter the United States under a treaty of commerce and navigation between the United States and the foreign state of which he is a national. Individuals entering the United States under this category are allowed to carry on international trade (via an E-1 visa) or to develop and direct a business in which they have invested a substantial amount of capital (via an E-2 visa). Admission under either E subcategory allows the entrepreneur to work at, direct, and manage an enterprise in the United States.

For entrepreneurs who want to take advantage of the E-2 treaty investor category by investing in a U.S. business venture, the U.S. enterprise must meet three basic criteria to support the admission as an E-2 investor. First, the enterprise must be owned and controlled by nationals of countries that have agreements or treaties of commerce and navigation with the United States. Second, the enterprise must prove that it has the present or future capacity to generate more than enough income to provide a "minimal living" for the treaty investor. Finally, the treaty national(s) must have made a substantial investment in the U.S. business relative to the amount normally needed to buy and successfully operate similar businesses.

The E status has several distinct advantages over other nonimmigrant visa categories. First, the E status is open-ended and may be extended in two-year increments indefinitely. Second, entrepreneurs with established businesses outside the United States may seek the transfer of managers and essential employees to the United States. Third, the spouse of an E-1 treaty trader or E-2 treaty investor may work with the permission of U.S. Citizenship and Immigration Services (USCIS). Finally, an entrepreneur may apply for the E visa at a U.S. consulate without the necessity of prior USCIS approval.

One limitation of the E category is admission on this status is restricted to citizens of countries that hold treaties of commerce and navigation with the United States. There are currently eighty countries that have such treaties and agreements with the United States. Some agreements support admission by both traders and investors while others are limited to only traders or only investors. Moreover, entrepreneur status is tied directly to the business. This could pose a potential problem. A merger, acquisition, sale, or failure of the business may lead to immediate status problems for the entrepreneur, employees in E status, and their families. Therefore, prior to any critical business restructuring is necessary to protect an E nonimmigrant from losing status.

For entrepreneurs who qualify, the E status offers an attractive option. It allows potentially long term stays in the United States, allows for the transfer of existing managers and essential employees, and provides for spousal employment authorization.
The following countries have trade and investment treaties with the United States and citizens of these countries are eligible for both E-1 and E-2 status:
Argentina, Australia, Austria, Belgium, Bolivia, Bosnia, Canada, Chile, Colombia, Costa Rica, Croatia, Estonia, Ethiopia, Finland, France, Germany, Honduras, Iran (with restrictions), Ireland, Italy, Japan , Jordan, South Korea , Latvia, Liberia, Luxembourg, Macedonia, Mexico, Netherlands, Norway, Oman, Pakistan, Paraguay, Philippines, Singapore, Slovenia, Spain, Suriname, Sweden, Switzerland, Thailand, Taiwan, Togo, Turkey, United Kingdom, and Yugoslavia.
The following countries have trade treaties with the United States which allow for conferral of E-1 (treaty-trader status) to the nationals of said countries:
Brunei, Denmark, Greece, and Israel.
The following countries have investment treaties with the United States which allow for conferral of E-2 (treaty-investor status) to the nationals of said country:
Albania, Armenia, Azerbaijan, Bahrain, Bangladesh, Bulgaria, Cameroon, Congo, Czech Republic, Ecuador, Egypt, Estonia, Grenada, Georgia, Jamaica, Kazakhstan, Kyrgyzstan, Lithuania, Moldova, Mongolia, Morocco, Panama, Poland, Romania, Senegal, Slovakia, Sri Lanka, Trinidad & Tobago, Tunisia, Ukraine

The H-1B Temporary Professional Worker

For those entrepreneurs who are not nationals of a "treaty" country or whose investment does not meet the substantiality requirements of the E visa, the H-1B visa may be an option. The regulations governing H-1B visas provide that a U.S. employer or agent with an IRS tax identification number that employs at least one worker and has an employee-employer relationship with that worker may petition for an H-1B professional. By limiting petitioners to U.S. employers or agents, the H-1B visa classification prohibits self-sponsorship. Therefore, the entrepreneur would need to set up a U.S. based venture to act as an employer in order to utilize the H-1B visa option.

Once the entrepreneur organizes a U.S. based business venture in order to file an H-1B petition on their behalf, several requirements must be met. Where the petitioning company is new or has few employees, the USCIS will require the entity to provide significant documentation proving the bona fide nature of the petitioner's job offer. The petitioning entity may be requested to submit its organizational documentation, records regarding its financial health, including capitalization, and records that establish compliance with claimed employment practices. Moreover, the petitioner will need to prove to the USCIS that it has sufficient business to ensure that the H-1B worker (beneficiary) will work for the entity in H-1B capacity as noted on the petition. A comprehensive business plan and evidence of capitalization may satisfy the government's concerns with respect to this issue.

The H-1B status presents a viable immigration option for entrepreneurs. First, it is available without restriction as to nationality. Second, unlike the E classification, a merger or acquisition may, but will not necessarily, require a change of status. The entrepreneur may buy or sell his or her business and stay in status so long as the new entity assumes the immigration obligation of the petitioner, and the H-1B status holder continues to render services.

However, the H-1B may present some drawbacks to an entrepreneur. First, admission to the United States as an H-1B visa holder is generally limited to a period of six years unless an immigrant petition or labor certification application is filed on behalf of the entrepreneur prior to the end of the fifth year. Second, the classification is principally limited to workers rendering services in a specialty occupation. This means that the services to be rendered by the entrepreneur must be professional in nature. Third, most entrepreneurs will be subject to the annual 65,000 H-1B visa cap, thereby creating the risk of delayed admission. Finally, spouses of the H-1B entrepreneurs will not be entitled to work in the United States unless they secure an employment authorized status of their own. Despite of these issues, the H-1B visa is a viable immigration option for entrepreneurs who will be rendering services of a professional nature.

The L Intra-company Transferee

For entrepreneurs who own and manage an existing business abroad, the L classification provides an important avenue for making and managing investments in the United States. The L classification allows the foreign corporation to transfer managers, executives, and specialized knowledge employees to its sister corporation(s) in the United States. The L visa classification thereby makes it possible for the transfer of an employee/owner of the foreign business to the United States. In order to qualify for the L classification certain basic requirements must be met. First, the relationship between the U.S. petitioner and entity abroad must be established. Second, the beneficiary of the L-1 visa must have been employed by the entity abroad for one year prior to filing the petition. Third, the beneficiary's role abroad must have been in an executive, managerial, or specialized knowledge capacity. Finally, the U.S. petitioner must prove that it is already or will be conducting business in the United States and abroad through a related qualifying organization.

The L-1 category allows an ownership interest in the petitioning entity by an applicant seeking admission as an L-l visa holder. However, where the beneficiary is an "owner or major stockholder of the company," the petition must include some evidence that the petitioner's need for the beneficiary is temporary and that the beneficiary will be transferred abroad upon completion of his or her temporary services. Once admitted to the United States in L status, the entrepreneur is authorized only to render services to the L petitioner. However, the L visa holder may receive remuneration from the petitioner or a related foreign enterprise. Typically, admission as an L-1A manager or executive is limited to seven years and admission as an L-1B specialized knowledge worker is limited to five years. Similar to spouses of E visa holders, the spouses of L visa holders may obtain employment authorization.

Conclusion

The E visa, H1B and L1 visas all offer entrepreneurs numerous advantages when considering non-immigrant and immigrant opportunities. The benefits and disadvantages of each of these options have been briefly explained, so that an educated decision can be made when determining how to move forward with your immigration matters. To fully understand which option would be most beneficial to you and your business, it is important to speak to an immigration professional that can completely assess your situation and provide legal guidance.

Before October 1, 2003, employers who used the H-1B program were required to pay an additional $1,000 fee imposed by the American Competitiveness and Workforce Improvement Act of 1998 (ACWIA). In part, that $1,000 fee paid for U.S citizens, lawful permanent residents and other U.S. workers to attend job training and receive low-income scholarships or grants for mathematics, engineering or science enrichment courses administered by the National Science Foundation and the Department of Labor. Those ACWIA fee requirements sunset on October 1, 2003.

The H-1B provisions of the Omnibus Appropriations Act reinstitutes the ACWIA fee and raises it to $1,500. Petitioners who employ no more than 25 full-time equivalent employees, including any affiliate or subsidiary, may submit a reduced fee of $750. Certain types of petitions, that were previously exempt from the $1,000 fee, are still exempt from the new $1,500 and $750 fee. The new $1,500 and $750 fee applies to any non-exempt petitions filed with USCIS after December 8, 2004.

In addition, the Act creates a new Fraud Prevention and Detection Fee of $500 which must be paid by petitioners seeking a beneficiary's initial grant of H-1B or L nonimmigrant classification or those petitioners seeking to change a beneficiary's employer within those classifications. Other than petitions to amend or extend stay filed by an existing H-1B or L employer, there are no exemptions from the $500 fee. The new $500 fee applies to petitions filed with USCIS on or after March 8, 2005.

Each of these fees is in addition the to base processing fee of $185 to file a Petition for a Nonimmigrant Worker (Form I-129) and any premium processing fees, if applicable.

H-1B Cap.

New Exemptions from the H-1B Cap.

This Act, and Public Law 108-441 (Dec. 3, 2004), provides new exemptions from the congressionally mandated annual H-1B cap. The first 20,000 H-1B beneficiaries who have earned a master's degree or higher from a U.S. institution of higher education are not subject to the annual congressionally mandated H-1B visa cap of 65,000. After those 20,000 slots are filled, USCIS is required to count those cases against the cap for the remainder of the fiscal year.

For FY 2005, the new provision will allow USCIS to accept new petitions on behalf of up to 20,000 beneficiaries meeting these criteria. Petitions under this provision cannot be filed at this time. USCIS will provide additional guidance on eligibility and process at a later date. Once this this guidance is published on the federal register, USCIS will begin accepting these additional 20,000 H-1B applications.

Certain Physicians are exempt from the Cap as well.

Public Law 108-441 extended the "Conrad 30" J-1 program covering certain medical graduates.

Medical graduates currently in the United States on a J-1 (exchange) visa who receive a waiver of the two-year residency requirement if requested by either a federal or state agency are now exempt from the H-1B cap. Qualifying employers of these beneficiaries may submit H-1B petitions, notwithstanding the fact that the H-1B cap was already met for FY 2005, after December 8, 2004. Petitioners must separately evaluate whether an H-1B petitioner is exempt from certain fees and whether the petition is exempt from the H-1B cap, because the rules applicable to each type of exemption are not the same. For example, a petition by an otherwise non-exempt employer to extend the H-1B stay of a beneficiary for the first time would be exempt from the H-1B cap, but not from either the $1,500 or $750 fee.