FY 2011 H-1B Cap Count
As of July 16, 2010, approximately 25,300 H-1B cap-subject petitions were receipted. Additionally, USCIS has receipted 11,000 H-1B petitions for aliens with advanced degrees.

USCIS fee increase proposed rule clears OMB

On June 2, 2010, the Office of Management and Budget (OMB) completed its review of the U.S. Citizenship and Immigration Service’s (USCIS) proposed rule to adjust the USCIS fee schedule.  According to the OMB notice, the proposed rule “will adjust the fee schedule for U.S. Citizenship and Immigration Services (USCIS) immigration and naturalization benefit applications and petitions, including nonimmigrant applications and visa petitions. These fees fund the cost of processing applications and petitions for immigration benefits and services, and USCIS associated operating costs. USCIS is revising these fees because the current fee schedule does not adequately recover the full costs of services provided by USCIS.”  Now that the proposed rule has been cleared by OMB, USCIS can proceed with publishing the rule in the Federal Register.

USCIS has advised stakeholders and the media on several occasions this year that increasing filing fees may be necessary; however, until the proposed fee schedule is published in the Federal Register, there is no way to know what the new fees will be.  We would note that OMB completed its review of the USCIS proposed rule in less than a month, suggesting that the rule is on a fast track to publication.   Generally, when the new fee schedule is published, it will have an implementation date 30-60 days after publication.

FY 2011 H-1B Cap Count
As of April 27, 2010, approximately 16,500 H-1B cap-subject petitions were filed. Additionally, USCIS has receipted 6,900 H-1B petitions for aliens with advanced degrees.

Previously, as of April 15, 2010, approximately 13,600 H-1B cap-subject petitions were filed. USCIS has received 5,800 H-1B petitions for aliens with advanced degrees.

USCIS - Expedite Criteria

USCIS - Expedite Criteria

All expedite requests are reviewed on a case-by-case basis, and are granted at the discretion of the Director. The burden is on the applicant or petitioner to demonstrate that one or more of the expedite criteria have been met. The criteria are as follows:

• Severe financial loss to company or individual
• Extreme emergent situation
• Humanitarian situation
• Nonprofit status of requesting organization in furtherance of the cultural and social interests of the United States
• Department of Defense or National Interest Situation (Note: Request must come from official United States Government entity and state that delay will be detrimental to our Government)
• USCIS error
• Compelling interest of USCIS

If you are filing your application or petition:

You must provide a written explanation as to why the application or petition needs to be expedited.  You may include supporting evidence with the request.  Write “EXPEDITE REQUEST” at the top of your letter.  When you file your application or petition, place your expedite request letter on the top of your documents.   

If you have already filed your application or petition:

You can contact the National Customer Service Center (NCSC) at 1-800-375-5283.  The NCSC will take a “service request” and forward your expedite request to the office with jurisdiction over the application or petition.  You also have the options of 1). visiting your local office by scheduling an InfoPass appointment or 2). writing a letter to the local office or service center.

PRACTICE NOTE: Recent NIW approvals by our law firm
Case 1: National Interest Waiver was filed to Nebraska Service Center in December, 2009. Applicant works for a state agency. NIW approved in February, 2010. No RFE.  Applicant is a native of India.

Field of expertise: transportation planning and emissions modeling. Education: Ph.D. Claimed national interest: research in the field of transportation planning contributes to the national interest of the U.S., particularly as we redouble our efforts to reduce greenhouse gas emissions associated with the transportation sector. Time from filing to approval: 2 months. Summary of qualifications: 2 books; 9 papers; moderate amount of citations. 

Case 2: National Interest Waiver was filed to Texas Service Center in April, 2009. Case transferred tp Nebraska Service Center. Applicant is a  Postdoctoral Researcher at a for-profit company. NIW approved in January, 2010. No RFE.  Applicant is a native of Romania.

Field of expertise: physics and biophysics. Education: Ph.D. Claimed national interest: research in biphysics seeks to understand the molecular properties of biopharmaceutical products in order to achieve higher efficiency and reduced costs of biopharmaceutical manufacturing. Time from filing to approval: 9 months. Summary of qualifications: 9 papers; good amount of citations. 

Case 3: National Interest Waiver was filed to Texas Service Center in March, 2009. Applicant is a  Postdoctoral Fellow at a state university. NIW approved in January, 2010. No RFE.  Applicant is a native of Taiwan.

Field of expertise: cancer biology. Education: Ph.D. Claimed national interest: basic research in cancer biology has profound impact on basic science as well as biomedical applications. Time from filing to approval: 10 months. Summary of qualifications: 6 papers; modest amount of citations. 

Case 4: National Interest Waiver was filed to Texas Service Center in November, 2009. Applicant is a  Postdoctoral Fellow at a public university. NIW approved in December, 2009. No RFE.  Applicant is a native of India.

Field of expertise: microbial stable isotope fractionation. Education: Ph.D. Claimed national interest: microbial stable isotope fractionation research has important implications to the international science community as well as policymakers who are dedicated to understanding and managing global environmental and human health threats related to climate change and mercury pollution. Time from filing to approval: less than 1 month. Summary of qualifications: 10 papers; good amount of citations. 

Case 5: National Interest Waiver was filed to Texas Service Center in July, 2008. USCIS later transferred the case to Nebraska Service Center. Applicant is a  Postdoctoral Fellow at a public university. NIW approved in July, 2009. No RFE.  Applicant is a native of Russia.

Field of expertise: semiconductor materials research. Education: Ph.D. Claimed national interest: semiconductor materials research has a wide range of critical military and civil applications. Time from filing to approval: 12 months. Summary of qualifications: 13 papers; moderate amount of citations. 

Case 6: National Interest Waiver was filed to Nebraska Service Center in February, 2009. Applicant is a Postdoctoral Scholar at a public university. NIW approved in July, 2009. Applicant is a native of  Taiwan.

Field of expertise: transportation research Education: Ph.D. Claimed national interest:  transportation related research is essential to the U.S. national interest, particularly as we redouble our efforts to manage increasing levels of urban congestion and to reduce greenhouse gas emissions associated with the transportation sector. Time from filing to approval: 5 months. Summary of qualifications: a large number of papers; moderate number of citations. 

Case 7: National Interest Waiver was filed to Texas Service Center in January, 2008. Applicant is a Postdoctoral Research Fellow at a prestigious private university. NIW approved in June, 2009. No RFE. Applicant is a native of  Germany.

Field of expertise: surface chemistry and physics. Education: Ph.D. Claimed national interest:  research in surface chemistry and physics plays an important role in maintaining the competitiveness of the U.S. economy. Time from filing to approval: 17 months. Summary of qualifications: a large number of papers; a large number of citations; performed review work for a significant number of journals. 

Case 8: National Interest Waiver was filed to Texas Service Center in January, 2008. Applicant is a  Ph.D. student at a research university. NIW approved in April, 2009. No RFE.  Applicant is a native of Serbia.

Field of expertise: developmental biology and genetics  research. Education: M.S. pursuing Ph.D., biology. Claimed national interest:  research in developmental biology and genetics seeks to understand the molecular basis of neurological development and function and lays the groundwork for future discoveries and contributes to the development of effective therapeutics. Time from filing to approval: 15 months. Summary of qualifications: 2 papers. 

Case 9: National Interest Waiver was filed to Nebraska Service Center in January, 2009. Applicant is a  senior research associate at a private university. NIW approved in May, 2009. No RFE.  Applicant is a native of  Italy.

Field of expertise: behavioral pharmacology and neuroscience. Education: M.D. and Ph.D. Claimed national interest:  research about psychiatric disorders such as obsessive-compulsive disorder, impulse-control disorders and schizophrenia has important implications for U.S. health care and the development of new treatments. Time from filing to approval: 4 months. Summary of qualifications: a large number of papers; significant review experience; Co-PI on a number of research grants. 

Case 10: National Interest Waiver was filed to Texas Service Center in January, 2008. Applicant is a  Ph.D. student at a research university. NIW approved in April, 2009. No RFE.  Applicant is a native of Serbia.

Field of expertise: developmental biology and genetics  research. Education: M.S. pursuing Ph.D., biology. Claimed national interest:  research in developmental biology and genetics seeks to understand the molecular basis of neurological development and function and lays the groundwork for future discoveries and contributes to the development of effective therapeutics. Time from filing to approval: 15 months. Summary of qualifications: 2 papers. 

Case 11: National Interest Waiver was filed to Texas Service Center in April, 2008. Applicant is a  Research Fellow at a research university. NIW approved in March, 2009. No RFE.  Applicant is a native of China.

Field of expertise: cancer biology and biomedical research. Education: PhD, cancer pathology. Claimed national interest:  research in cancer biology improves the scientific understanding of cancer, and also forms the basis on which new therapeutic approaches may be developed. Time from filing to approval: 11 months. Summary of qualifications: 5 papers; a small number of citations. 

Case 12: National Interest Waiver was filed to Nebraska Service Center in June, 2008. Applicant is a  Postdoctoral Researcher at a research university. NIW approved in March, 2009 after RFE.  Applicant is a native of China.

Field of expertise: transportation research. Education: PhD, systems and industrial engineering. Claimed national interest:  research in intelligent transportation systems seeks to develop advanced technologies to improve traffic safety, reduce congestion, and bring greater efficiency to the transportation system. Time from filing to approval: 8 months. Summary of qualifications: 5 papers; a small number of citations. 

Case 13: National Interest Waiver was filed to Nebraska Service Center in August, 2008. Applicant is a  Research Associate at a research university. NIW approved in February, 2009. No RFE.  Applicant is a native of China.

Field of expertise: biology. Education: PhD, biology. Claimed national interest:  epigenetics research has profound impact on the human society, including the creation of possible ways to help fight various diseases such as cancer. Time from filing to approval: 6 months. Summary of qualifications: 14 papers; a large number of citations. The petitioner's EB-1 extraordinary ability alien application was also approved. 

Case 14: National Interest Waiver was filed to Nebraska Service Center in August, 2008. Applicant is a  Postdoctoral Associate at a research institute. NIW approved in January, 2009. No RFE.  Applicant is a native of Romania.

Field of expertise: computational and mathematical biology. Education: PhD, physics. Claimed national interest:  research in the field of computational and mathematical biology seeks to advance our understanding of basic biological mechanisms and to identify novel targets for disease treatment. Time from filing to approval: 12 months. Summary of qualifications: 6 papers; a small number of citations. 

Case 15: National Interest Waiver was filed to Nebraska Service Center in February, 2008. Applicant is a  Postdoctoral Associate at a prestigious university. NIW approved in November, 2008. No RFE.  Applicant is a native of India.

Field of expertise: biofuel research. Education: PhD, genetic engineering and molecular biology. Claimed national interest:  development of biofuels alleviates America's dependency on foreign oil, and brings a number of environmental benefits. Time from filing to approval: 9 months. Summary of qualifications: 4 papers; very limited number of citations. 

Case 16: National Interest Waiver was filed to Nebraska Service Center in December, 2007. Applicant is a  Postdoctoral Research Researcher at a prestigious university. NIW approved in November, 2008. No RFE.  Applicant is a native of China.

Field of expertise: nanotechnology. Education: PhD, electronic and electrical engineering. Claimed national interest:  research in the multidisciplinary field of nanotechnology directly impacts America's competitive in science and technology. Time from filing to approval: 11 months. Summary of qualifications: 21 papers; good amount of citations. 

Case 17: National Interest Waiver was filed to Texas Service Center in January, 2008. Applicant is a  Postdoctoral Research Researcher at a prestigious university. NIW approved in August, 2008 after RFE.  Applicant is a native of Korea.

Field of expertise: medical imaging. Education: PhD, nuclear engineering and radiological sciences. Claimed national interest:  research in biomedical engineering and medical imaging aims to develop new techniques and therapies to treat cancer. Time from filing to approval: 7 months. Summary of qualifications: 11 papers; moderate amount of citations; Co-Investigators on two research grants. 

Case 18: National Interest Waiver was filed to Texas Service Center in January, 2008. Applicant is a  Research Professor at a major university. NIW approved in August, 2008. No RFE. Applicant is a native of Taiwan.

Field of expertise: atmospheric science. Education: PhD, earth and atmospheric science. Claimed national interest:  research in the field of atmospheric sciencesto better understand the impact of natural and man-made changes to the environment. Time from filing to approval: 7 months. Summary of qualifications: 7 papers; very limited citation record; PI of two project funded by a federal agency.

More sample cases are available here: http://www.gofindlaw.com/Services.aspx?sel=1

Temporary acceptance of filed LCA for H1B filing
In a memorandum dated 1/28/2010, USCIS clarifies its practice of temporarily accepting an H1B petition without an approved LCA.

On November 5, 2009, USCIS announced that for a 120-day period it would temporarily accept H1B petitions filed without LCAs that have been certified by DOL. However, USCIS will only accept such H1B petitions if they are filed at least 7 calendar days after the LCAs were filed with DOL and include evidence of these LCA filings. The only acceptable evidence of filing is a copy of DOL's email giving notice of receipt of the LCA. Petitioners who seeks to take advantage of this temporary flexibility in the normal filing procedures must wait until they receive an RFE before they can submit the DOL-certified LCA to USCIS in support of the H1B petition. The certified LCA must be the same LCA filed with the original petition, unless the petitioner provides an LCA that was certified prior to the submission of the H1B petition. USCIS will give petitioners a period of 30 calendar days to submit a DOL-certified LCA in response to the RFE. USCIS can only approve H1B petitions that include certified LCAs.

Also, USCIS will continue to excuse late filing, per 8 CFR214.1(c)(4) or 8 CFR 248.1(b). The late filing will be considered in instances whereby the delay in filing the petition requesting an extension of H1B stay or change of nonimmigrant status to H1B was related to LCA issuance delays beyond the control of the petitioner and/or denials by DOL due to FEIN check issues. Applicants who would like USCIS to consider a late filing should submit evidence indicating that the filing was delayed through no fault of the petitioner or beneficiary along with the H1B petition.

February Visa Bulletin
The Department of State released Visa Bulletin for the month of February. No major forward movement in any category. Employment 1st remains current. Employment 2nd - China advances 3 weeks to 22 May 2005. India is stalled at 22 January 2005. Rest of the world current. Employment 3rd skilled/professional workers -  Worldwide, China and Filipino numbers advance 7 weeks to 22 SEP 2002. India remains at 22 JUN 2001. Mexico remains at 1 July 2002.

USCIS memo extends the validity of Form I-693
In a memorandum by Donald Neufeld, Acting Associate Director, dated December 30, 2009, the validity of civil surgeon endorsements on Form I-693 for adjustment of status application is temporarily extended. Due to the continuing backlog of some adjustment applications, the validity of the civil surgeon's endorsement on Form I-693, when submitted in support of an adjustment of status application, is extended until the time of adjustment if no Class A or Class B medical condition is certified by the civil surgeon in section 2, 3 or 4 of Part 2 of the Form I-693. A Form I-693 remains valid until the time of adjustment even if section 6 of Part 2 shows a Class B medical condition other than those addressed in section 2, 3 or 4. This policy will be in effect until January 1, 2011.