The USCIS reported today that as of November 14, it has received 56,300 cap subject cases. As we previously advised, the government has already received 20,000 master’s degree cases.  With the jump of 6000 FY H-1B filings since November 2, the race is on. FY H-1B numbers may easily run out in the next two to three weeks – much earlier than anticipated.  When FY H-1B numbers are exhausted, employers will need to wait to file until April 1 for H-1B start dates of October 1, 2012, the beginning of the 2013 fiscal year.

The government’s 65,000 FY H-1B annual quota includes a set aside of 6800 H-1B visas for Chilean and Singaporean nationals, which makes the actual quota 58,200.  The government has not published how many unused H-1B visa numbers of that set aside for Chileans and Singaporeans are available from FY 2011, which the government will then add to this 2012’s FY quota.  [By way of reference, for FY 2010, the government determined it was able to add 6000 unused FY H-1B visas to FY 2011’s H-1B cap.] 

“Cap Gap” relief is available for recent graduates who work under F-1 optional practical training work authorization (OPT) cards which expire before October 1 of any given year:  They may remain on payroll while their H-1B petitions are pending, provided that the H-1B petition is filed while the student is within the period of OPT, the employer requests an October 1 start date under the petition, and the student has not violated her status.

Employers who use E-Verify may obtain an additional 17 months of work authorization for STEM graduates, for a total of 29 months of post degree work authorization. We may anticipate that the USCIS will provide more frequent updates of FY H-1B counts during this final stretch.

Each year as the holiday season approaches we provide our travel advisory to assist our employer clients and their foreign national employees in achieving successful re-entries to the United States after temporary travel abroad. Please note that we continue to see increased scrutiny from the State Department and the Department of Homeland Security on all applications. Additionally, many visa applicants continue to experience delays in visa issuance overseas due to heightened security clearances. We encourage your continued careful planning and advance notification to immigration counsel so that any potential causes for delay may be vetted and advised prior to departure and that you may set expectations with managers.

Passport Expiration and I-94 Validity
Customs and Border Protection officers have recently been limiting authorized stay on the I-94 form to the period of passport validity – regardless of the time remaining on the underlying visa stamp. For those whose passports expire less than six months from the date of intended entry, officers may deny their entry into the country.  Any foreign national contemplating travel should make sure that his or her passport is valid for at least six months beyond the date of intended entry into the U.S.  Additionally, please be aware that the expiration date noted on the Form I-94 card, issued upon arrival, controls the length of authorized stay in the U.S.  Therefore, foreign nationals should always carefully check Forms I-94 after every entry and be mindful to travel on passports which do not expire anytime soon.  Failing to carefully track I-94 expiration can result in a foreign national falling out of status unwittingly – not realizing that the time allotted by the visa or approval does not trump the issued Form I-94 but rather that the I-94 controls the period of authorized stay.  If apprehended, such an employee could be put into removal proceedings for visa overstay – even where he or she has time remaining on a visa.

Visa Stamps and Consular Interviews
Most non-immigrant visa holders traveling internationally who do not have currently valid visa stamps in their passports will need to acquire visa stamps at a U.S. Consulate overseas in order to return to the United States. Visa stamp appointments are typically in high demand during the holidays. Although acquiring visa stamps in Canada or Mexico is sometimes a favorable option, please contact counsel to inquire about whether this is a possibility.  Please note that some individuals may require visas to enter Canada or Mexico. Be prepared for detailed questions about your immigration history or anything else that that the Consular officer may deem appropriate to your eligibility, regardless of whether you apply in your home or other country.

In 2011, we have seen increased scrutiny by Consulates requiring additional information about the bona fides of a company or a job offer despite the nonimmigrant visa petition having been already been approved by the USCIS.  In particular, the focus appears to be on smaller size employers.  On behalf of our clients and all employers, WSM has been working with high-level groups connected to the Obama administration to advocate for a more supportive environment for entrepreneurs, startups, small businesses, and businesses in general.  Our efforts with a working group advising the U.S. Small Business Administration, as well as with the President’s Startup America initiative, are starting to pay off.  Clients and employees still report delays at Consulates on an inconsistent basis, though far less frequently in the past month compared to earlier in the year. Visa applicants must be prepared to provide copies of all information submitted with the visa petition and in response to USCIS requests for evidence, if any.

Detailed Travel Tips
For additional detailed information to ensure that your foreign national employees maintain proper documentation for international travel and continued seamless employment, please ask us for our firm’s Frequently Asked Questions on Travel.