H-1B visa usage statistics confirm U.S. employers are not hiring as much as some reports would like us to believe

H-1B season opened several weeks ago on April 1st and we are off to a SLOW start. This comes as great news for employers and foreign nationals who would like to secure Hs this year [for a start date of October 1, 2011] but is also a clear indicator that U.S. employers are simply not hiring as much as some reports would like us to believe.

Below you will find an update on how many H-1Bs have been used this year and a look back at H-1B usage since 2007. Clearly, H-1B usage is WAY down from ‘07 and ’08, when the 65,000 H-1B cap was met in the very first days of April! 

In comparison, since 2009, the H-1B Cap of 65,000 has not been met for at least nine months or more, and based on usage in the first two weeks of this year, we estimate this year’s Cap will be open through to March 2012.

2011 H-1B Season [FY2012]
Cap Subject H-1Bs filed as of April 15: 7,100
Cap Hit: To Be Determined [estimated March 2012 based on first two weeks usage]

2010 H-1B Season [FY2011]
Cap Subject H-1Bs filed during first week of April: 13,500
Cap Hit: January 27, 2011 [ten months later]

2009 H-1B Season [FY2010]
Cap Subject H-1Bs filed during first week of April: 42,000
Cap Hit: December 21, 2009 [nine months later]

2008 H-1B Season [FY2009]
Cap Subject H-1Bs filed during first week of April: 140,000
Cap Hit: Immediately! First days of April 2008

2007 H-1B Season [FY2008]
Cap Subject H-1Bs filed during first week of April: 123,000
Cap Hit: Immediately! First days of April 2007

NIW [National Interest Waiver] green card petition approved for PhD student with only 3 scientific research publications and seven citations!

We are pleased to report an excellent decision from the USCIS [United States Citizenship and Immigration Service] Nebraska Service Center on a national interest waiver green card petition!

This was a challenging petition for a highly skilled, but young, social researcher, dedicated to improving the lives of America’s elderly population.  USCIS acknowledged “that the proposed employment was in the national interest of the United States”. BUT, USCIS also had serious doubts about whether our client’s “past record of specific prior achievement justified projections of future benefit in the national interest”.

By working closely with our client and some of the leading organizations in the United States devoted to research and education in all aspects of gerontology, we prepared a comprehensive response which clearly demonstrated that despite our client’s low number of publications/citations, her impact on the field was substantial.  Specifically, we solicited the opinions of the aforementioned leading organizations, and documented her influence on the field by showing that other leading figures in the field were not only taking notice of her work, but were also using it to advance their own work. 

Ultimately, we are so pleased that our client can now focus on helping America’s elderly population without being distracted by the immigration process!

Please find a description of the legal requirements for the EB-2 I-140 NIW petition after the jump.

Request for approval under the EB-2 NIW [Employment Based Second Preference, National Interest Waiver] category is made through a Form I-140 Petition for Immigrant Worker, filed with the USCIS. 

This category does NOT require an employer to act as a sponsor, allowing a foreign national to “self-petition”.  Further, based on current supply and demand for green cards, if the foreign national was born in a country other than India, China, Dominican Republic, Mexico or Philippines, the Form I-140 petition may be filed concurrently with a Form I-485 adjustment of status application – effectively allowing the foreign national to adjust from a temporary [nonimmigrant] status in the United States [such as F-1, J-1 or H-1B] to lawful permanent resident [green card] status.

Notably, for cases where the strength of the NIW case is questionable, it is also possible to file a stand-alone Form I-140 petition, which is a good way to “test the waters” and control cost.

The legal requirements for the EB-2 NIW are as follows:

(1) a history of past achievement that will lead to tangible benefits in the national interest;
(2) that you will continue to work in an area of substantial intrinsic merit;
(3) that your application for permanent residence deserves to be placed at the head of the line because your  work serves the national interest to a substantially greater degree than others.

The current legal standard for EB-2 NIW cases is derived from a CIS Administrative Appeals Office (AAO) decision, Matter of New York State Dept. of Transportation, Int. Dec. 3363 (Comm. 1998) (“NYSDOT”).

This case established a three pronged test:

(1) the self-petitioner must seek employment in an area of work that is of “substantial intrinsic merit;”
(2) the self-petitioner must demonstrate that the proposed benefit will be “national in scope;” and
(3) the self-petitioner must establish that he will serve the national interest to a “substantially greater degree” than would an available U.S. worker having the “same minimum qualifications.”

In order to meet the third prong of the NYSDOT test, an applicant must do more than merely work in an area of intrinsic merit that is national in scope, as required under the first two prongs of the NYSDOT test. The AAO restated this test as whether “[the employer would be] unlikely to locate a qualified worker who can benefit the United States in the same degree.” The applicant must distinguish herself from the hypothetical minimally qualified U.S. worker in one of two ways:

(1) by presenting a record of past achievement (e.g., a track record of accomplishment) that would reasonably lead to tangible benefits to the national interest; or
(2) by demonstrating that he/she is playing a key or critical role in a project that will yield tangible benefits and is national in scope.

Please don’t hesitate to contact the attorneys at Ryvin Wallace Group if you want to discuss your case for the National Interest Waiver!