On March 3, The U.S. Citizenship and Immigration Service (USCIS) announced that it will temporarily suspend premium processing for all H-1B petitions starting on April 3, 2017 until further notice. This suspension is anticipated to last for a period of up to 6 months. During this suspension, Petitioners are unable to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. USCIS has indicated that it will notify the public before resuming premium processing for H-1B petitions.

Who Is Affected

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017, which is the date FY18 cap-subject H-1B petition filings begin.  Therefore, the suspension applies to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”) as well as to petitions that may be cap-exempt.

While premium processing is suspended, USCIS will reject any Form I-907 filed with an H-1B petition. If the one combined check for both the Form I-907 and Form I-129 H-1B fees is included, both forms (i.e. the entire filing) will be rejected.

USCIS will continue to premium process H-1B petitions properly filed before April 3, 2017, however, USCIS will refund the premium processing fee if:

  1. The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
  2. USCIS did not take adjudicative action on the case within the 15-calendar-day processing period.

Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage.  It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and we encourage petitioners to submit documentary evidence to support their expedite request. USCIS will review all expedite requests on a case-by-case basis and requests will be granted at the discretion of USCIS leadership.

Why USCIS Is Temporarily Suspending Premium Processing for H-1B Petitions

According to USCIS, the temporary suspension will help it reduce overall H-1B processing times by enabling it to:

  • Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

 

U.S. Citizenship and Immigration Services (USCIS) announced on April 20, 2016 that that for two weeks after premium processing resumes for H-1B cap-subject petitions (scheduled to start on May 12, 2016), USCIS will temporarily suspend use of Pre-Paid Mailers. This means that USCIS will not use any provided pre-paid mailers submitted with H-1B cap petitions to return the final notices for premium processing subject H-1B cap petitions.  USCIS will instead use regular postal mail.

USCIS has stated that they have instituted this procedure due to resource limitations as they work to process all premium processing petitions in a timely manner.  After the two week period, USCIS will resume sending out final notices in pre-paid mailers, if provided by petitioners.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

On April 7, 2016, USCIS announced that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the master’s cap.

Yesterday USCIS announced that, on April 9, it used a computer-generated random selection process to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS also confirmed its receipt of more than 236,000 H-1B petitions during the filing period, which began April 1 and ended April 7.  This is slightly higher than the number of filings received last year (233,000).

USCIS conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit.

USCIS will issue Receipt Notices (Form I-797C) for those petitions that were selected for adjudication in the random lottery process and reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016, per its previous announcement.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will also not be counted towards the congressionally mandated FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming.

If Fox Rothschild has prepared and file an H-1B petition on your company’s behalf, we will automatically notify you upon our receipt of a Receipt Notice confirming selection in the random lottery process or a returned petition, confirming rejection/not selected.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

America’s traditional view on immigration has been: “Give me your tired, your poor, your huddled masses yearning to breathe free.” As we head into the fall presidential elections, we’re now hearing such promises as: “I will stop illegal immigration, triple border security and put in the surveillance and biometric tracking to secure the border.” Not to mention the beautiful wall.

Immigration is again dead center in the political crosshairs. The thrust of the discussion is border security and illegal immigration rather than legal immigration. That’s unfortunate.

Security and illegal immigration are important issues, of course, but our broken legal immigration system is probably more harmful to our nation.

I just got off the phone with a Pittsburgh-based entrepreneur whose high-tech start up is starved for workers. He has plowed his personal funds and investors’ capital into his business, which provides unique online learning opportunities and services for disabled children. While investors project that this company could achieve significant profits and educational advances, it needs highly specialized talent to get there.

The entrepreneur has identified two individuals whose specific expertise is desperately needed now to get the technology and the firm off the ground. The problem is that they are not U.S. workers. They are not tired or poor or part of the huddled masses; they are highly credentialed research scientists with European doctoral degrees. They need employment authorization, which comes in the form of a non-immigrant status, the most popular of which is the H-1B visa. But without proper authorization, they can’t work, so neither can the start-up.

While the H-1B visa is popular, it’s impractical because getting one is unpredictable. There are only a limited number available in any given year. Due to high demand by employers in recent years, H-1B status has been awarded only through a lottery each April — forcing companies to depend on luck in making business decisions.

Each fiscal year, the U.S. Citizenship and Immigration Service grants up to 85,000 “cap subject” H-1B visas. Subject to the cap are new applications by most for-profit employers. The cap allows 20,000 H-1Bs for people with qualifying master’s or higher degrees, 1,400 for Chileans, 5,400 for Singaporeans and 58,200 for all other eligible petitioners. Last year, more than 240,000 applications were filed for 85,000 visas.

H-1B petitions are generally filed in the first five business days of April. After that, the cap-subject visas are gone until the next year. The applications are for employment to begin Oct. 1, the beginning of the federal fiscal year. So, if an employer is unlucky in the lottery in April, he or she must wait another year to try again.

The largest users of the H-1B visa are the huge information-technology staffing firms, each of which file hundreds or thousands of applications for consultants to be employed by American businesses. Their lottery chances per application are no different than those of the start-up entrepreneur, but their business model focuses on providing as many foreign consultants to serve as many U.S. businesses as they can.  In contrast, many start-ups are trying to hire one or two workers with specialized skills not otherwise available and without whom the business is in jeopardy.

To qualify for H-1B status, a potential employee must have an offer of employment (not self-employment) to perform work that is usually performed by a person with at least a bachelor’s-level of education and who is otherwise qualified for the position. If a license is required, for example, the alien must have the license. There are special rules for physicians.

A potential U.S. employer must offer at least the prevailing wage, as determined by the U.S. Department of Labor and have the capital to pay it. The employer must post a notice of the hiring and attest that working conditions for the visa holder will not adversely affect other workers similarly situated, among other things.

Then there are the filing costs. Even if there were no legal fees, an employer must pay a $325 filing fee, a $500 anti-fraud fee and a $1,500 training fee. The training fee is $750 for employers of fewer than 25 employees. If the employer loses the lottery, it gets its filing fees back, but no employee.

There are more details involved in obtaining H-1Bs and other work-authorized visas. One H-1B strategy is to seek employment with a nonprofit institution of education or an affiliated employer that is cap exempt.

There has been some high profile H-1B abuse reported by both employers and employees. There has been controversy over whether the practices of some H-1B employers or their customers negatively impact wages and working conditions of American workers. But this is truly the exception.

As for the Pittsburgh-based entrepreneur, we had a difficult conversation. I explained the lottery.

“Why can’t there be enough H-1B visas to keep up with the need?” he asked. “The law hasn’t changed this century; it’s 2016 and our company’s future depends on a lottery — that’s crazy!”

But that’s the law. We discussed having his potential employees work remotely and other unattractive alternatives. For now, we are preparing the applications and crossing our fingers.

It is clear that the supply of H-1B visas does not meet the demand required by our economy. The H-1B is for educated, typically energetic individuals yearning to contribute to America. The law should reflect this reality by periodically adjusting the H-1B cap to meet demand and the economy’s needs, while still protecting U.S. workers.

For a decade or more, our elected officials have considered fixing this and other parts of our broken legal immigration system. If not now, when?

 

Originally published in the Pittsburgh Post Gazette on March 27, 2016