H-1B Cap

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Cap-subject US employers and their prospective employees alike have been waiting on edge to find out whether the FY2020 H-1B Cap Season would proceed as before or whether US Citizenship and Immigration Service’s (USCIS’s) recently proposed significant changes would be implemented to take effect before April 2019.  The result:  the Registration requirement will not take effect in April 2019, but the lottery will be held with the selection process reversed 

What does this mean?  In effect and as anticipated, US employers should proceed as before to have their H-1B cap cases analyzed, prepared and filed during the first week of April. For FY2020, cap-subject employers will not be required to electronically register their intended H-1B petitions in the lottery. In order to test and refine the system, USCIS decided to suspend the electronic registration requirement for this fiscal year.  Before implementing the electronic registration requirement in the future, an announcement will appear in the Federal Register to notify the public.

There will, however, be an important change this cap season.  That is, cap-subject petitions will first be chosen from the regular cap of 65,000 and only then will the 20,000 advanced degree exemption petitions be selected.  USCIS believes that reversing the selection process will result in a significantly higher number (16% or 5,340 workers) of petitions being chosen on behalf of beneficiaries who possess a master’s or higher degree from a U.S. higher education institution.  USCIS states reversing the selection order is in support of the President’s April 18, 2017 Buy American and Hire American Executive Order which directed the Agency to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”  Unfortunately, the Rule change doesn’t seem to consider the potentially negative impact on US employers who rely on professionals who possess less than a master’s degree nor employers whose workers are offered an appropriate wage for their profession, but are not the most highly paid overall.

When the electronic registration requirement is implemented, cap-subject US employers who want to file H-1B petitions, including those eligible for the advanced degree exemption, will have to electronically register with USCIS during a specifically designated registration period.  Notice of the electronic registration period is to be provided at least 30 days in advance to the start date.  USCIS will then select from the electronic registrations to determine which employers may proceed to file their H-1B petitions.  For more on this topic, please see my blog post H-1B Cap Season: Important Proposed Changes dated December 4th on Fox Rothschild’s Immigration View blog.

As in prior years, USCIS will post H-1B cap information on its website at www.uscis.gov in advance of the time for filing cap-subject H-1B petitions.

On November 18, 2016, US Department of Homeland Security (DHS) published a final rule to “improve aspects of certain employment-based nonimmigrant and immigrant visa programs.” This final rule also “amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.” The final rule will take effect on January 17, 2017. We will provide more in depth analysis and information in future posts and today we’ll provide an overview of this comprehensive rule.

First, the final rule clarifies and improve policies and practices related to the following areas:

  • H-1B extensions of stay under AC21. The final rule addresses the ability of H-1B nonimmigrant workers who are being sponsored for LPR status (and their dependents in H-4 nonimmigrant status) to extend their nonimmigrant stay beyond the otherwise applicable 6-year limit pursuant to AC21.
  • INA 204(j) portability. The final rule addresses the ability of certain workers who have pending applications for adjustment of status to change employers or jobs without endangering the approved Form I-140 petitions filed on their behalf.
  • H-1B portability. The final rule addresses the ability of H-1B nonimmigrant workers to change jobs or employers, including: (1) Beginning employment with new H-1B employers upon the filing of non-frivolous petitions for new H-1B employment (“H-1B portability petition”); and (2) allowing H-1B employers to file successive H-1B portability petitions (often referred to as “bridge petitions”) and clarifying how these petitions affect lawful status and work authorization.
  • Counting against the H-1B annual cap. The final rule clarifies the way in which H-1B nonimmigrant workers are counted against the annual H-1B numerical cap, including: (1) The method for calculating when these workers may access so-called remainder time (i.e., time when they were physically outside the United States), thus allowing them to use their full period of H-1B admission; and (2) the method for determining which H-1B nonimmigrant workers are “cap-exempt” as a result of previously being counted against the cap.
  • H-1B cap exemptions. The final rule clarifies and improves the method for determining which H-1B nonimmigrant workers are exempt from the H-1B numerical cap due to their employment at an institution of higher education, a nonprofit entity related to or affiliated with such an institution, or a governmental or nonprofit research organization, including a revision to the definition of the term “related or affiliated nonprofit entity.”
  • Protections for H-1B whistleblowers. The final rule addresses the ability of H-1B nonimmigrant workers who are disclosing information in aid of, or otherwise participating in, investigations regarding alleged violations of Labor Condition Application (LCA) obligations in the H-1B program to provide documentary evidence to USCIS to demonstrate that their resulting failure to maintain H-1B status was due to “extraordinary circumstances.”
  • Form I-140 petition validity. The final rule clarifies the circumstances under which an approved Immigrant Petition for Alien Worker (Form I-140 petition) remains valid, even after the petitioner withdraws the petition or the petitioner’s business terminates, including for purposes of status extension applications filed on behalf of the beneficiary, job portability of H-1B nonimmigrants, and job portability under section 204(j) of the Immigration and Nationality Act (INA), 8 U.S.C. 1154(j).

Second, the final rule made the changes consistent with the goals of AC 21 and ACWIA to further provide stability and flexibility in certain immigrant visa and nonimmigrant visa categories in the following areas:

  • Establishment of priority dates. To enhance clarity for the regulated community, the final rule provides that a priority date is generally established based upon the filing of certain applications or petitions. The new regulatory language is consistent with existing DHS practice in establishing priority dates for other Form I-140 petitions that do not require permanent labor certifications (labor certifications)—such as petitions filed under the employment-based first preference immigrant visa (EB-1) category.
  • Retention of priority dates. To enhance job portability for workers with approved Form I-140 petitions, the final rule explains the circumstances under which workers may retain priority dates and effectively transfer those dates to new and subsequently approved Form I-140 petitions. Priority date retention will generally be available as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. This provision improves the ability of certain workers to accept promotions, change employers, or pursue other employment opportunities without fear of losing their place in line for immigrant visas.
  • Retention of employment-based immigrant visa petitions. To enhance job portability for certain workers with approved Form I-140 petitions in the EB-1, second preference (EB-2), and third preference (EB-3) categories, but who are unable to obtain LPR status due to immigrant visa backlogs, the final rule provides that Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business.
  • Eligibility for employment authorization in compelling circumstances. To enhance stability and job flexibility for certain high-skilled nonimmigrant workers in the United States with approved Form I-140 petitions who cannot obtain an immigrant visa due to statutory limits on the number of immigrant visas that may be issued, the final rule allows certain beneficiaries in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization if: 1) They are the principal beneficiaries of an approved Form I-140 petition; 2) An immigration visa is not authorized for issuance for their priority date and; 3) they can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion. This employment authorization may only be renewed in limited circumstances and only in one year increments.
  • 10-day nonimmigrant grace periods. To promote stability and flexibility for certain high-skilled nonimmigrant workers, the final rule provides two grace periods of up to 10 days, consistent with those already available to individuals in some nonimmigrant classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications.
    • The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, which provides nonimmigrants in the above classifications a reasonable amount of time to enter the United States and prepare to begin employment in the country.
    • The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time for such nonimmigrants to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
  • 60-day nonimmigrant grace periods. To further enhance job portability, the final rule establishes a grace period of up to 60 consecutive days during each authorized validity period for individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. This grace period allows high-skilled workers in these classifications, including those whose employment ceases prior to the end of the petition validity period, to more readily pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications or employment in the same classification with a new employer. The grace period also allows U.S. employers to more easily facilitate changes in employment for existing or newly recruited nonimmigrant workers.
  • H-1B licensing. To provide clarity and certainty to the regulated community, the final regulations codify current DHS policy regarding exceptions to the requirement that makes the approval of an H-1B petition contingent upon the beneficiary’s licensure where licensure is required to fully perform the duties of the relevant specialty occupation. The final rule generally allows for the temporary approval of an H-1B petition for an otherwise eligible unlicensed worker, if the petitioner can demonstrate that the worker is unable for certain technical reasons to obtain the required license before obtaining H-1B status. The final rule also clarifies the types of evidence that would need to be submitted to support approval of an H-1B petition on behalf of an unlicensed worker who will work in a state that allows the individual to be employed in the relevant occupation under the supervision of licensed senior or supervisory personnel.

Last, this final rule also automatically extends the employment authorization and validity of existing employment authorization documents (EADs) issued to certain employment-eligible individuals for up to 180 days from the date of expiration, as long as: (1) A renewal application is filed based on the same employment authorization category as the previously issued EAD (or the renewal application is for an individual approved for Temporary Protected Status (TPS) whose EAD was issued under 8 CFR 274a.12(c)(19)); (2) the renewal application is timely filed prior to the expiration of the EAD (or, in accordance with an applicable Federal Register notice regarding procedures for renewing TPS-related employment documentation) and remains pending; and (3) the individual’s eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the underlying eligibility is not a prerequisite to the extension of employment authorization. Additionally, DHS eliminates the regulatory provisions that require adjudication of the Application for Employment Authorization (Form I-765 or EAD application) within 90 days of filing and that authorize interim EADs in cases where such adjudications are not conducted within the 90-day timeframe. These changes provide enhanced stability and certainty to employment-authorized individuals and their employers while reducing opportunities for fraud and protecting the security related processes undertaken for each EAD application.

A copy of the final rule can be found here.

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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.

Moving quickly along, the US Citizenship and Immigration Services (USCIS) informed the public that it completed data entry of all “winning” fiscal year 2017 (FY2017) H-1B cap-subject petitions (i.e., petitions that were selected in the computer-generated random process).  The announcement was made on May 2, 2016.  Considering that approximately 236,000 H-1B cap-subject petitions were received by USCIS in early April, it is quite a feat that the Immigration Service conducted the lottery and completed data entry on the selected petitions so fast.

Due to volume and to balance the workload, USCIS stated that it will be transferring some of the selected petitions from the Vermont Service Center (VSC) to the California Service Center (CSC).  Employers whose petitions are transferred will be notified via mail and should communicate with the indicated Service Center going forward, including for such things as upgrading to premium processing.

USCIS will return the “unselected” cap-subject H-1B petitions to employers, but could not provide a time frame for this due to the large number of petitions for which there were no available H-1B numbers.  USCIS stated that it will issue an announcement after all of the unselected petitions are sent for return.

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Catherine Wadhwani is a Partner in Fox Rothschild LLP’s Immigration Practice Group.  She may be reached at (412) 394-5540 or cwadhwani@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.

This just in…the U.S. Citizenship and Immigration Services (USCIS) issued a news release on Friday, April 22nd stating that the premium processing clock will start on Thursday, May 12, 2016. In other words, on May 12, 2016, USCIS will begin premium processing for cap-subject H-1B petitions.

Readers may recall that an H-1B petitioner may opt to pay an extra filing fee of $1,225.00 in exchange for premium or 15 calendar-day processing of an H-1B petition. Premium processing may be requested along with the filing of the initial petition or if the employer has a receipt notice, it may “upgrade” an already-pending H-1B petition to premium processing by filing a separate request.

Premium processing doesn’t guarantee a decision within 15 days. Rather, it means that action will be taken on a case within 15 days. That action may be a decision or it may be a request for evidence if the adjudicator finds something lacking in the petition. If a request for evidence (RFE) is issued, then from the date when USCIS receives the reply, another 15-day processing period will begin.

Normally, the 15 calendar-day processing period begins when a petition is received. Due to USCIS’s receipt of approximately 236,000 H-1B petitions during the first 5 or so days of H-1B cap season, USCIS delayed the start of the 15-day period.

As stated by USCIS in its release:

For H-1B petitions that are not subject to the cap and for any other visa classification, the 15-day processing period for premium processing service begins on the date that USCIS receives the request. However, for cap-subject H-1B petitions, including advanced degree exemption petitions, the 15-day processing period set by 8 CFR 103.7(e)(2) will begin on May 12, 2016, regardless of the date on the Form I-797 receipt notice, which indicates the date that the premium processing fee is received.

Those who requested premium processing will likely receive decisions by Friday, May 27th or so.

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Catherine Wadhwani is a Partner in Fox Rothschild LLP’s Immigration Practice Group.  She may be reached at (412) 394-5540 or cwadhwani@foxrothschild.com.

Robert S. Whitehill is a Partner and the Chair of Fox Rothschild LLP’s Immigration Practice Group.  He may be reached at (412) 394-5595 or rwhitehill@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.

As anticipated, the number of cap-subject H-1B petitions filed by U.S. employers exceeded the 65,000 general cap and the 20,000 master’s degree exemption for fiscal year 2017 (FY2017).

Yesterday, April 7, 2016, U.S. Citizenship and Immigration Services (USCIS or the Immigration Service) announced that the FY 2017 H-1B cap had been reached and that it had also received more than 20,000 petitions under the master’s or higher degree exemption.

At this point the Immigration Service will turn its attention to initial intake on the H-1B petitions that it received before the cap was reached.  Due to the high volume of petitions received, USCIS stated that it cannot yet say when it will implement use of its computer-generated H-1B Lottery process to determine which petitions will be processed.

As in prior years, petitions filed under the advanced degree exemption will be selected first.  Thereafter, presuming that there are in excess of 20,000 advanced degree petitions, the remaining advanced degree petitions will be added into the 65,000 general cap for consideration.

Petitions that are not selected and are not duplicate filings will be rejected and returned (with unused filing fees) to the petitioner.

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Catherine Wadhwani is a partner in Fox Rothschild LLP’s Immigration Practice Group.  You can reach Catherine at (412) 394-5540 or cwadhwani@foxrothschild.com.

 

As you likely know, April 1st was the first day when cap-subject H-1B petitions could be accepted for Fiscal Year 2017.  Now that the filings have started, here is a quick summary of some key information provided by the U.S. Citizenship and Immigration Services (USCIS or Immigration Services) in a March 16, 2016 release captioned, “USCIS Will Accept H-1B Petitions for Fiscal Year 2017 Beginning April 1, 2016”:

  • The congressionally mandated H-1B cap remains at 65,000 for FY 2017 along with the cap exemption for the first 20,000 petitions received for those with a U.S. master’s degree or higher (the latter being commonly referred to as the “Master’s Cap”).
  • It is again expected that USCIS will receive more than 65,000 petitions during the first 5 business days of April 2016.
  • USCIS will monitor the number of petitions received and let public know when the H-1B cap has been reached.
  • The H-1B Lottery system (computer-generated lottery system to randomly select the number of petitions required to meet the cap) will again be used if as expected, during the first 5 business days of April, USCIS receives more cap-subject H-1B petitions than there are numbers available.
  • If your petition isn’t selected in the Lottery or is received after the cap is closed, USCIS will reject it.
  • An H-1B petition is “accepted” only on the date when USCIS receives a properly filed petition with the appropriate fees.
  • Premium (15-day) Processing of cap-subject H-1B petitions is expected to be delayed, but begin no later than May 16, 2016.  This is to allow personnel time to enter data on the massive number of petitions that are expected during the first 5 business days of April.
  • USCIS provided special instruction for employers whose H-1B workers will work in different locations as follows:  “H-1B petitioners are reminded that when the temporary employment or training will be in different locations, the state where your company or organization’s primary office is located will determine where you should send your Form I-129 package, regardless of where in the United States the various worksites are located. Please ensure that when temporary employment or training will be in different locations, the address on page 1, part 1 of Form I-129 is for your organization’s primary office. Please note that when listing a “home office” as a work site location on Part 5, question 3, USCIS will consider this a separate and distinct work site location.”

Let the data entry begin…

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Catherine Wadhwani is a Partner in Fox Rothschild LLP’s Immigration Practice Group.  Catherine is situated in Fox Rothschild’s Pittsburgh, Pennsylvania office though she practices throughout the United States and at Consulates worldwide.  You can reach Catherine at (412) 394-5540 or cwadhwani@foxrothschild.com.

 

On December 22, 2015, DHS filed a motion under Federal Rule of Civil Procedure (FRCP) 60(b)(6) requesting that the U.S. District Court for the District of Columbia extend the stay of vacatur of the 2008 STEM OPT interim final rule for 90 days, in order to give the government additional time to analyze the more than 43,000 comments that were received in response to the agency’s October 19, 2015, Notice of Proposed Rulemaking. In this Leadership Blog post, AILA President-Elect William Stock outlines the government’s options for delaying the February 12, 2016, deadline, and explains the upshot of this legal maneuvering.

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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.

Since 2008, DHS has permitted F-1 students whose study was in a STEM field and whose employer is an E-Verify participant to have an additional 17-month period of OPT (Optional Practical Training).  Thousands of students and E-Verify employers have benefited from this extended period of employment authorization.  The work of these students has resulted in a challenge to STEM OPT by tech workers; specifically a suit in the U.S. District Court for the District of Columbia, Washington Alliance of Technology Workers v. U.S. Department of Homeland Security.

On August 12, 2015, the Judge before whom the case is pending VACATED the STEM OPT Extension program as its creation failed to comply with the notice and comment requirements of the Administrative Procedures Act (APA).  The court recognized the serious disruption that would result from the immediate implementation of her finding, so stayed the order for 6 months, during which time DHS could comply with the requirements of the APA.

The litigation continues and hopefully, STEM OPT will be able to continue uninterrupted beyond February 12, 2016.