H-1B Temporary Workers

On January 25, 2019, USCIS announced that it would resume premium processing for all fiscal year (FY) 2019 H-1B cap petitions on Monday, January 28, 2019.  There is some confusion among employees and employers thinking that this applies to the upcoming H-1B season.   Please note that the next H-1B cap season is fiscal year 2020, with an initial filing date of 4/1/2019.  USCIS is just now allowing employers and applicants to premium process fiscal year 2019 cases that were to start October 1, 2018.

Premium processing requests that USCIS process a case within 15 calendar days.  Those Petitioners who wish to premium process, file a Form I-907, Request for Premium Processing Service, with a $1,410 filing fee.  If you receive a request for evidence (RFE) for a pending FY 2019 cap petition, you can include a request for premium processing along with the RFE response.  If your FY 2019 case is still outstanding, you can now request premium processing to obtain an answer.   Filing a premium processing request will prompt USCIS to adjudicate a backlogged FY 2019 case before the start of the next H-1B filing season.

USCIS is likely to suspend the premium processing for FY 2020 H-1B cap petitions.  Cap-exempt or non-cap subject H-1B petitions remain eligible for premium processing.  For more information, please continue to observe this blog.

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 October 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that it will begin accepting premium processing requests for all categories of H-1B petitions.  In March 2017, USCIS had suspended the premium processing program for H-1B petitions, citing the need to reduce its overwhelming processing backlog. Over the past several months, USCIS phased in premium processing for certain limited categories of H-1B petitions.  USCIS’s latest announcement allows employers to file any type of H-1B petition, including those seeking extension of stay or change of status, under Premium Processing and also allows employers to convert any such pending petitions to premium processing.

Under USCIS’ premium processing service, petitions are adjudicated within a 15 day calendar days for an additional government filing fee of $1,225 instead of the current regular processing time of 4-5 months.

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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.

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.

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 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.

The US Citizenship and Immigration Service (USCIS) has updated its May 19, 2015 alert announcing temporary suspension of premium processing for certain H-1B petitions.  http://www.uscis.gov/news/alerts/uscis-temporarily-suspends-premium-processing-extension-stay-h-1b-petitions

Here are the highlights:

  • May 26, 2015 – July 27, 2015*:  Premium processing is suspended for all H-1B extension of stay petitions with extremely limited exceptions for cases meeting the narrow expedite criteria.  See USCIS Expedite Criteria webpage.
  • During this suspension period, premium processing will still be honored for:
    • H-1B extension of stay petitions requesting premium processing prior to May 26, 2015 (but be aware that the announcement states:  “USCIS will refund the premium processing fee if:  A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and USCIS did not act on the case within the 15-calendar-day period.”)
    • Change of status H-1B petitions
    • Consular notification H-1B petitions
    • Consular notification H-1B petitions for those who have H-1B status
    • H-1B amendment petitions that do not also request an extension of stay
    • H-1B1 petitions (under the US-Chile and US-Singapore Free-Trade Agreements).

The temporary suspension is intended to enable USCIS to timely implement the Employment Authorization for Certain H-4 Spouses final rule, which became effective on May 26, 2015, and is anticipated to result in “an extremely high volume of Form I-765 applications”.

*USCIS has indicated that it will monitor workloads and if feasible, resume premium processing for H-1B extension petitions prior to July 27, 2015.

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Ms. Wadhwani is a partner in the Immigration Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

Last year at about this time, I published a blog post captioned, “FY 2015 H-1B Cap:  What are the Odds?” (https://immigrationview.foxrothschild.com/h-1b-temporary-workers/fy-2015-h-1b-cap-what-are-the-odds/).  According to my very basic calculations, I estimated that the odds of receiving one of the limited FY 2015 H-1B numbers was about 43% under the regular cap, with slightly better chances for those with a Master’s or higher degree.  Overall, if you didn’t deducted the 20,000 advanced degree petitions from the total, chances were about 50/50.

For FY 2016, the odds are worse.  This of course is due to an increased demand on the part of US employers.  Indeed, the US Citizenship and Immigration Service (USCIS) announced that it received “nearly 233,000 H-1B petitions” toward the FY 2016 cap.  That is 60,500 more than last year, and more than enough to fill an entire year’s regular (non-advanced degree) cap if you deduct the numbers set aside for Chile and Singapore.

Simple math shows that the overall odds of receiving a number in the FY 2016 H-1B cap are about 34%.  If you deduct the 20,000 advanced degree “winners” from the total 233,000 petitions, and re-calculate, the odds decrease to 27% for the remaining petitions which include both the unselected advanced degree petitions and the regular cap petitions.

USCIS completed its computer-generated random selection process (i.e., lottery) on April 13th.  The I-797 receipt notices are beginning to arrive.  Petitioning employers and potential H-1B workers anxiously await news of their fate.  That may sound dramatic, but the reality is that of the approximately 233,000 H-1B cap-subject petitions filed for FY 2016, about 154,800 petitions will be rejected and returned.  This is dramatic for the H-1B petitioning employers and prospective employees who are not winners in the lottery even though they presumably filed meritorious petitions.

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Ms. Wadhwani is a partner in the Immigration Practice Group at Fox Rothschild LLP.  She can be reached at cwadhwani@foxrothschild.com.

USCIS has announced that it received a record-breaking 233,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 13, 2014, USCIS completed its computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing. See USCIS’ Announcement here.

The agency 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 begin the process of issuing receipt notices for those petitions accepted for processing and returning the complete filings of those petitions rejected/not selected. Until the receipt notice or rejection package received by the attorney or petitioning employer, it is not possible to know whether any particular application has, in fact, been accepted for processing.  Given the volume of cases USCIS has to process, it is reasonable to expect that it will take at least several weeks to be fully completed/all packages or receipts to arrive at their destinations.

As previously announced by USCIS, it will begin the premium processing for H-1B cap cases no later than May 11, 2015. Employers and attorneys will still have to wait for some time before knowing if any particular case has been selected for processing.

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 2016 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.

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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 many are aware, the filing period for H-1B petitions subject to the fiscal year 2016 numerical cap begins in about two weeks, on April 1, 2015.  United States Citizenship and Immigration Services (USCIS) currently reports again this year that it anticipates receipt of more than the allotted quota of 65,000 cap-subject H-1B petitions (including more than 20,000 petitions filed on behalf of individuals with a U.S. master’s degree or higher). This means that the H-1B cap will most likely again be met in the first five business days of April.  In short, if you are looking for a shot at an H-1B visa this coming year, your properly completed, signed and supported petition must be received at USCIS between April 1 and April 7, 2015.

There are only a limited number of new H-1B visas available each year (65,000 total), and the next allotment becomes available when the federal government’s fiscal year begins on October 1, 2015. An employer may file an H-1B petition as early as six months in advance of the anticipated start date, which means that an employer may file an H-1B petition for a cap-subject worker as early as April 1, 2015.

Under the current law, if more than enough petitions are filed to reach the numerical limit (as expected), USCIS will include all petitions filed in the first five business days in the random selection process to choose those petitions that will be accepted for processing.  This means that the window for filing is anticipated to close on the fifth business day of April (April 7, 2015).  USCIS will then run a random selection process to choose those petitions that will be accepted for processing, rejecting those petitions not selected.  It will first conduct the selection process for the 20,000 allotted U.S. master’s/advance degreed petitions, and then will include any advanced degree petitions not selected in the second random selection process for the remainder to meet the 65,000 limit. Last year, USCIS received approximately 124,000 H-1B petitions during the first five business day of April.

H-1B petitions may be filed under the USCIS’ expedited processing service called “premium processing.” However, in anticipation of a high number of premium processing filings and in order to facilitate the prioritized intake of these petitions, USCIS has temporarily adjusted its current premium processing practice. Premium processing for H-1B cap subject petitions will begin no later than May 11, 2015 (instead of immediately upon filing).

Remember that irrespective of when an H-1B cap subject petition is filed, if/when the application is approved, the employment start date of the visa will not be earlier than October 1, 2015. In some circumstances, the filing of an H-1B cap subject petition can extend certain employees’ status and work authorization to enable them to bridge a common gap between when work authorizing documents issued to recent graduates expire in the spring or early summer until the effective date of the H-1B visa on October 1.

If you have an employee who requires an H-1B petition in order to remain employed, please contact Fox Rothschild immediately.  It MAY still be possible to prepare and file a petition before the window for filing closes, but this opportunity diminishes with each passing hour.

If Fox Rothschild is assisting you with the filing of an H-1B petition subject to the cap, we will automatically notify you upon the filing of the petition and upon its acceptance for processing (i.e., selection in the lottery) or rejection.

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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.