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.

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.

The U.S. Citizenship and Immigration Services (USCIS) announced that on April 7th it received more than enough H-1B petitions to reach both the “regular” cap of 65,000 visas and the advanced-degree cap of 20,000 for fiscal year 2015 (FY 2015).

USCIS reported that it received about 172,500 FY 2015 cap-subject H-1B petitions.  So, what are the odds that your petition will receive a number under the FY 2015 H-1B cap?  Simple math shows that your chances are about 50/50.  The odds would be slightly better if your petition was for an advanced-degree professional because advanced-degree cap petitions which weren’t selected to count against the 20,000 advance-degree cap were included in the selection process for the regular cap.  In reality, the odds could be better or worse.  Without knowing how many of the 172,500 petitions were advanced-degree cap cases, the calculations can’t be refined.  We do know that after 20,000 advanced-degree petitions were counted, there were approximately 152,500 cap-subject H-1B petitions remaining for only 65,000 spots.  This means that about 43% of those remaining petitions would have been chosen for processing. 

The computer-generated random selection process (aka lottery) has been completed.  Electronic receipts are being received for premium processing cap cases. Presumably paper receipts for non-premium processing cap cases will begin to arrive in next week’s mail. 

USCIS stated that it will reject and return (with the unused filing fees) cap-subject petitions which were not randomly selected, that is, unless a petition is found to be a duplicate filing.

The wait should be over soon.

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

Your H-1B petition is now in the hands of the US Citizenship and Immigration Service (USCIS).  We have confirmation that your petition was delivered and you breathe a sigh of relief.  But what should you expect now that your petition is at the Service Center? When will you know whether your petition will receive a number under the FY 2015 cap?

Initially, USCIS will use the information from the H-1B Data Collection and Filing Fee Exemption Supplement to determine which petitions should be counted against the “regular” (bachelor’s or equivalent) cap and which should be counted toward the master’s or higher degree cap.  For FY 2015, there are 58,200 H-1B spots (65,000 – 6,800 spots set aside for Chile and Singapore) in the regular cap and 20,000 spots in the master’s+ cap.  When the 20,000 master’s+ cap limit is reached, the additional master’s+ cap cases will be grouped in with the regular cap cases. 

 USCIS has a page on its website to provide periodic updates regarding the number of cases received under each of the caps.

 When can you except a decision on your H-1B cap petition?

 If premium processing was requested…

 Premium processing is available for an H-1B petition.  A premium processing request requires an additional government filing fee, normally in exchange for processing (i.e., rendering of a decision or a request for additional evidence) of the H-1B petition within 15 days from the date of receipt by USCIS.  Due to the anticipated high volume of cap-subject H-1B petitions during the first week of April, USCIS has “temporarily adjusted its current premium processing practice” and is allowing itself until April 28th to begin premium processing of H-1B cap cases.  If premium processing begins on April 28th, decisions should begin to issue no later than May 12th.

USCIS took the same approach last fiscal year with a delayed start to the premium processing clock for H-1B cap cases.  This is a reasonable accommodation. The delayed premium processing start date will provide USCIS with time to accept the high volume of filings, check for correct filing fees, group and count the cases against the regular and master’s+ caps, conduct the lottery to choose petitions that will receive one of FY 2015 H-1B cap numbers, and prepare the selected petitions for processing.

 Note that USCIS has stated that it will continue to honor the 15-day processing clock from the date of H-1B petition receipt for non-cap H-1B cases, as well as for other types of cases that are eligible for premium processing.

 If premium processing was not requested….

While the “normal” processing time for an H-1B petition has recently been reported at about 2 months by each of the two Service Centers , due to the high volume of H-1B cap cases, as with last year, decisions will likely continue to be rendered well after the standard 2-month processing time.

 If premium processing was not requested, but I want to request it now….

If you didn’t request premium processing, but are reconsidering your decision, we can file paperwork to request an upgrade as soon as we have the I-797 receipt notice for your H-1B petition.  This can be done at any time and may be necessary, for example, in cases where a driver’s license extension is needed.

 In the meantime, we will have to await updates from USCIS.  At this point, mid-May seems very far away.

 

H-1B visa cap season is rapidly approaching as the deadline to file for Fiscal Year 2015 begins April 1, 2014 and ends April 7, 2014 (the first five business days of April).  We strongly encourage Employers to begin preparing for the H-1B visa process as soon as possible and to not wait till the last minute.  The limit on H-1B cap subject petitions is 65,000, with an additional 20,000 visas available for individuals who have earned a U.S. Master’s degree or higher from an accredited U.S. educational institution.

Timing is everything!  In order for the petition to be filed in within the filing window, in order to be considered in the random lottery process that is again expected to occur this year, a significant amount of information and documentation needs to be gathered, synthesized and presented in an approvable set of forms and supporting statement.  This year, we expect that even more people will be applying for H-1B visas than last year.  Last year there were approximately 132,000 petitions submitted for the available 65,000 visas.  Accordingly, it is anticipated that the cap will again be reached in the first week of April and USCIS will run its random selection process to choose those petitions that will be accepted for processing (i.e. actually considered for an H-1B visa).  As any of you familiar with the H-1B visa process, selection in the random lottery process does not guarantee an H-1B visa; it only guarantees that the petition will be judged on its merits and, if approvable, then an H-1B visa will be granted.  Rejection from the random lottery process, however, is a firm/non appealable denial – no H-1B visa is possible for those petitions.

If you are an employer seeking to sponsor a foreign national for an H-1B visa, such as a student currently working pursuant to an optional practical training employment authorization which is set to expire this coming spring or summer, then you should begin the process of preparing for that H-1B petition sooner rather than later.  If your H-1B petition is not properly received by USCIS within the first five business days of April 2014 so that it may be considered in the random selection process, then you will not be able to secure an H-1B visa for the coming year.  Please recall that irrespective of when the petition is filed or if/when approved, the employment start date of the visa will not be earlier than October 1, 2014.  If you are lucky enough to be filing a petition for a student who currently has optional practical training employment authorization which will expire this spring or summer, then so long as the H-1B petition for that person is pending or approved, then that person’s work authorization is automatically extended until Sept. 30, 2014.  If the petition is rejected (random) or otherwise denied, this automatic extension of employment authorization immediately ceases.

When the Fiscal Year 2015 H-1B cap has been reached, employers will be unable to seek H-1B Cap-subject visas again until April 2015 (for start dates of Oct. 1, 2015).

Please contact Alka Bahal, Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP, for assistance with your H-1B visa processing needs.

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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, last Friday (April 5, 2013), USCIS received enough cap-subject H-1B petitions to meet or exceed the available number of H-1B spots for Fiscal Year 2014 (FY 2014).  Full details can be found on USCIS’s website.

H-1B petitioners and beneficiaries will now anxiously await news of whether or not their filings are granted one of the precious H-1B spots. 

To begin the lottery process (i.e., computer-generated random selection process), for all H-1B petitions received by the Immigration Services on or before April 5, 2013, USCIS has stated that it will first conduct the selection process for Master Cap (i.e., advanced degree) petitions. 

When that step is completed, remaining Master Cap petitions will be included in the lottery for Regular H-1B Cap numbers. 

USCIS has not yet announced the date on which the H-1B lottery will occur, but an announcement is expected soon along with information regarding the number of filings received, and presumably including information regarding H-1B numbers set aside pursuant to treaty for citizens of Chile and Singapore.

As a reminder, the 15-day premium processing period is not set to begin for cap-subject H-1B petitions until Monday, April 15, 2013. 

Of course, H-1B cap-exempt petitions continue to be accepted and processed. 

For those who do not receive an FY 2014 H-1B spot or are not exempt from the H-1B cap, there may be alternatives.  It’s best to be prepared by consulting with qualified immigration counsel regarding possible options.

The author can be reached at cwadhwani@foxrothschild.com.

On April 20, U.S. Citizenship and Immigration Service (USCIS) reported that it has received approximately 25,000 H-1B petitions towards the 65,000 cap with approximately 10,600 petitions toward the 20,000 cap exemption for individuals with advanced degrees. 

This means that more than one half of the available regular cap-subject H-1B visas and more than one half of those set aside for U.S. Master’s degree holders have already been allocated. This is a clear indication that the H-1B visa cap will be reached much sooner this year than in recent years.

Employers who wish to employ any professional or specialty occupation employees during the next year should contact legal counsel to file H-1 cap-subject petitions as soon as possible or risk not being able to retain/employee such individuals.

 

As of last Friday, April 20th, the U.S. Citizenship and Immigration Service (USCIS) announced that it had counted 25,000 H-1B petitions toward the 65,000 cap, and 10,900 H-1B petitions toward the 20,000 advanced degree cap.  See http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=4b7cdd1d5fd37210VgnVCM100000082ca60aRCRD&vgnextchannel=73566811264a3210VgnVCM100000b92ca60aRCRD.  This was also reported by AILA at http://www.aila.org/content/default.aspx?bc=26284|39204.

This is a significant increase in comparison to last year at about the same time.  So far, this year’s count toward the 65,000 cap is more than triple last year’s, while master cap filings are at nearly twice last year’s count.  Specifically, last year’s count from April 22, 2011, was at approximately 8,000 H-1B petitions toward the 65,000 cap and 5,900 toward the advanced degree cap.

Speculation is that the dramatic increase results at least in part from some employers deciding to err on the side of caution by filing cap-subject petitions (rather than cap-exempt petitions) in situations where it’s unclear whether they qualify for a cap exemption.  Of course, an employer/petitioner should seek the counsel of their immigration attorney in making the cap-exemption determination so that petitions which are clearly cap-exempt are not counted against the annual limit. 

With the H-1B numbers are being used much more quickly than last year, it’s best to file cap-subject H-1B petitions at the earliest possible time in order to maximize the likelihood of approval under this year’s cap.