H-1B Visa Lottery Changes & The Return of Premium Processing

In follow up to last month’s announcement of proposed changes to the H-1B visa selection process by U.S. Citizenship & Immigration Services (USCIS), the Department of Homeland Security has finalized its rule reversing the order in which USCIS will select H-1B cap-subject petitions in the H-1B visa lottery. 

While the H-1B cap will remain at 85,000, this new regulation will reverse the lottery order in which USCIS selects H-1B petitions for adjudication, in order to increase the amount of H-1B visas awarded to foreign nationals with U.S. master’s degrees and higher.  Under the previous lottery system, USCIS would first conduct a lottery for 20,000 H-1B visas for individuals with a U.S. master’s degrees and higher (the “advanced degree cap”), and then those individuals with advanced degrees who were not selected in that lottery were added to the pool of 65,000 H-1B visas (the “regular cap”), for another chance to be selected with individuals who only have a bachelor’s degree.  In accordance with this new rule, USCIS will now conduct the regular cap lottery first and include all advanced degree holders.  Those with advanced degrees not selected in the“regular cap” will thereafter be placed in a second lottery (the “advanced degree cap”), if there are enough advanced degree holders to meet the advanced-degree lottery.

In accordance with the Trump administration’s previous announcements for employment-immigration reforms, USCIS believes this change to the lottery system will increase the chances of H-1B visas being awarded to individuals with U.S. master’s degrees and higher.   

While USCIS announced that this change to the H-1B visa selection process will be implemented for this year’s H-1B visa lottery, USCIS will be postponing its proposed mandatory online registration for U.S. employer’s filing H-1B petitions.  As such, employers and foreign nationals should be preparing their H-1B visa petitions NOW (as they have done in previous years) in order to timely have those petitions filed on April 1st.

Additionally, USCIS announced this week they have resumed “premium processing” for all H-1B visa petitions that remain pending from the April 2018 lottery.  USCIS had temporarily suspended premium processing for most H-1B petitions last year, but has removed the suspension, as of now, for only H-1B visa petitions that remain pending from the April 2018 lottery.  While premium processing is still currently unavailable for H-1B transfers, amendments, and extensions with different employers, we may see premium processing for these cases resume around February 19th.

Employers seeking to hire foreign national employees this year should assess their upcoming workforce needs and identify those who will require H-1B visa sponsorship NOW. These individuals may include:

·       New graduating foreign students in the U.S.

·       Overseas individuals seeking to start work in the U.S.

·       Foreign individuals in the U.S. already working under a different nonimmigrant status for a different employer and are seeking to change jobs

Failure to file your H-1B petition on April 1st may jeopardize your chance at securing an H-1B visa for your employee. After the 2019 H-1B visas are gone, employers will have to wait until April 1, 2020 to file H-1B petitions again, and foreign employees may lose their lawful status and authorization to work. The clock is ticking…don't delay!

If you have any questions about the H-1B visa process, contact me.

New H-1B Visa Lottery Process

U.S. Citizenship & Immigration Services  (USCIS) has announced a proposed rule that will dramatically shift how H-1B visa petitions are selected in its H-1B cap lottery selection system.  The proposed regulation would create a mandatory online preregistration system for employers to register each individual’s H-1B cap petition and reverse the order in which USCIS selects H-1B petitions under the H-1B cap and advanced degree exemptions.

Currently, the H-1B visa allows U.S. employers to temporarily employ foreign nationals with a bachelor’s degree or higher in occupations that require a theoretical and practical body of highly specialized knowledge.  Each year, on April 1st, USCIS makes 85,000 H-1B visas available.  If USCIS received more than 85,000 petitions, they institute a computer-generated lottery system to randomly select the petitions that will be adjudicated. 

Employer Pre-Registration System

Under this proposed rule, USCIS would create a mandatory online preregistration process whereby those employers who intend to file H-1B cap petitions would be required to submit an online registration for each potential H-1B beneficiary, during a designated registration period before April 1st.  USCIS would then conduct a lottery and select registrations to meet the H-1B visa cap.  Those registrations that are selected will be notified and given a 60-day window in which to file their H-1B visa petition on behalf of the foreign worker named in the original registration.  According to the proposal, an employer could potentially wait until they have been notified of selection before filing a Labor Condition Application and preparing the corresponding H-1B petition for the intended beneficiary.

The online registration would request information about the employer (i.e. company name, address, Federal Employer Identification Number, etc.), along with information about the intended H-1B worker (i.e. name, date of birth, citizenship, passport, and education credentials).  There will be no fee to register an H-1B worker, but employers would be limited to one registration per individual per year.

The preregistration period would begin at least 14 days before April 1st and last for at least two weeks.  USCIS would announce the dates for the preregistration period online at least 30 days before it starts.   

New Lottery Selection Process

While the H-1B cap will remain at 85,000, USCIS intends to reverse the lottery order in which it selects H-1B petitions for adjudication, to increase the amount of H-1B visas awarded to foreign nationals with U.S. master’s degrees and higher.  Currently, USCIS first conducts a lottery for 20,000 H-1B visas for individuals with a U.S. master’s degrees and higher (the “advanced degree cap”).  Those individuals with advanced degrees not selected in that lottery are added to the pool of 65,000 H-1B visas (the “regular cap”), for another chance to be selected with individuals who only have a bachelor’s degree.  Under the proposed rule, USCIS would conduct the regular cap lottery first and include all advanced degree holders.  Those with advanced degrees not selected in the regular cap would be placed in a second lottery, if there are enough advanced degree holders to meet the advanced-degree lottery.

In accordance with the Trump administration’s previous announcements for employment-immigration reforms, USCIS believes this change to the lottery system would increase the chances of H-1B visas to be awarded to individuals with U.S. master’s degrees and higher.   

Implementation

Currently, these are only proposed rule changes.  While USCIS has stated their intention to have these new rules in place before the April 1, 2019 H-1B visa season, the proposed regulations also would allow USCIS to temporarily suspend the registration process due to technical challenges with the registration process or online system.  In the meantime, employers and foreign nationals should submit their public comments on this proposal HERE, before January 2nd.

What Employers & Foreign Nationals Should Do Now

Regardless of whether USCIS will be able to implement these changes before the April 1st H-1B filing deadline, employers and foreign nationals should begin preparing H-1B petitions NOW for the possibility that they will need to submit their complete H-1B visa petitions on April 1st.   

For any questions on the H-1B visa process or these changes, please feel free to contact me.

New Immigration Policy to Deny Cases Without Issuing RFE or NOID

U.S. Citizenship and Immigration Services (USCIS) has released a new policy that gives immigration adjudicators discretion to deny any and all visa applications or petitions without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) in cases where initial evidence is missing or does not establish eligibility. This new guidance, which becomes effective September 11, 2018, replaces a prior policy which instructed adjudicators to request additional evidence in a case, unless there was no possible way that additional evidence could fix a deficiency in the case.

The intent of this guidance is to provide immigration officers with more discretion to deny a visa application without requesting further information first. This policy has even greater implications in light of USCIS’ other recent announcement instructing officers to initiate removal (deportation) proceedings if, upon denial of an application or petition an individual is unlawfully present in the United States. 

As USCIS continues to shift away from a focus on immigration benefits to a focus on immigration enforcement and stricter standards for approval of visa petitions, employers and foreign nationals should consider the following strategies to avoid consequences imposed by these new rules:

  • Take all precautions to ensure visa petitions and applications are filed with the requisite documentation and evidence. This includes overdocumenting how the employer and employee meet all of the visa eligibility requirements.
  • Applications to extend nonimmigrant visa status (including H-1B, L-1, O-1, and others) should be filed as early as possible (up to 6 months before expiration) to avoid any lapses in nonimmigrant status.
  • Employer’s should continue to extend the nonimmigrant status of their foreign national employees until their applications for lawful permanent residence are approved, in order to avoid situations where the employee is in unlawful presence and could be deported.
  • Employer’s should consider utilizing USCIS’s “premium processing” program when filing “change of employer” visa petitions to quickly obtain work authorization for a candidate and not have a candidate risk changing employers without an approval.

These new USCIS policies reinforce the importance of ensuring all visa petitions and applications include the required evidence to show the applicant meets the visa eligibility requirements. The chances of having a family or employment-based visa petition or application denied are significantly reduced when working with qualified immigration counsel to prepare a comprehensive application.

For more information or advice on how to navigate these or any other immigration policy changes, please don’t hesitate to contact me.

Winning The H-1B Visa Lottery

Starting April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for Fiscal Year 2019. As in years past, if USCIS receives more than the available 85,000 H-1B visas in the first few days of April, they will use a computer-generated random lottery to select the petitions they will process. Based on the number of petitions received in the first few days of April last year (over 199,000) and the previous year (over 236,000), combined with the current market demand for high-skilled labor and reports of possible changes to visa programs in the future, many our anticipating that USCIS will receive over 200,000 H-1B petitions in the first few days of this April. 

Accordingly, time is running out for employers to timely prepare their H-1B petitions for submission to play in this H-1B lottery on April 2nd. Generally, it takes at least 10-14 days to prepare and file an H-1B petition, due to the prerequisite filing requirements of the Labor Condition Application (LCA), which takes up to 7 business days to certify. Therefore, if you are responsible for your businesses' immigration planning and processing and you have already identified your H-1B candidates, please initiate the H-1B visa process in the next two weeks to ensure it is timely filed. 

In light of recent reports of proposed changes to the H-1B work visa program by the Trump administration, USCIS has confirmed that it intends for the H-1B filing process and procedures to remain the same as it has in previous years.  Nevertheless, as indicated by the massive increase of Requests for Evidence (RFE) and denials of H-1B petitions issued by USCIS over the past year, employers and foreign nationals should be prepared to evidence the following, in order to increase their chances of getting their visa petitions approved:

  1. Document the specific scope and educational requirements for the position to show that the position is one which requires a Bachelor’s degree as a minimum to enter the occupation.
  2. Review the prevailing wage rates for the occupation through the Department of Labor’s Wage Surveys to determine whether the wage level is appropriate for the professional position you are hiring for.
  3. Document the nexus between the foreign national’s degree and the occupation they will be hired for.

WATCH my conversation on how to overcome issues with H-1B RFEs

Needless to say, the H-1B visa petition can be a technical and cumbersome application to file.  Working with qualified counsel will help to ensure technical mistakes are avoided and that a comprehensive petition will have the best chance at winning in the H-1B visa lottery.  If you have any questions about the H-1B visa process, please don’t hesitate to contact me.

H-1B Visa Season Starts NOW

In light of recent reports of proposed changes to the H-1B work visa program by the Trump administration, U.S. Citizenship & Immigration Services (USCIS) has confirmed several important details about the upcoming H-1B visa filing season, which will commence on April 2, 2018. Most importantly, USCIS intends for the H-1B filing process and procedures to remain the same as it has in previous years. This is to say that there will be no "preregistration system" and if the petitions received by USCIS exceed the 85,000 numerical cap, a lottery will be used to select the petitions for processing. USCIS also hinted that they may impose a "short" suspension of "premium processing" for H-1B cap petitions (but not non-cap H-1B petitions), as they did last year.

Demand by U.S. employers for H-1B visas on behalf of “highly-skilled” foreign employees was, once again, at high levels last year and is expected to remain high this year. Because it is expected that the 85,000 available H-1B visas will be gone within the first week of April, U.S. businesses should file their H-1B visa petitions on April 2, 2018. Due to prerequisite filing steps which must be completed before the H-1B petition can be submitted to USCIS, however, employers should begin preparing their petitions now to ensure they are ready to submit on April 2nd.

Despite rumors of potential changes to the H-1B visa program, the H-1B filing process and procedures will remain the same as they did in previous years.  Therefore, employers should assess their upcoming workforce needs and identify whether any foreign national employees will require H-1B visa sponsorship. These individuals may include:

  • New graduating foreign students in the U.S.
  • Overseas individuals seeking to start work in the U.S.
  • Foreign individuals in the U.S. already working under a different nonimmigrant status for a different employer and are seeking to change jobs

Failure to file your H-1B petition on April 2nd may jeopardize your chance at securing an H-1B visa for your employee. After the 2018 H-1B visas are gone, employers will have to wait until April 1, 2019 to file H-1B petitions again, and foreign employees may lose their lawful status and authorization to work. The clock is ticking…don't delay!

If you have any questions about the H-1B visa process, contact me.

USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

USCIS has announced that starting April 3rd, 2017 premium processing for all H-1B petitions will be temporarily suspended. This suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners will not be able request premium processing for H-1B visa cases.

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017.  Meaning, this will apply to ALL petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.

All H-1B petitions filed with a request for premium processing will be rejected.

This temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on Form I-129.

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.

The reason for the temporary suspension will allow USCIS to reduce overall H-1B processing times. 

New Rules For Employment-based Immigrant & Nonimmigrant Visa Programs

The Department of Homeland Security (DHS) has published new regulations to provide greater flexibility for high-skilled foreign workers who have an approved employment-based immigrant visa petition, while they wait for a green card.  The intent of these new rules will better enable U.S. employers to sponsor and retain high-skilled foreign workers, increase the ability of such workers to seek promotions, accept lateral positions, change employers, or pursue other employment options.  

The highlights of this rule change, include:

  • Retention of Approved Immigration Visa (I-140) Petitions:  Immigrant petitions submitted by U.S. employers to request permanent employment on behalf of a foreign national (Form I-140) may no longer be automatically revoked based on a request by the employer to withdraw the petition.  Additionally, the immigrant petition will not be revoked if the the request to withdraw is based on the termination of the employer’s business 180 days after either the I-140’s approval or the filing of an I-485 application for adjustment of status.  While the I-140 would remain valid, the foreign national would need a new job offer or new petition in order to apply for a green card.
  • Nonimmigrant Visa Grace Periods:  A one-time grace period of up to 60 days whenever employment ends, will allow for greater job portability for nonimmigrant workers (especially H-1B, E-1, E-2, E-3, L-1, O-1 and TN visa holders).  During the grace period the nonimmigrant worker may apply for an extension of stay or change of status.  While the nonimmigrant will not be authorized for employment during the grace period, it will provide flexibility to allow for new employment in case of sudden termination.
  • Employment Authorization in Compelling Circumstances:  In compelling circumstances, DHS will allow certain individuals with an approved I-140 petition, who are unable to obtain an immigrant visa because of numerical limits, to apply for a one-year employment authorization document (EAD).  This new rule would only apply to individuals in E-3, H-1B, H-1B1, L-1 or O-1 status.  DHS has identified “compelling circumstances” as serious illness or disabilities, employer retaliation, other substantial harm to the applicant, or significant disruption to the employer.
  • Employment Authorization Document Processing:  Certain individuals may be granted automatic EAD extensions for up to 180 days, so long as they timely renew their EAD and it is based on the same employment authorization category as the existing EAD.  The extension is available only to certain foreign nationals, including adjustment of status applicants and individuals filing for renewal of Optional Practical Training (OPT) based on a degree in a Science, Technology, Engineering, or Math (STEM) field. This provision does not apply to H-4, L-2, or E nonimmigrant spouses seeking an EAD renewal.

The new regulation will become effective January 17, 2017, three days before Donald Trump takes office.  These regulations should remain in place, unless Congress acts to cancel them.  Please contact our office for further questions or clarification.

Deadline Approaching for STEM Graduates' OPT Extension Applications

The recently announced expansion of Optional Practical Training (OPT) work authorization for U.S. STEM (science, technology, engineering, and math) graduates will allow some students who already have 17 months of OPT work authorization to apply for an additional 7 months.  To qualify for this extension, applicants must apply by August 8, 2016 and within 60 days of the date their designated school official (DSO) enters the recommendation for their 24-month OPT extension into their SEVIS record.  Applicants must also:

  • Be currently participating in STEM OPT based on a 17-month extension;
  • Have at least 150 days of valid employment authorization remaining on their 17-month STEM OPT period on the date the new Form I-765, Application for Employment Authorization is filed; and
  • Have their DSO and employer comply with all the 24-month STEM OPT extension requirements

Please contact us if you have any questions regarding extending your OPT employment authorization.   

Demand For H-1B Visas This Year May Exceed 300,000

Starting April 1, 2016, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for Fiscal Year 2017 (FY2017).  As in years past, if USCIS receives more than the available 85,000 H-1B visas in the first few days of April, they will use a computer-generated random lottery to select the petitions they will process.  Based on the number of petitions received in the first few days of last year (over 233,000) and the market demand for high-skilled labor, our office anticipates USCIS receiving over 300,000 H-1B petitions in the first few days of April. 

Accordingly, time is running out for employersto timely prepare their H-1B petitions for submission on April 1st.  Generally, it takes at least 10-14 days to prepare and file an H-1B petition, due to the prerequisite filing requirements of the Labor Condition Application (LCA), which takes up to 7 business days to certify.  Therefore, if you are responsible for your businesses' immigration planning and processing and you have already identified your H-1B candidates, please initiate the H-1B visa process in the next two weeks to ensure it is timely filed.  

Possible Expansion of Program to Hire Foreign Students

The number of international students in the U.S. hit a record high in 2014, with more than 880,000 students.  The stakes are therefore high for international college students who are concerned about choosing their majors and finding jobs for after graduation.  

The Department of Homeland Security (DHS) is aware of this issue and has proposed a new regulation which would allow F-1 nonimmigrant student visa holders science, technology, engineering, or mathematics (STEM) degrees from U.S. universities to extend their initial 12 month optional practical training (OPT) period by 24 months.  The proposed rule would increase the current STEM OPT extension from 17 months to 24 months (for a total of up to 36 months).

Like the current STEM OPT extension regulation, the proposed rule would only allow STEM OPT extensions for students employed by employers enrolled in the U.S. Citizenship and Immigration Services (USCIS) E-Verify employment eligibility verification program.

Under the proposed rule, “cap-gap” relief will still be available so as to allow students to automatically extend their F-1 status and employment authorization until October 1st, if they timely file an H-1B petition.  Additionally, the proposed regulations seeks to clarify the STEM field to studies in mathematics, natural sciences (including physical sciences and biological/agriculture sciences), engineering or engineering technologies, and computer/information sciences and related fields, in order to address current STEM needs in the U.S. economy while balancing the potential for future changes.

There will be a 30-day comment period, which will end on November 18th, at which point DHS will be required to review and consider all comments prior to implementing the final regulation.  If approved, this new regulation would allow certain students already working under the STEM extension to request the additional time that would be allowed under the new rule.   U.S. employers and foreign STEM graduates should continue to monitor this situation as it continues to evolve.

Immigration Options for Foreign Students After Graduation

Thinking about remaining in the U.S. to work after your degree or have plans to one day return to the U.S. to work?  The following presentation has been presented to university students along with in-depth insight into how to qualify and meet the criteria for certain nonimmigrant visas.  If you have any questions about any of these visas or the application procedures, feel free to contact our office.