USCIS Completes the H-1B Cap Random Selection Process for FY2020

USCIS has confirmed that they have received a sufficient number of petitions projected as needed to reach the congressionally-mandated H-1B Cap (including the U.S. advanced degree exemption or “Master’s” cap) for Fiscal Year 2020. USCIS previously announced on April 5 that it had received enough petitions to reach the congressionally mandated H-1B regular cap of 65,000.

USCIS received 201,011 H-1B petitions during the filing period, which began on April 1, 2019.

USCIS will begin to reject and return filing fees for all unselected cap-subject petitions (with the exception of fees for cases rejected as prohibited multiple filings).

USCIS Reaches FY 2020 H-1B Regular Cap

USCIS has confirmed that they have received a sufficient number of petitions projected as needed to reach the congressionally-mandated 65,000 H-1B visa “regular” or “Bachelor’s” cap for Fiscal Year 2020.

USCIS will next determine if they have also received a sufficient number of petitions to meet the 20,000 H-1B visa U.S. advanced degree exemption, the “Master’s” cap.

As a reminder, the agency recently implemented a new rule amending the regulations governing the H-1B cap. Under the new rule, USCIS runs petitions through the lottery process by first selecting all individuals through the regular cap of 65,000 visas and then selecting the projected number of petitions needed to reach the advanced degree exemption through the second lottery among only U.S. advanced degree holders who were not selected in the regular cap lottery. The agency has stated that this new order in which the lottery is run will likely increase the probability of selection for H-1B advanced degree beneficiaries.

Once both caps have been met, USCIS will reject and return filing fees for all unselected cap-subject petitions (with the exception of fees for cases rejected as prohibited multiple filings).

USCIS to Resume Premium Processing for all H-1B Petitions Effective March 12, 2019

Today USCIS announced that effective Tuesday, March 12, 2019, Premium Processing Service will resume for all H-1B petitions. Premium processing service was previously suspended by USCIS back in March of 2018 for all FY2019 cap cases and in August 2018, it expanded and extended the suspension or more types of H-1B petitions. Since then, the Service has been incrementally restoring premium processing Service with the full restoration beginning March 12, 2019.

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USCIS To Resume Premium Processing Service for H-1B Petitions Filed on or before 12/21/2018

The United States Citizenship and Immigration Service (USCIS) announced that it will resume premium processing service on Tuesday, February 19, 2019 for all H-1B petitions filed on or before December 21, 2018.

As a reminder, USCIS previously announced that premium processing would resume for FY2019 cap-subject petitions beginning on January 28, 2019. Today’s announcement further expands the use of premium processing service to all other H-1B petition types filed on or before December 21, 2018.

USCIS notes that the premium processing requests must be sent to the service center currently handling the pending H-1B petition. It also states that the petitioners who have received requests for evidence (RFEs) should include the RFE response with their premium processing upgrade requests.

The announcement confirms that the previously-implemented suspension of premium processing service will remain in effect for H-1B petitions that were filed on or after December 22, 2018 until agency workloads permit premium processing service to resume for these cases.

D&S will continue to monitor the H-1B premium processing suspension and provide updates as they become available.

USCIS Announces that Data Entry for all FY2019 H-1B Cap Cases is Complete

USCIS has confirmed that data entry for all fiscal year 2019 H-1B cap-subject petitions selected in the computer-generated random selection process ("the lottery") has been completed. The Agency will now begin returning all H-1B cap-subject petitions that were not selected in the lottery. 

USCIS has indicated that, due to the high volume of H-1B filings, the Agency cannot provide a definite time frame for returning unselected petitions but that they will issue an announcement once all the unselected petitions have been returned. 

USCIS Issues Memo Updating Policy on Multiple H-1B Cap Filings for Same Individual

USCIS recently issued a Policy Memorandum adopting Matter of S- Inc., a decision issued by the Administrative Appeals Office (AAO) regarding the prohibition on “related entities” filing multiple cap-subject H-1B petitions for the same H-1B beneficiary in an effort to increase chances of acceptance into the H-1B lottery.  USCIS’s adoption of this decision establishes policy guidance that applies to and guides USCIS visa adjudications, and the Memo directs USCIS personnel are to follow the reasoning in this decision in similar cases.

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USCIS Announces Temporary Suspension of Premium Processing Service for FY2019 H-1B Cap Subject Petitions

Today, March 20, 2018, USCIS announced that it will be suspending premium processing service for H-1B cap-subject petitions for fiscal year 2019.  The temporary suspension is expected to last until September 10, 2018 and applies only to FY2019 cap-subject petitions, meaning those that are being filed as cap-exempt, including requests for change of H-1B employer, extension of H-1B status, and H-1B petition amendments, for example, will continue to be eligible for premium processing service. 

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Travel Advisory for F-1 Students Undergoing H-1B Sponsorship

Foreign nationals who are currently employed pursuant to F-1 Optional Practical Training (OPT) and for whom and H-1B petition is being submitted under this year’s H-1B cap are advised to proceed with caution when planning international travel leading up to and during the H-1B cap filing window (which starts April 2, 2018).  Depending upon when their OPT expires, when and how they plan to commence H-1B status, and whether they will require a new F-1 visa stamp before October 1st, travel may not be possible or may come at increased risk.  

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D&S Practice Pointer: Bona Fide Termination of H-1B Employees

Many employers are aware of the fact that they are responsible for the reasonable cost of a H-1B employee's return transportation home if they terminate an employee prior to the expiration of their H-1B petition.  What many employers don't realize is that this requirement is also an important step in effecting a "bona fide" termination of an H-1B employee.  In this post, D&S provides some additional information, details, and guidance on ensuring that H-1B employers effect a bona fide termination of an H-1B employee to reduce the risk that they could be subject to payment of back wages and penalties from the Department of Labor (DOL).

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President Trump Signs Executive Order Titled “Buy American and Hire American”

Today, April 18, 2017, President Trump signed an Executive Order (EO) titled “Buy American and Hire American” with the intent of making changes to the U.S. visa program to protect the jobs of American workers (which includes U.S. citizens and lawful permanent residents).

In addition to provisions calling for the enforcement of laws which require, or provide a preference for, the purchase of goods produced in the United States, the EO directs various federal agencies to propose new rules and issue new guidance relating to the administration of the U.S. immigration system in order to protect the interests of U.S. workers. The EO indicated that these “Hire American” provisions are intended to create higher wages and employment rates for U.S. workers and to protect their economic interests.  Of particular note, the EO focuses specifically on reforms to the H-1B visa program, though it remains to be seen whether such reforms, once implemented, would impact other visa categories as well.

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USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse

Today, Monday April 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced multiple measures to “deter and detect H-1B visa fraud and abuse,” including targeted site visits and a new avenue for H-1B visa holders and U.S. workers to report potential violations of the H-1B visa program.

Effective immediately, USCIS will also take a more targeted approach when making site visits to H-1B petitioners and the worksites of H-1B employees. USCIS has indicated that the targeted site visits will focus on:

  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers); and
  • H-1B workers who work offsite at another company or organization’s location.

USCIS will continue to conduct random, unannounced administrative site visits nationwide. However, USCIS has indicated that the addition of these targeted site visits will allow the Agency to focus resources where they believe fraud and abuse of the H-1B program may be more likely to occur.

The Agency further clarified that the site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action, but rather to identify employers who are abusing the H-1B visa program.

USCIS has also established an email address which will allow individuals (including both American workers and H-1B workers who suspect they or others may be the victim of H-1B fraud or abuse) to submit tips, alleged violations and other relevant information about potential H-1B fraud or abuse.

USCIS Updates H-1B Adjudication Guidance for Computer-Related Occupations

On Friday, March 31, 2017, U.S. Citizenship and Immigration Services (USCIS)  published a policy memorandum which updates guidance related to determining whether certain computer-related positions qualify as a specialty occupation for H-1B eligibility. This memo rescinds the Agency’s long-standing position that adjudicators should “generally consider the position of programmer to qualify as a specialty occupation,” as outlined in their December 22, 2000 “Guidance memo on H1B computer related positions.”

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USCIS Announces Temporary Suspension of Premium Processing for All H-1B Petitions Filed On or After April 3, 2017

Today the United States Citizenship and Immigration Service (USCIS) issued a statement confirming that the agency will be temporarily suspending premium processing service for all H-1B nonimmigrant visa petitions filed on or after April 3, 2017 and has indicated that the temporary suspension may last up to six (6) months.  The agency confirmed that this will apply to all H-1B petitions, including those filed under both the regular and master's cap and those that are cap-exempt.

USCIS indicated that while H-1B premium processing is suspended it will not accept Forms I-907, Request for Premium Processing Service filed with an H-1B petition. USCIS also confirmed that they will reject the entire H-1B petition for cases where the premium processing fee is combined in one check with the standard Form I-129 filing fees.  Therefore, individuals submitting H-1B petitions should not file any cases with a request for premium processing and should issue separate checks for each filing fee in order to avoid any issues with rejection of the petition.

USCIS has indicated that it has temporarily suspended premium processing service in order to reduce overall H-1B processing times, including long-pending cases and unadjudicated H-1B extension requests that are approaching 240 days since filing (after which the beneficiary would lose their automatic extension of employment authorization until the new petition is approved).  The agency confirmed that it will notify the public before resuming premium processing for H-1B petitions.

D&S is continuing to monitor this developing situation and will provide updates as they become available.

Reminders to Students and Employers as H-1B Cap Effective Date Approaches on October 1

As October 1st is fast-approaching, individuals with H-1B petitions that were selected in this year’s H-1B cap and employers of H-1B visa holders should remain aware of some important facts:

CAP-GAP EXTENSIONS END ON SEPTEMBER 30th - For those whose H-1B is still pending and who are relying on the automatic cap-gap for F-1 students, keep in mind that that your cap-gap employment authorization ends on September 30th, even if the H-1B remains pending after this date. Therefore, employees whose H-1B visas are not approved by October 1st will have to stop working and be removed from payroll. Because of this, we recommend considering upgrading to premium processing as soon as possible in order to avoid this consequence or, at the very least, minimize the amount of time you or your employee will be unable to work.

VALID H-1B VISA STAMP REQUIRED FOR REENTRY TO U.S. - While an H-1B employee is not required to have a valid H-1B visa in his or her passport for purposes of employment, they must have a valid H-1B visa stamp for entry or reentry to the U.S. Therefore, following approval of the H-1B petition, an H-1B employee should be mindful of the fact that they will be required to apply for an H-1B visa stamp prior to returning to the U.S. the next time they travel internationally, absent certain limited exceptions, including trips of under 30 days to Canada, Mexico, or adjacent islands (note individuals should vet any such travel with immigration counsel prior to making travel plans to ensure an exception applies in their case).  

I-9 REVERIFICATION MAY BE REQUIRED - Employers should also keep in mind that for current employees with an approved H-1B “Change of Status” petition, whose current status will expire on October 1, including all F-1 students working pursuant to cap-gap employment authorization, the individual’s employment authorization will need to re-verified on Form I-9.

ALWAYS ADVISE IMMIGRATION ATTORNEY OF ANY CHANGES TO H-1B EMPLOYMENT - Finally, employers and employees should be aware that certain changes to the terms of an H-1B visa holder’s employment could impact their continued eligibility for H-1B status and/or could necessitate the filing of an H-1B amendment.  Employers are therefore encouraged to speak to immigration counsel prior to making any changes to the terms of an H-1B visa holder’s employment to ensure compliance with these requirements.

USCIS Releases Final Guidance On When H-1B Amendments Are Required Following AAO's Simeio Decision

On July 21, 2015, USCIS issued a new policy memorandum providing final guidance on when employers are required to file H-1B amendments following a change in job site location for their H-1B employees.   The final guidance clarifies issues raised both in the April 9, 2015, Administrative Appeals Office (AAO) decision, Matter of Simeio Solutions, LLC as well as in USCIS's draft guidance on this topic issued May 21, 2015. 

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