Articles Posted in H-1B

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On September 4, 2019, U.S. Citizenship and Immigration Services (USCIS) published a proposed rule requiring employers seeking to file H-1B cap-subject petitions to pay a $10 fee for each registration they submit to USCIS for the H-1B cap selection process.  USCIS intends to have the registration system ready prior to the implementation of the H-1B registration process, which may be as soon as the H-1B cap filing season for FY 2021.

According to USCIS, the proposed fee will cover some of the costs of building and maintaining a new H-1B electronic registration system, which USCIS estimates will cost about $1.5 million to develop, on top of ongoing maintenance costs.

USCIS finalized a rule in January 2019 requiring employers seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period.  The final rule also reordered the cap selection process to prioritize foreign nationals with a master’s degree or higher from a U.S. institution of higher education.

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The H-1B court case ITServe Alliance v. USCIS consolidates several cases of information technology (IT) companies whose H-1B applications have been denied or approved with short validity periods.  Judge Collyer’s ruling for this case could carry major implications for how U.S. Citizenship and Immigration Services (USCIS) directs adjudicators to decide H-1B cases.

According to Forbes, Judge Collyer addressed three key issues in the lawsuit.  “First, the government has yet to provide a good explanation for the disparate outcomes and adjudication processes for different types of employers—those with H-1B employees who perform work on customer sites and those who do not.  The denial rates for initial H-1B petitions in [fiscal year] (FY) 2018 were 1% for large technology companies and 34% to 80% for companies that place H-1B [petition] holders at third-party sites.”

“Second, USCIS has to explain why it must require specific work assignments stretching out for three years for contractors even though the law permits H-1B professionals to be in ‘nonproductive’ time so long as they are paid.”  “Third, Judge Collyer will decide whether discovery is warranted to find out what is behind the changes in USCIS adjudications of H-1B petitions.”

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The American Immigration Council (AIC), a nonprofit immigration advocacy group, published fact sheets and resources with key data points, historical information, and background on hot topics in immigration.  These publications highlight various aspects of economic contributions immigrants, such as H-1B and Temporary Protected Status workers, provide to the U.S.

H-1B

H-1B is a temporary (nonimmigrant) classification that allows employers to petition for highly educated foreign professionals to work in “specialty occupations” that require at least a bachelor’s degree or the equivalent.

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U.S. Citizenship and Immigration Services (USCIS) proposed a rule that would require petitioners seeking to file H-1B petitions subject to the regular cap, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period.  The proposed rule would also reverse the order by which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption.

We will begin preparing H-1B petitions in January 2019.  Contact our office to file an H-1B petition and with your questions about the H-1B program and the proposed rule.

Background

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Work Authorization Extension Only Valid Through September 30, 2018

F-1 students who have an H-1B petition that remains pending on October 1, 2018, risk accruing unlawful presence if they continue to work on or after October 1 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization is only valid through September 30.

“Cap gap” regulations allow an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on October 1, to have his or her F-1 status and any current employment authorization extended through September 30.

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Effective October 3, 2017, U.S. Citizenship and Immigration Services (USCIS) resumed premium processing for all H-1B extension of stay petitions.  Premium processing is now available for all types of H-1B petitions.

When a petitioner requests the agency’s premium processing service, USCIS guarantees a 15-calendar day processing time.  If that time is not met, the agency will refund the petitioner’s premium processing service fee and continue with expedited processing of the application.

Please contact us if you are interested in requesting premium processing, or if you have any questions.

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UCSIS recently announced that it will restructure the focus of H-1B site visits. The H-1B visa is an employment based visa in which the employer petitions USCIS to grant lawful status for the purposes of work on the behalf of the employee. These visas help employers recruit foreign nationals in an effort to compensate for the lack of domestic supply of qualified and skilled workers. Enforcement officers will be looking at the following key points with in hopes of reducing H-1B abuse by employers:

  • Cases where employer information is not easily verifiable via commercially available data
  • High ratio of H-1B workers in comparison to U.S. workers
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As of Monday March 27, 2017, the United States Citizenship and Immigration Services (USCIS) confirmed that there will be a random lottery for the H-1B cap cases for Fiscal Year 2018. If during the period of April 3-7, 2017, enough petitions are received to reach the 65,000 statutory H-1B cap and the 20,000 cap for petitions filed under the advanced degree exemption, a lottery will be conducted. As in the past, a random computer selection will first be carried out for those petitions submitted under the 20,000 master’s cap exemption. Any petitions not selected for the master’s cap will then be included in the random selection process for the 65,000 regular cap.

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Starting April 3, 2017, the United States Citizenship and Immigration Services (USCIS) will suspend premium processing for all H-1B petitions for a period of up to 6 months. During this suspension of H-1B premium processing, USCIS will reject any Forms I-907 filed with an H-1B petition. Submission of combined checks for both the Form I-907 and Form I-129 H-1B fees will result in the rejection of both forms. The USCIS will notify the general public when premium processing for H-1B petitions will resume.

The suspension is applicable to any and all H-1B petitions (both the FY18 H-1B regular cap and master’s cap) filed on/after April 3. The temporary suspension of premium processing also applies to cap-exempt petitions.

The USCIS will continue premium processing of Form I-129 H-1B petitions if an associated Form I-907 was filed before April 3, 2017.

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http://http://www.uscis.gov/news/uscis-temporarily-suspends-premium-processing-extension-stay-h-1b-petitions

Starting May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B Extension of Stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant. USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.

This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations.