Historically, H-1B visas have been the U.S. employment visa of choice due to their flexibility for professionals to work in “specialty occupations.” Lately, however, for those employers and prospective employees who are subject to the annual numerical “cap” on H-1Bs, the demand far outstrips the quota. Petitions must be filed in the first week of April in order to be included in a lottery from which a limited number will be selected for employment beginning the following October 1. In addition, the U.S. Citizenship and Immigration Services (“USCIS”) has increased its requests for additional evidence for selected petitions, which require special attention to the subject position’s qualification as an H-1B “specialty occupation.”

This alert is a reminder of the April 2, 2018 opening date for filing cap-subject H-1B visa petitions for Fiscal Year 2019. Petitions for the new fiscal year, which will be effective starting on or after October 1, 2018, will be accepted by the Government beginning April 2, 2018, and will likely continue through April 6. USCIS will continue to accept cap-subject H-1B petitions after April 6, but only if and until USCIS determines that a sufficient number has been received. Accepted petitions are then entered into random lotteries in which limited numbers of petitions are selected for processing.

Congress has placed a numerical cap on H-1B visas. For FY 2019, the limit again is 65,000 cap-subject H-1B visas, with an additional 20,000 H-1B visas available for individuals who have earned a Master’s degree or higher from an accredited U.S. educational institution. As in previous years, we expect USCIS to stop accepting petitions at the end of the fifth business day of April, whereupon those petitions accepted for the “advanced U.S. degree” quota will be entered into a random lottery, and those unselected will be entered into the general random lottery to vie for the remaining 65,000 H-1B visas with all other accepted petitions. We, therefore, advise employers to make H-1B sponsorship decisions and to prepare the H-1B petitions as early as possible and well before March 23, 2018, so that a complete petition can be prepared and filed for receipt by USCIS on April 2.

As soon as possible, we encourage employers to identify any employees or prospective employees who may require H-1B visa sponsorship. This may include prospective new employees, individuals who were not selected in previous H-1B lotteries, F-1 students, previous J-1 trainees, L-1 employees facing long green card delays, or other employees whose work authorization may be in jeopardy under changes in the immigration system proposed by the current Administration (e.g., persons working pursuant to H-4 employment authorization). Once the H-1B cap has been reached, employers will be unable to file new cap-subject H-1B petitions until April 1, 2019, for start dates of October 1, 2019.

We will work with you to file cap-subject H-1B petitions right up until April 5, and afterward, for as long as USCIS accepts them. Again, we strongly advise clients to finalize their H-1B petition decisions as soon as possible.

Please contact an attorney in Mintz Levin’s Immigration Practice Section for additional information regarding the H-1B visa program, or if you have a particular candidate in mind for H-1B status.

Effective immediately, United States Citizenship and Immigration Services (USCIS) will resume premium processing for select cap-exempt H-1B petitions. Cap-exempt petitioners who are eligible for premium processing can file Form I-907, Request for Premium Processing Service, along with the filing fee of $1,225.  

Such petitioners include: 

  • An institution of higher education;
  • A nonprofit related to or affiliated with an institution of higher education; and
  • A nonprofit research or governmental research organization.

Premium processing will also resume for petitions where the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity. 

USCIS will make future additional announcements regarding resuming the premium processing for additional H-1B petitions. Please contact your Mintz Levin immigration attorney with any questions.

On May 3, 2017, USCIS announced that it has completed data entry of all H-1B cap-subject petitions selected in the FY2018 lottery. We continue to receive receipt notices for selected petitions. USCIS will now begin returning all H-1B cap-subject petitions that were not selected, together with their respective filing fees. USCIS has not provided a definite timeframe for returning these petitions, but has stated that it will issue an announcement once all the unselected petitions have been returned. To read our full alert, click here.

USCIS announced on April 7, 2017, that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2018. USCIS also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption, also known as the master’s cap.

The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.

Stay tuned for additional updates regarding the FY18 cap lottery selection.

Please contact an attorney with Mintz Levin’s Immigration Practice to discuss any questions you may have about H-1B sponsorship or alternatives to the H-1B visa.

From proposals to overhaul OPT to decreasing the number of H-1Bs, 2016 is already proving to be an interesting year for business immigration. In a series of posts, the Mintz Levin team will provide an overview of the cases, legislation, and regulations to look out for in the new year. In our fourth post we will discuss executive action on H-4 EADs and the related lawsuit. 

After DHS announced that some H-4 spouses of H-1B workers would be eligible for work authorization, a group called Save Jobs USA filed suit against DHS to stop implementation of the rule. The battle between Save Jobs USA and DHS over regulations granting work authorization to certain H-4 visa holders continues in the United States District Court for the District of Columbia with both sides having filed motions for summary judgment during 2015.

Continue Reading A Preview of Business Immigration in 2016: H-4 EAD Reforms (Part 4/6)

This is part 2 of our analysis of the proposed rule published by DHS on December 30, 2015, addressing and extending employment flexibility for certain classes of nonimmigrants and prospective immigrants.

Proposed Rule Focus: Nonimmigrant Visas and EADs

In the previous post we focused on the potential benefits and consolidation of current policy for individuals already in the permanent residency process. This post will focus on the proposed policies for nonimmigrant visa holders who are not currently sponsored for an immigrant visa and employment authorization document changes. Many of the details in the proposed rule are currently executed under individual memos or practice. This rule addresses several of individually small issues, but taken together is intended to constitute an overall policy of increased flexibility and fairness in the U.S. job market for immigrant and nonimmigrant workers. Continue Reading DHS Proposes New Rule for Increased Job Flexibility: Part 2

On December 31st, the Department of Homeland Security issued a proposed rule addressing and extending employment flexibility for certain classes of nonimmigrants and prospective immigrants. The new rule proposes to amend current regulations to “clarify and improve longstanding agency policies” related to provisions in both the American Competitiveness in the Twenty-first Century Act of 2000 (“AC21”) and the American Competitiveness and Workforce Improvement Act of 1998 (“ACWIA”). When implemented, the rule has the potential to provide a clear adjudication system for USCIS and benefits for foreign nationals who would like more flexibility in the U.S. job market. While actual implementation is historically varied, we are cautiously optimistic that this rule will provide more standardized guidance for petition and application adjudication at the service centers. This post will examine the benefits for individuals who are already in the permanent residency process. Continue Reading DHS Proposes New Rule for Increased Job Flexibility: Part 1

U.S. Citizenship and Immigration Services (USCIS) released final guidance on a recent Administrative Appeals Office (AAO) decision requiring amended or new H-1B petitions for workers who change job sites. These requirements continue to only affect H-1B workers who move to a site outside the “area of intended employment” for which the original petition on their behalf was filed.  “Area of intended employment” is the area within normal commuting distance of the worksite where the H-1B is employed.

Guidance on what employers are required to do depends on the date of the employee’s move, which are drawn from the publication dates of the Simeio case and issuance of USCIS policy memos. All changes described below are for changes in the place of employment that require certification of a new Labor Conditions Application (LCA). These actions can be split into three categories by date:

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Though employers are not required to file an amended or new petition if the employee’s worksite changed on or before April 9, 2015, they may choose to do so to encourage non-interference by USCIS. All changes in place of employment that occurred after April 9, 2015 and require certification of a new LCA MUST file an amended or new petition.

On Thursday, November 20th, coinciding with President Obama’s announcement regarding his forthcoming executive action on immigration, Department of Homeland Security (DHS) Secretary Jeh Johnson issued a memo to the directors of US Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) directing the agencies to take action on the president’s announcements. The DHS memo provides a framework for changes the government wishes to make, relating to skilled immigration, to alleviate some longstanding problems in our business immigration system.

Many of the suggested changes are laudable but regulatory rulemaking will be required for most of these changes to take effect. Unfortunately, whereas President Obama was very clear in his announcement about timelines for the changes he is taking to protect certain undocumented immigrants, timeframes for producing regulations or for most of the business immigration changes are lacking in the secretary’s memo. The business community is left to wonder when these announced changes will materialize and what specific forms they will take.

Modernize the Employment-Based Immigrant Visa System

There are caps (quotas) on various types of immigrant visas (green cards) that result in extremely long backlogs and delays for people born in certain countries such as India and China.  If two software engineers at the same company are sponsored for green cards at the same time, and one of them is from Germany and the other is from India, the German applicant will get his green card in about two years while it will likely take his Indian colleague ten years to conclude the process. During this excruciatingly long waiting period, the Indian software engineer is supposed to remain in the same position for which he was originally sponsored. This benefits neither the employer nor the software engineer. Continue Reading Immigration Developments for Highly Skilled Workers: Changes the Business Community Can Expect as a Result of President Obama’s Executive Action on Immigration Reform