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H-1B Cap Filings-Electronic Registration; Reversal of Cap Count

January 30, 2019 Leave a comment

The U.S. Citizenship and Immigration Services (USCIS) recently proposed a few changes to the H-1B visa program.  Most notably, introduction of electronic registration requirement for employers in order to file the H-1B cap petitions and the reversal of how cap numbers are counted/allocated.  The proposed regulation which went through a comments period prior to being sent to OMB for review (Office of Management and Budget) has been approved by OMB yesterday.  The USCIS has just released the final regulation today. 

Summary of Changes:

Mandatory Electronic Registration Requirement (but fortunately not for this year):

  • USCIS is introducing the electronic registration requirement for employers in order to file H-1B cap-subject petitions on behalf of foreign workers.  The good news is that USCISis suspending the electronic registration requirement for the upcoming FY 2020 (i.e. April 1, 2019 filings) H-1B cap season so as to allow itself to undertake user testing of the electronic registration system and to ensure the system and process are fully functional forFY 2021 (April 1, 2020) H-1B season.  What this means for employers is for this year, the process of filing H-1B cap cases remains the same with no electronic registration requirement, etc. 
  • Once the electronic registration takes effect sometime next year, employers who seek to file H-1B cap petitions will need to electronically register as a first step during a designated electronic registration period, unless the registration requirement is temporarily suspended.
  • USCIS will announce the start date of the initial registration period on its website for each fiscal year at least 30 days in advance of the opening of the registration period. The registration period will last a minimum of 14 calendar days and will start at least 14 calendar days before the earliest date on which H-1B cap-subject petitions may be filed for a particular fiscal year.
  • An H-1B employer (or agent/attorney) must electronically submit a separate registration to file a petition for each foreign worker it seeks to register, and each beneficiary must be named.  Cannot register a petition without the Beneficiary’s full legal name. 
  • An employer cannot submit more than one registration for each foreign worker for the given fiscal year. In other words, no duplicate filings and if an employer is found to have been involved in duplicate registrations, all registrations pertaining to that employer for that foreign worker will be invalidated.
  • If/when a visa lottery takes place, USCIS will notify via a written notice to the employers whose petitions have been selected to file an H-1B petitions for the named foreign workers in the notice within a given filing period indicated on the notice.  Such employers must submit the petition and support documents, which is at the minimum 90 days per the final regulation.

Reversal of Cap Count Coming this year itself:

Current Process:

The current process of counting cap-subject cases in the instance where H-1B filings hit the cap in the first five business days is that-

  • First Step:  The Advanced degree (US Master’s cap) exemption foreign workers (US Master’s of higher) are selected in 20,000 cap; and
  • Second Step: Once the Master’s cap cases have been counted, the regular H-1B cap (65,000) cases are selected including any US advanced degree-holder petitions that did not get selected in the US Master’s cap.

Upcoming Change in Process for April 1, 2019:

The proposed change which became part of the final rule starting the upcoming FY 2020 cap season (starting April 1, 2019) will essentially reverse the selection order: 

  • First Step: It will count all foreign workers towards the number projected as needed to reach the regular H-1B cap first.
  • Second Step: Once a sufficient number of applicants have been selected for the regular H-1B cap, USCIS would then select foreign workers towards the 20,000 US Master’s cap. 

The USCIS predicts that changing the order in which they cases are counted will likely increase (up to 16%) the number of beneficiaries with a U.S. master’s or higher degree.

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Denial without an RFE or NOID (Currently in Effect)

October 11, 2018 Leave a comment

Recently, the U.S. Citizenship and Immigration Services (USCIS) guidance pertaining to denial of certain petitions or applications without first issuing an RFE (Request for Evidence) or NOID (Notice of Intent to Deny) went into effect.  It became effective on September 11, 2018.

What is the guidance about:    The guidance empowers USCIS adjudicators with the discretion (total free will) to deny an application, petition, or request without first issuing an RFE or NOID if initial evidence is not submitted or if the evidence in the record does not establish eligibility.

When and what type of cases is it applicable: Starting September 11 when the policy went into effect, the USCIS adjudicators now have complete discretion to deny cases without issuing an RFE or a NOID first. This includes any filing in which the applicant, petitioner, or requestor has no legal basis for the benefit/request sought or submits a request for an immigration benefit or relief under a program that has been terminated.  Moreover, if all required initial evidence is not submitted with the petition or application, USCIS in its discretion may deny for failure to establish eligibility based on lack of required initial evidence.  What is considered “required” can be very subjective and arbitrary in interpretation of adjudicators.  Types of cases include pretty much all immigration benefits – H-1B, H-4, L-1/L-2, green card cases, family based cases, waiver applications etc.

What are the documentary examples of initial evidence in the context of H-1B:  USCIS has recently provided examples of what it regards as initial evidence to be filed with a H-1B petition:

  • Evidence the beneficiary maintained status if seeking a change of status or extension of stay
  • Evidence showing the proposed employment qualifies as a specialty occupation
  • Evidence showing the beneficiary is qualified to perform the specialty occupation
  • A copy of any required license or other official permission for the beneficiary to perform the specialty occupation in the state of intended employment (if applicable)
  • A copy of any written contract between the employer and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed.
  • An itinerary showing the date and places of assignment if the petition indicates that the beneficiary will be providing services at more than one location.
  • A corresponding Labor Condition Application (LCA) that has been certified by the Department of Labor (DOL) and signed by the petitioner and attorney/representative, if applicable.

What you can do to potentially avoid a denial without an RFE/NOID:  In addition to the above, for the past several years, our office has been providing clients with and using a comprehensive list of documents as a guide in H-1B filings.  This has helped us get overwhelmingly positive results in our filings for many years.

It is highly imperative to note that the process has become quite arbitrary leaving to each USCIS adjudicator the decision/discretion to approve or deny a case with the evidence submitted.  For instance, if a H-1B petition is filed without an end client letter in a client site placement situation (we believe this piece of document is extremely critical), one adjudicator may not consider this as part of initial evidence and may issue an RFE or an NOID while another adjudicator may simply decide to deny the case for failing to prove proper corporate relationship/proof of placement at the end client.  Thus, this highly arbitrary and subjective process will further complicate matters for H-1B employers.  Please consider providing as much information and documents as possible with each filing.

USCIS received over 236,000 H-1B petitions in April 2016

April 20, 2016 Leave a comment

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2016, that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the master’s cap.

USCIS received over 236,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 9, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit.

USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016.

H-1B Cap Filings Begin Friday, April 1, 2016

February 1, 2016 Leave a comment

April 1 is nearing.  Even though H-1B filings begin the first business day, which is Friday, April 1, 2016, the H-1B individuals will not be able to arrive in the United States until late 2016 (Oct/Nov) or early 2017 to work for employers (given the delays at Consulates).  Here are some thoughts:

Thursday, March 31, 2016 is when we could begin shipping H-1B cases to USCIS with an employment start date of October 1, 2016.

Just as last year, the Labor Condition Application (“LCA”) which is required as part of filing of an H-1B petition, is actually taking up to 7 days to be certified. Thus, if you would like to file an H-1B petition on or shortly after April 1, 2016, consider leaving several weeks of buffer time between document transmittal to our office, preparation, LCA processing delays, etc.  Moreover, things that are beyond our control such as US government shutdown or such similar event, which resulted in LCA website being down for about a month in 2013 could happen again.

It is imperative to note that the regular H-1B quota is 58,200, not 65,000.  This is because 6,800 out of 65,000 are allotted for Chile and Singapore. In addition, there will be 20,000 H-1B available for potential employees who have earned a U.S. masters or a higher degree.

We strongly advise that employers discuss with us at the earliest convenience about the upcoming H-1B cap filings.  

Categories: H-1B Posts Tags: , ,

H-1B & L-1 Fee Increase

December 22, 2015 Leave a comment

On December 18, 2015, President Obama signed into law the Omnibus Appropriations Bill for 2016. The U.S. Senate adopted the Omnibus Appropriations Act (the “Act”) by a vote of 65-33; the House did so by a 316-113.

H-1B & L-1 Fee Increase

The Act includes, among other things, the following changes to the currently expired H-1B/L-1 fees for companies with more than 50 employees and companies where 50% or more of the employees hold H-1B or L-1 status:

  • Additional L-1 fees for companies with more than 50 employees and where 50% or more of the total employees are in H or L status increase from $2,250 to $4,500;
  • Additional H-1B fees for companies with more than 50 employees and where 50% or more of the total employees are in H or L status increase from $2,000 to $4,000;
  • Fees must be paid on initial petitions as well as extension petitions;
  • Fees are authorized for ten years, running through September 30, 2025;
  • The funds generated by these fees will be split between the 9-11 programs and the Biometric Entry-Exit program;
  • The addl. fee goes into effect immediately.  In fact, the US Consulates in India are already charging it.

Fees Breakdown

While we await the final guidance from USCIS on the precise fees to be paid, the following appears to be the breakdown:

  • H-1B initial filing: $325* + $1500** + $4000*** + $500**** = $6325
  • H-1B first extension: $325 + $1500 + $4000 = $5825
  • H-1B second/subsequent extension: $325 + $4000 = $4325
  • L-1 initial filing: $325 + 4500 + 500 = $5325
  • L-1 first or subsequent extension: $325 + $4500 = $4825

*Form I-129 Fee

**ACWIA H-1B training Fee

*** 9-11 Response and Biometric Entry-Exit Fee

****Fraud Detection and Prevention Fee

Precise fee details will be posted on this blog once there is guidance from USCIS.

H-1B Cap Filings Begin Wednesday, April 1, 2015

January 15, 2015 Leave a comment

April 1 is nearing.  Even though H-1B filings begin the first business day, which is Wednesday, April 1, 2015, the H-1B individuals will not be able to arrive in the United States until late 2015 (Sep/Oct) or early 2016 to work for employers (given the delays at Consulates).  Here are some thoughts:

Tuesday, March 31, 2015 is when we could begin shipping H-1B cases to USCIS with an employment start date of October 1, 2015.

Just as last year, the Labor Condition Application (“LCA”) which is required as part of filing of an H-1B petition, is actually taking up to 7 days to be certified. Thus, if you would like to file an H-1B petition on or shortly after April 1, 2015, consider leaving several weeks of buffer time between document transmittal to our office, preparation, LCA processing delays, etc.  Moreover, things that are beyond our control such as US government shutdown or such similar event, which resulted in LCA website being down for about a month in 2013 could happen again.

It is imperative to note that the regular H-1B quota is 58,200, not 65,000.  This is because 6,800 out of 65,000 are allotted for Chile and Singapore. In addition, there will be 20,000 H-1B available for potential employees who have earned a U.S. masters or a higher degree.

We strongly advise that employers discuss with us at the earliest convenience about the upcoming H-1B cap filings.  

H-1B Cap Filings Begin Tuesday, April 1, 2014

February 14, 2014 Leave a comment

April 1 is only a few weeks away.  Even though H-1B filings begin the first business day, which is Tuesday, April 1, 2014, the H-1B individuals will not be able to arrive in the United States until late 2014 (Sep/Oct) or early 2015 to work for you (given the delays at Consulates).  Here are some thoughts:

Monday, March 31, 2014 is when we could begin shipping H-1B cases to USCIS with an employment start date of October 1, 2014.

Just as last year, the Labor Condition Application (“LCA”) which is required as part of filing of an H-1B petition, is actually taking up to 7 days to be certified. Thus, if you would like to file an H-1B petition on or shortly after April 1, 2014, leave at least three-four weeks of buffer time between document transmittal to our office, preparation, LCA processing delays, etc.  Moreover, things that are beyond our control such as US government shutdown or such similar event, which resulted in LCA website being down for about a month in 2013 could happen again.

Remember that the regular H-1B quota is 58,200, not 65,000.  This is because 6,800 out of 65,000 are allotted for Chile and Singapore. In addition, there will be 20,000 H-1B available for potential employees who have earned a U.S. masters or a higher degree.

We strongly advise that you discuss with us at the earliest convenience about the upcoming H-1B cap filings.  Attached are H-1B Worksheets for you to start working on sending us the cases.    USCIS Filing Fee Schedule is attached for your convenience. 

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