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USCIS Reaches the Fiscal Year 2022 H-1B Cap

March 1, 2022 by Thomas Geygan


USCIS has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2022.
Non-selection notifications have been sent to registrants’ online accounts. The status for registrations properly submitted for the FY 2022 H-1B numerical allocations, but that were not selected, will now show:
• Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2022 H-1B cap. USCIS will continue to accept and process petitions filed to:
• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in additional H-1B positions.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations.

Filed Under: H-1B

DHS Publishes Final Regulation Governing H-1B Cap Subject Petitions

February 13, 2019 by Thomas Geygan

January 31, 2019

On January 31, 2019, DHS published a final rule in the Federal Register that amends the regulations governing petitions filed under the H-1B visa lottery. The final rule is effective April 1, 2019, though DHS will suspend the electronic registration requirement for this year’s H-1B cap. Details about the final regulation are outlined below under the January 30, 2019, update.

January 30, 2019

On January 30, 2019, DHS released a copy of a final rule that amends the regulations governing H-1B petitions that are filed under the H-1B cap (commonly known as the “H-1B visa lottery”) for beneficiaries counted towards the H-1B regular cap, as well as beneficiaries with advanced degrees from U.S. institutions of higher education who are eligible for an exemption from the regular cap (“advanced degree exemption”). The final rule reverses the order by which USCIS will select H-1B petitions under the H-1B regular cap and the advanced degree exemption, and adds an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The final rule is scheduled to be published in the Federal Register on January 31, 2019 and will become effective on April 1, 2019, though DHS is suspending the electronic registration requirement for the fiscal year (FY) 2020 H-1B cap filing season. This means that H-1B cap-subject petitions filed as part of the FY2020 H-1B cap filing season, which opens on April 1, 2019, will need to be filed using the same process as in prior years, with petitioners submitting a complete H-1B petition to USCIS, together with filing fees, in order to be eligible to be considered for selection in the FY2020 H-1B visa lottery.

Electronic Registration Requirement

  • Under the final regulation, DHS is adding a registration requirement for petitioners seeking to file H-1B cap subject petitions on behalf of foreign workers, though DHS is suspending the electronic registration requirement for the upcoming FY2020 H-1B cap season to complete user testing of the registration system and to ensure the system and process are fully functional.
  • Per the final regulation, DHS anticipates the registration requirement will be implemented starting with the FY2021 H-1B cap.
  • In the future, once the electronic registration requirement is implemented, all petitioners who seek to file H-1B cap petitions which will required to first electronically register with USCIS during a designated registration period, unless the registration requirement is temporarily suspended.
  • 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.
  • A petitioner must electronically submit a separate registration to file a petition for each beneficiary it seeks to register, and each beneficiary must be named.
  • A petitioner may only submit one registration per beneficiary in any fiscal year. If a petitioner submits more than one registration per beneficiary in the same fiscal year, all registrations filed by that petitioner relating to that beneficiary for that fiscal year will be considered invalid.
  • USCIS will notify petitioners whose registration has been selected into the visa lottery that the petitioner is eligible to file an H-1B cap-subject petition on behalf of the beneficiary named in the notice within the filing period indicated on the notice.
  • Only those petitioners whose registrations are selected will be eligible to proceed to complete and file an H-1B cap-subject petition during the associated filing period, which will be at least 90 days.
  • Note that although DHS initially proposed to stagger filing periods, such that the initial date after which petitions based on selected registrations could be filed would be spread out over time, DHS is not proceeding with staggered filing periods in its final rule.
  • USCIS will announce the start of the initial registration period on the USCIS website at least 30 calendar days prior to the commencement of the registration period.
  • In addition, DHS will publish a notice in the Federal Register to announce the implementation of the registration process in advance of the H-1B cap season in which the registration process will be implemented.
  • USCIS has indicated that it will engage in stakeholder outreach and provide training to the public on the registration system in advance of its implementation to ensure petitioners understand how to access and use the system.
  • USCIS expects that the electronic registration requirement, once implemented will reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS and petitioners.

Allocation of H-1B Cap Numbers

  • Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days in which H-1B cap petitions may be filed, the advanced degree exemption beneficiaries are selected before the H-1B cap beneficiaries.
  • The final rule will reverse the selection order and count all applicants towards the number projected as needed to reach the H-1B regular cap first. Once a sufficient number of applicants have been selected for the H-1B regular cap, USCIS would then select applicants towards the advanced degree exemption.
  • USCIS predicts that changing the order in which USCIS counts these allocations will likely increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations.
  • Specifically, USCIS estimates that the change will result in an increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.
  • USCIS will proceed with implementing this change to the H-1B cap allocation selection process for the FY2020 cap season (beginning on April 1, 2019), notwithstanding the delayed implementation of the H-1B registration requirement

January 25, 2019

On January, 25, 2019, the Office of Management and Budget (OMB) completed review of the H-1B proposed regulation. Before the rule can go into effect, it must be published in the Federal Register.

January 11, 2019

On January 11, 2019, USCIS sent a final version of the proposed regulation to the OMB for review, which is the next step in the regulatory process.

January 2, 2019

On January 2, 2019, AILA submitted comments in response to the proposed regulation that would require petitioners seeking to file H-1B cap petitions to register electronically with USCIS and would reverse the order by which the agency selects H-1B petitions under the H-1B cap and advanced degree exemption (AILA Doc. No. 19010300). Among other things, AILA urged USCIS to suspend implementation of the H-1B registration process until at least the FY2021 H-1B cap season or until such time that a comprehensive, completely functional system that has been thoroughly beta-tested can be rolled-out. AILA also asked USCIS to immediately make an announcement to this effect, to provide U.S. employers with adequate clarity and assurances regarding the process that will commence in only a few short months.

December 3, 2018

On November 30, 2018, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking that would require petitioners seeking to file H-1B cap-subject petitions to register electronically with the U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. Under the proposed rule, USCIS would also reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced degree exemption. The proposed regulation was published in the Federal Register on Monday, December 3, 2018. USCIS will accept public feedback on the proposed regulation until January 2, 2019.

Electronic Registration Process

Under the proposed regulation, petitioners seeking to file H-1B cap-subject petitions would be required to register electronically with USCIS during a designated registration period. The electronic registration period would begin at least 14 calendar days before the first date the H-1B filing window opens each fiscal year, commonly April 1, and would remain open for at least 14 calendar days. USCIS would give at least 30 calendar days’ notice of the registration period on the USCIS website.

USCIS would then conduct the annual H-1B lottery from the pool of timely-filed electronic registrants. The rule proposes that petitioners whose petitions are selected will be notified that they are eligible to file an H-1B petition within a designated filing period. The duration of the filing period for registrants who are selected would be at least 60 days. According to the proposal, a registrant therefore could wait until they have been notified of selection before submitting the corresponding H-1B petition on behalf of the beneficiary named in the selected registration. USCIS would hold some unselected H-1B registrations in reserve so that additional cases could be filed if the quota is not reached due to petition rejections, denials or withdrawals, or if an employer does not file an H-1B petition on behalf of selected beneficiary. USCIS could reopen registrations if more cases are needed to fulfill the annual quota.

The registration process would require basic information from both the employer and the beneficiary, including:

  • the employer’s name, identification number (EIN), and address;
  • the employer’s authorized representative’s name, job title, and contact information;
  • the beneficiary’s name, date of birth, country of birth, country of citizenship, gender, and passport number, as well as whether the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education;
  • the employer’s attorney or accredited representative, if applicable; and
  • any additional basic information requested by the registration system or USCIS.

Employers would also be required to attest that they intend to file an H-1B petition for the beneficiary in the position for which the registration is filed, among other attestations.

Petitioners would need to file a separate registration for each beneficiary and would be limited to one registration per beneficiary for the same fiscal year. USCIS is not proposing to charge a fee for electronic registration at this time.

Allocation of H-1B Cap Numbers

The second major change proposed by DHS is to reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced degree exemption. Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days in which H-1B cap petitions may be filed, the advanced degree exemption beneficiaries are selected before the H-1B cap beneficiaries.

The proposed rule would reverse the selection order and count all applicants towards the number projected as needed to reach the regular H-1B cap first. Once a sufficient number of applicants have been selected for the H-1B cap, USCIS would then select applicants towards the advanced degree exemption. USCIS projects that this change in the process would result in a 16% increase in the number of selected beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

Severability Clause

The proposed rule contains a severability clause which provides that DHS could continue to implement either the electronic registration system or the allocation process by which the agency would select H-1B petitions under the H-1B cap and the advance degree exemption independently in the event it cannot implement the both together, for example, if one of the processes is enjoined or invalidated by a court.

Timeline for Finalizing the Regulation

USCIS has indicated it would like to finalize and implement the regulation and the electronic registration system in time for the opening of the upcoming Fiscal Year (FY) 2020 H-1B cap filing season on April 1, 2019. However, the likelihood that USCIS will finalize both by April 1, 2019 is slim, given the tight timeframe by which the agency must complete the regulatory process.

The 30-day notice and comment period opened on December 3, and will remain open until January 2, 2019. USCIS must then review the comments and any final version of the regulation must address concerns raised by the public. Before a final rule can be published, it would first be reviewed by the Office of Management and Budget (OMB). Once the rule is finalized, the government would identify a date for the rule to go into effect.

In the notice of proposed rulemaking, USCIS acknowledges that it might not be possible to implement the electronic registration process in time for FY2020 H-1B cap filing season, particularly if additional user testing and vetting of the new system is required. Thus, if the rule is finalized as proposed, but there is insufficient time to implement the registration system in time for the FY2020 cap selection process, USCIS could suspend the electronic registration system for the upcoming H-1B filing season, and continue to accept complete H-1B petitions with supporting documents as it has done in the past.

How Should Petitioners and Beneficiaries Prepare for the Upcoming H-1B Cap Season?

AILA members should advise their clients regarding the uncertainty of the timing in which the agency could finalize and implement the proposed regulation, and plan to prepare H-1B cap subject petitions for FY2020 as they have in the past.

November 16, 2018

On October 17, 2018, DHS released its Fall 2018 Unified Agenda of Regulatory and Deregulatory Actions and Regulatory Plan, which provides the public with an overview of anticipated federal regulatory activity. The regulations featured in the Unified Agenda and the timelines stated are aspirational and are not strictly adhered to.

One DHS proposed regulation, entitled “Registration Requirement for Petitioners Seeking to File H-1B Petitions on Behalf of Cap Subject Aliens” (commonly known as the H-1B registration regulation) is featured in the Fall 2018 Unified Agenda and is described as follows:

The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) (“H-1B regular cap”) or under section 214(g)(5)(C) of the INA (“H-1B master’s cap”). This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. employers has often exceeded the numerical limitation. This rule is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for these H-1B petitions.

Although the Fall 2018 Unified Agenda indicates an October 2018 time frame for publication of this proposed rule, the rule has not yet been published. The rule was sent to the OMB on October 17, 2018 is currently pending review. Once OMB completes its review, a notice of proposed rulemaking will be published in the Federal Register and will be open to the public for notice and comment.

Although the text of the proposed rule has not been made public, it is expected that the rule will closely mirror the 2011 proposed rule on this topic, which was never finalized. AILA submitted comments on that proposed rule in 2011 during the notice and comment period.

On November 16, 2018, during the Office of the Citizenship and Immigration Services (CIS) Ombudsman Annual Conference, USCIS Director Francis Cissna indicated that DHS is actively working on the regulation with the aim of finalizing it in time for the opening of the Fiscal Year (FY) 2020 H-1B cap filing season. He acknowledged that in order to accomplish this, the regulation would need to be published soon and the agency would need to respond to comments provided by the public and finalize and publish the regulation well before April 1, 2019.

Filed Under: H-1B

Receipt Notice(s) I-797

November 14, 2017 by Thomas Geygan

The Receipt Notice is the first document you receive after you apply or petition U.S. Citizenship and Immigration Services (“USCIS”). Receipt Notices contain information that will help you track the progress of your case. Whenever you hire an attorney to help you with your immigration applications, always bring all USCIS notices with you so he or she can help you better. Receipt Notices are printed on Form I-797, Notice of Action. USCIS prints processing notices on these Notices of Action. These notices include receipt notices, transfer notices, and approval notices. Each looks slightly different.

Notice Type: This tells you what kind of notice this is-receipt notice, transfer notice, approval notice, etc.

Case Type: This states what form this is notice is for. The sample notice is from an I-130, Petition for Alien Relative. This is a “family-based immigrant visa petition” that a U.S. citizen or legal permanent relative would file asking USCIS to allow his or her family member (here child) to come to the United States permanently.

Receipt Number: The receipt number is very important. With that number you or your attorney can check the status of your case on the USCIS website or by calling the National Customer Service Center at 1-800-375-5283. Receipt numbers start with a three-letter code followed by numbers.

The first three letters refer to the USCIS service center processing your application:

  • EAC – Vermont Service Center (formerly the Eastern Action Center);
  • WAC – California Service Center (formerly the Western Action Center);
  • LIN – Nebraska Service Center (refers to the center’s location in Lincoln, Nebraska);
  • SRC – Texas Service Center (formerly the Southern Regional Center); and
  • MSC – National Benefit Center (formerly the Missouri Service Center).
  • YSC – Potomac Service Center

The two numbers that follow the three-letter code refer to the fiscal year the application was received. The next three numbers refer to the computer day it was received. The remaining five numbers are randomly generated for your unique application.

Example: MSC-17-026-12345 – This application was filed in 2013 with the National Benefit Center on the 26th computer day.

You can check on what receipt date the service center is working on for your type of case by clicking here.  You must know the application form number and the service center.

Priority Date: This is a very important date for many applications. If you are a U.S. citizen filing for a spouse, parent, or minor child (under 21), then this date rarely matters for you (only if your child is about to turn 21 would this be important). If you are one of the following, then this date is very important:

  • U.S. citizen filing for a child over 21;
  • U.S. citizen filing or a sibling;
  • Permanent Resident filing for a child or spouse.

The Priority Date refers to your loved one’s spot “in the line.” There are a limited number of visas available each year for each “category” of immigrant. Every month the U.S. government issues a bulletin stating where in the “line” it is processing. To read this, find the preference category on the front of the notice (this will be listed under “Preference Classification” next to the priority date. Then look for your country on the chart to see what the “current” date is that they are issuing visas for. When the date on the chart is later than your Priority Date, you can then apply for the visa so your loved one can come here.

Filed Under: AOS Employment, AOS Family, AOS Marriage, E-2, H-1B, I-751, K-1, N-400

USCIS to suspend premium processing for H-1B

March 7, 2017 by Thomas Geygan

Starting April 3, 2017, USCIS will temporarily suspend premium processing for all H-1B petitions. This suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners cannot file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. USCIS will notify the public before resuming premium processing for H-1B petitions.

Who Is Affected

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. Since FY18 cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension 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. While premium processing is suspended, USCIS will reject any Form I-907 filed with an H-1B petition. If the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, USCIS must reject both forms.
USCIS will continue to premium process Form I-129 H-1B petitions if the petitioner properly filed an associated Form I-907 before April 3, 2017. Therefore, USCIS will refund the premium processing fee if:
1. The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
2.USCIS did not take adjudicative action on the case within the 15-calendar-day processing period.

This temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on Form I-129, such as the E-2 Treaty Investor visa.

Filed Under: H-1B

H-1B Employees

January 5, 2017 by Thomas Geygan

EmploymentsmallIf you’re a U.S. company like many others who cannot comfortably fill high-tech, scientific, educational, telecom, and engineering positions with American workers, you may be thinking of turning to foreign national workers to fill these hard-to-fill positions.

Your Company is Not Alone

Microsoft, IBM, and other companies hire foreign national workers because they can’t find American workers to fill the positions in a timely manner.  This is true even in the difficult 2012 economy.

Other companies hiring foreign national workers include Infosys Technologies, Deloitte Consulting, Fujitsu Laboratories OF America, Cognizant Technology Solutions, Patni Americas, CVS Pharmacy, Qualcomm, Larsen Toubro Infotech, Intel, Wipro, Goldman Sachs, Oracle, Barclays Capital, Google, Yahoo, Hewlett Packard, Ernst and Young, National Institutes Of Health, HHS, Amazon.com, Apple, Morgan Stanley.  Of course, there are thousands more companies as well.

Consult with a Qualified Immigration Attorney for H-1B Visas

An immigration lawyer can help your company get the qualified workers it needs.  H-1B visas are issued to foreign national workers who are needed to work in the U.S.

Up to 85,000 H-1B visas are granted each fiscal year

H-1B Visa Benefits

The H-1B visas allow your workers to enter, live in, work, and reenter the United States.

Your worker can bring her spouse and children, under the age of 21, with her.

  • These dependents are issued an H-4 visa, which does not have all the benefits of the H-1B visa.
  • Bottom line is that dependents cannot work in the U.S. without their own H-1B visa or some other authorization.

H-1B Visa Renewal

The initial H-1B visa is issued for 3 years.

  • It’s commonly extended for another 3 years, upon request (6 years total.)
  • Only in rare circumstances is an H-1B visa extended beyond 6 years.
  • Defense department employees may be able to get a 10-year H-1B visa.

If you need the foreign national employee beyond the usual 6 year limit:

  • Your employee could apply for a green card.
  • Your employee could leave the U.S. for one year and then reapply for another H-1B visa, which would have a fresh start date.

Where to Get Help Bringing a Foreign National Worker to the U.S.

If you want to bring a foreign national worker to the U.S. to work in your company, consult with a qualified immigration attorney, who will help you get your employee one of the coveted H-1B visas.  We focus our practice on immigration law and you can reach us at 513-793-6555 or Thomasjr@geygan.com.  Your next step is to contact us now.

 

Filed Under: H-1B

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