After suspending the Premium Processing service for all H-1B petitions on April 3, 2017, USCIS has resumed premium processing for certain categories of H-1B petitions.

Yesterday, USCIS announced that it will now accept premium processing requests for H-1B petitions that are subject to the FY 2018 cap, including both regular cap and advanced degree cap cases. This is an especially important development for F-1 students who are in the "cap gap" period of employment authorization, which would otherwise end on September 30, 2017. These individuals may now request premium processing for their H-1B petitions in the hope of having the petition approved before October 1, 2017, to avoid any lapse in employment authorization.

USCIS had previously resumed premium processing for two very limited types of H-1B petitions: those for J-1 physicians requesting a waiver of the two-year home residence requirement through the Conrad 30 program or other interested government agencies and those filed by cap exempt employers or that are cap exempt because the beneficiary is employed at a cap exempt institution.

At this time, premium processing remains suspended for all other H-1B petitions, including extension of stay, change of employer, and amended petitions.

If you have any questions, please do not hesitate to contact us.

USCIS has announced that as of May 3, 2017, it has completed all data entry for H-1B cap petitions selected in the “lottery” for consideration in the FY2018 cap. USCIS will now begin returning all petitions that were not selected, a process that will probably take several weeks.

If you are a cap subject employer or worker whose petition was not selected, you might be able to take advantage of other visa categories, as follows:

• B-1 - The B-1 category allows a foreign national to enter the United States to participate in business activities on behalf of a foreign employer. Generally, a person in B-1 status may not engage in productive employment in the United States. Allowable B-1 activities include consulting/meeting with business associates, attending a professional conference, participating in training, or negotiating contracts. The “B-1 in lieu of H-1” might be used where the foreign national would qualify for H-1B status, but their employer is not based in the U.S. and they are coming to the U.S. for a short period of time. This type of B-1 status does permit productive work in the U.S., but the person must be employed by and continue to be paid by the overseas employer.
• E-3 - The E-3 category is limited to nationals of Australia and is capped at 10,500 per fiscal year, although that quota has never been filled. The substantive requirements of the E-3 are very similar to H-1B category. There must be an offer of employment in a “specialty occupation” and the individual must possess a bachelor’s degree or the equivalent in a field related to the employment.
• TN - The North American Free Trade Agreement (NAFTA) between the U.S., Canada, and Mexico allows for simplified immigration travel between and among the three countries. For purposes of employment in the U.S., citizens of Canada and Mexico who are coming to the U.S. to work in certain professions may be eligible to enter in TN status. To qualify for TN status, the foreign national must be a citizen of Canada or Mexico, must have a prearranged offer of employment in the U.S., and must meet the educational/experience qualifications for the occupation, which are defined in the NAFTA agreement. In addition, individuals must intend to work in one of the occupations listed in the NAFTA agreement.
• E-1 / E-2 - The E-1/E-2 categories require that the person be a national of a country with which the U.S. has an appropriate treaty of commerce and that the prospective employer is majority owned by nationals of that same treaty country or by corporate entities having the “nationality” of the treaty country. These owners/corporate entities must either have made a “substantial” investment in the U.S. or there must be “substantial” trade between the U.S. and the treaty country. In addition, the offered position must be executive or supervisory, or involve “essential skills.”
• F-1 - The F-1 student visa category permits employment under various circumstances, most commonly through Curricular Practical Training (CPT) or Optional Practical Training (OPT). There is a 12-month limit on OPT unless the person has a designated STEM (Science, Technology, Engineering, or Mathematics) degree and the employer participates in the E-Verify employment verification program, in which case an additional 24 months of post-graduation OPT is available.
• L-1 - The L-1 visa category allows U.S. employers to transfer employees of related overseas entities to work temporarily in the U.S. The U.S. and foreign entities must have a qualifying corporate relationship (parent/subsidiary, affiliate, etc.), the employee to be transferred must have worked for the related entity overseas for at least one year, and the offered position must be managerial/executive or must involve “specialized knowledge.”
• O-1 - The O-1 category is available for persons of extraordinary ability who can document sustained national or international acclaim in their field.

Finally, there are various visa categories available for training that might be useful in certain circumstances. As always, please contact us with any questions.

UPDATE: ​On April 17, 2017, USCIS announced that they received 199,000 H-1B petitions for the fiscal year 2018 H-1B cap.

USCIS also announced that on April 11, 2017, they completed the "random selection process" or lottery to determine which petitions would be considered for further processing under both the 20,000 master's degree slots and the 65,000 "regular" slots.

USCIS will return all submitted petitions that were not selected for further processing.

As described in our original post below, USCIS will continue to accept H-1B petitions that are exempt from the H-1B cap.

USCIS has announced that as of April 7, 2017, they have received enough petitions under both the “regular” cap and the “master’s degree” cap to reach the annual H-1B visa limit for fiscal year 2018. USCIS will now run two computer-generated lotteries: the first to determine which petitions are considered for the 20,000 master’s degree slots, and the second to determine which petitions are considered for the 65,000 “regular” slots. All petitions not selected in the master’s degree lottery will also be eligible for the “regular” lottery. The lottery dates have not been announced.

USCIS will reject petitions subject to the cap for H-1B workers seeking an employment start date between October 1, 2017, and September 30, 2018, that are received after April 7, 2017. No new cap subject H-1B petitions may be filed until April 1, 2018, for employment beginning no earlier than October 1, 2018. USCIS will continue to accept petitions for H-1B workers assigned to Department of Defense projects and petitions for Chilean and Singaporean H-1B1 workers.

It is important to note that the cap applies only to “new” H-1B petitions, i.e. petitions filed on behalf of workers who have never held H-1B status or who have spent one year or more outside the U.S. since last holding H-1B status. Exempt from the cap are extension petitions for workers currently in H-1B status, petitions for current H-1B holders seeking concurrent employment, petitions requesting a change of H-1B employer, and petitions amending a worker’s current H-1B status due to a material change in the terms and conditions of the employment.

In addition, some “new” petitions are exempt from the cap by virtue of the type of petitioner or the type of work being done. These are petitions filed on behalf of a worker who is or will be employed at an institution of higher education or a related or affiliated nonprofit entity, and petitions filed on behalf of a worker who is or will be employed at a nonprofit research organization or a governmental research organization. Petitions for J-1 international medical graduates who have received waivers under the Conrad 30 program are also exempt from the cap.

We will continue to monitor the situation and provide updates as additional details emerge.  Meanwhile, please contact us with any questions.

USCIS has announced that starting April 3, 2017, it will suspend the “premium processing” service for all H-1B petitions.  The suspension could last as long as six months.

The announcement states that this action is necessary so that USCIS can reduce overall processing times for H-1B petitions, which have grown steadily over the past two years and now regularly exceed six months even for routine extensions.

During the premium processing suspension, USCIS will focus on processing long-pending petitions and will prioritize extension petitions for individuals who are nearing the end of the automatic 240-day extension of work authorization following the expiration of their previous petition.

April 3 is also the first day that employers may begin filing fiscal year 2018 H-1B visa petitions for individuals to begin H-1B employment on October 1, 2017. The opening of the H-1B cap is likely a main reason for the premium processing suspension, as USCIS probably expects to receive nearly 250,000 submissions based on last year’s filing volume. Resources that would otherwise have gone toward “premium processing” can now be shifted toward intake and adjudication of H-1B cap filings.

At this time, the “premium processing” suspension affects only H-1B petitions. The “premium processing” service will remain available for all other eligible nonimmigrant visa classifications.
During the suspension period, petitioners may still request an expedite of an H-1B petition. ​USCIS may expedite a​ petition or application if it meets one or more of the following criteria:​

• Severe financial loss to company or ​person​;​
• Emergency situation;​
• Humanitarian reasons;​
• Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States​;​
• Department of Defense or ​​national​ ​interest ​​situation;​
• USCIS error; or​
• Compelling interest of USCIS.​

As always, please contact us with any questions.

UPDATE: On April 12, 2016, USCIS announced that they received over 236,000 H-1B petitions for the fiscal year 2017 H-1B cap.  They also announced that on April 9, 2016, they completed the "random selection process" or lottery to determine which petitions would be considered for further processing under both the 20,000 master's degree slots and the 65,000 "regular" slots.  USCIS will return all submitted petitions not selected for further processing.

As described in our original post below, USCIS will continue to accept H-1B petitions that are exempt from the H-1B cap.

USCIS has announced that as of April 7, 2016, they have received enough petitions under both the “regular” cap and the “master’s degree” cap to reach the annual H-1B visa limit for fiscal year 2017. USCIS will now run two computer-generated lotteries: the first to determine which petitions are considered for the 20,000 master’s degree slots, and the second to determine which petitions are considered for the 65,000 “regular” slots. All petitions not selected in the master’s degree lottery will also be eligible for the “regular” lottery. The lottery dates have not been announced.

USCIS will reject petitions subject to the cap for H-1B workers seeking an employment start date between October 1, 2016, and September 30, 2017, that are received after April 7, 2016. No new cap subject H-1B petitions may be filed until April 1, 2017, for employment beginning no earlier than October 1, 2017. USCIS will continue to accept petitions for H-1B workers assigned to Department of Defense projects and petitions for Chilean and Singaporean H-1B1 workers.

It is important to note that the cap applies only to “new” H-1B petitions, i.e. petitions filed on behalf of workers who have never held H-1B status or who have spent one year or more outside the U.S. since last holding H-1B status. Exempt from the cap are extension petitions for workers currently in H-1B status, petitions for current H-1B holders seeking concurrent employment, petitions requesting a change of H-1B employer, and petitions amending a worker’s current H-1B status due to a material change in the terms and conditions of the employment.

In addition, some “new” petitions are exempt from the cap by virtue of the type of petitioner or the type of work being done. These are petitions filed on behalf of a worker who is or will be employed at an institution of higher education or a related or affiliated nonprofit entity, and petitions filed on behalf of a worker who is or will be employed at a nonprofit research organization or a governmental research organization. Petitions for J-1 international medical graduates who have received waivers under the Conrad 30 program are also exempt from the cap.
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We will continue to monitor the situation and provide updates as additional details emerge.  Meanwhile, please contact us with any questions.

On April 1, 2016, employers may begin filing fiscal year 2017 H-1B visa petitions for individuals to begin H-1B employment on October 1, 2016. Congress places a cap of approximately 65,000 on the number of new H-1B’s available each year. There is also a separate cap of 20,000 new H-1B’s available for individuals who have a master’s degree or higher from a U.S. college or university.

Generally, any petition for an individual who is currently in H-1B status or has held H-1B status within the past six years is not subject to the cap, although there are some rare exceptions. In addition, certain types of employers are exempt from the H-1B cap, such as nonprofit research organizations and nonprofit entities that are affiliated with a U.S. college or university. 

In each of the past few years, USCIS received enough petitions to exceed these caps within the first week, and we expect that the cap will again be reached during the initial filing period this year. Therefore, employers must identify any individuals for whom they might want to obtain H-1B status and file those petitions as early as possible for the best chance at getting one of the available visas. This is particularly critical for any recent graduates who are currently working pursuant to Optional Practical Training (OPT), and for employees who might be nearing the maximum limit on their current status, such as R-1 religious workers or L-1 intracompany transferees.

If you are an employer or potential employee and you have questions about the H-1B cap or the H-1B visa category, please contact us.

​Updating our post from last week (see below), it appears that Congress will soon pass a Continuing Resolution (CR) to temporarily extend budget funding and avoid a shutdown of the Federal government on October 1.

The CR, if passed, will fund the Federal government through December 11, 2015, at which time Congress will need to pass new funding legislation or the government will shut down at that time.

Passage of the CR will at least temporarily alleviate the pressure we and our clients faced with regard to filing and processing critical immigration applications, including Labor Condition Applications (LCAs) for H-1B workers.

Of course, this is only a temporary reprieve, and we will continue monitor this situation as the new December 11 deadline approaches. Meanwhile, if you have any questions, please contact us.

Reports out of Washington, D.C. suggest that there is an increasing possibility that the Federal government will shutdown on October 1, 2015, due to a budget stalemate, as happened in 2013.

We will provide additional guidance as the situation develops, but of immediate concern is the filing of Labor Condition Applications (LCAs) with the Department of Labor (DOL).

During a Federal government shutdown, the Office of Foreign Labor Certification (OFLC) within DOL will not accept or process any applications or related materials. This will include LCAs, which are a prerequisite for H-1B petitions.

Any applications or requests submitted prior to the shutdown and that are still pending as of midnight on October 1, will not be processed and will be held in abeyance until the department resumes operations. No new applications will be accepted after October 1 until the shutdown ends. 
 
The DOL typically takes seven full days to process LCA filings, so it is critical that employers file the required LCA no later than Wednesday, September 23, 2015, to have the best chance of getting the certification back before October 1.

If you have any questions, or if you identify any candidates for H-1B visa processing who will need an LCA filed as soon as possible, please contact us.

We previously informed our readers and clients of the changing obligations on H-1B employers who relocate their H-1B workers to new worksites.  This week, USCIS revised and reissued its policy guidance on how employers must handle H-1B worksite changes, and also extended until January 15, 2016, the “safe harbor” period for notifying of changes that have already occurred.

As background, on April 9, 2015, the USCIS Administrative Appeals Office (AAO) decided that the change of an H-1B worker’s worksite that requires the employer to obtain a new Labor Condition Application (LCA) is a “material change” in the terms of employment that requires the employer to amend the worker’s existing H-1B petition.  Following this decision, USCIS issued an interim policy memo that required amended petitions for workers who had changed work locations before May 21, 2015, to be filed no later than August 19, 2015.

On July 21, 2015, USCIS issued a revised and final policy memo detailing employer responsibilities related to H-1B worksite changes.  The memo requires an H-1B employer to take certain actions depending on when the H-1B worksite changed or will change:

• Change On or Before April 9, 2015 – If the H-1B worksite changed on or before April 9, 2015, the employer may choose to file an amended petition before January 15, 2016.  If the employer does not file a new petition, USCIS will generally not take any new adverse action, such as revocation of the current petition or denial of an extension, due to the failure to file an amendment.  However, USCIS will continue to pursue any adverse actions commenced prior to July 21, 2015.
• Change Between April 9 and August 18, 2015 – If the H-1B worksite changes between April 9 and August 18, 2015, the employer must file an amended petition before January 15, 2016.  If the employer does not file an amended petition within this “safe harbor” period, the employer will be out of compliance with the H-1B regulations, which could result in revocation of the current petition among other penalties for noncompliance.  In addition, the H-1B worker will not be maintaining lawful immigration status and will be subject to adverse action.
• Change On or After August 19, 2015 – If the H-1B worksite changes on or after August 19, 2015, the employer must file an amended petition BEFORE the H-1B worker starts working at the new worksite.  Again, failure to file the required amendment will subject the employer to penalties for non-compliance with the H-1B regulations and, critically, will result in the worker being in out of lawful H-1B status and subject to adverse action, such as denial of a subsequent request for change of status or extension of stay or, in the worst case, removal from the United States.

We strongly suggest that employers carefully review the current work locations for their H-1B workers for any discrepancies between the work location(s) listed on the LCA/H-1B petition and the actual work location.

In addition, because amended petitions must be filed before the worker starts at the new location, it is critical that employers identify potential work location changes as far as possible in advance of the change.  Due to LCA processing times, it takes a minimum of seven business days to prepare and file an H-1B petition, and this time must be taken into account when determining the worker’s start date at the new location

As always, please contact us with any questions.

USCIS has announced that, as of July 13, 2015, it will resume "premium processing" of H-1B extension petitions.

We previously alerted our readers that USCIS had suspended the "premium processing" service for H-1B extensions on May 26, 2015, so that the agency could efficiently implement the H-4 Work Authorization (EAD) rule.

The premium processing suspension was initially scheduled to last through July 27, 2015. However, USCIS received fewer H-4 Work Authorization applications than expected and has determined that it can effectively handle the current H-4 EAD and premium processing workload.

With this announcement, premium processing requests for H-1B petitions requesting an extension of stay for the H-1B worker may be filed concurrently with any petition filed on or after July 13, 2015.

Additionally, employers who filed H-1B extension petitions during the suspension period may "upgrade" those petitions to premium processing as of July 13, 2015.

As always, please contact us with any questions.

USCIS has imposed a new obligation on H-1B employers who relocate their H-1B workers to new worksites, and has imposed a filing deadline to update H-1B petitions for relocations that have already occurred.

In a recent decision, the USCIS Administrative Appeals Office (AAO) held that the change of an H-1B worker’s worksite that requires the employer to obtain a new Labor Condition Application (LCA) is a “material change” in the terms of employment that requires the employer to amend the worker’s existing H-1B petition.

While this is a departure from long-standing, albeit unofficial, agency policy that a change in work location was not a “material change” requiring an amendment, USCIS had been hinting in recent years that this policy was in the crosshairs.  Despite the existence of that generally accepted guidance, we began routinely advising clients to file amendments in this situation long before this recent AAO decision.

Critically, USCIS has announced that it will apply this new obligation retroactively. This means that employers who have already assigned H-1B workers to new worksites will have to file a petition to amend the workers’ H-1B status to reflect the change in work location, even if the change occurred several months ago.

According to recently published USCIS guidance, employers must file amended petitions for workers who changed work locations prior to May 21, 2015, no later than August 19, 2015.  Failure to file the required amendment will subject the employer to penalties for non-compliance with the H-1B regulations and, critically, will result in the worker being in out of lawful H-1B status and subject to adverse action, such as denial of a subsequent request for change of status or extension of stay or, in the worst case, removal from the United States.

We strongly suggest that employers carefully review the current work locations for their H-1B workers and immediately seek to resolve any discrepancies between the work location listed on the LCA and the actual work location.

As always, please contact us with any questions.