Immigration Blog Luba Smal Attorney at Law - Smal Immigration Law Office

USCIS Reached H-1B Visa Cap for 2024

12/13/2023

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) 2024.
USCIS will send non-selection notices to registrants through their online accounts over the next few days. When we finish sending these non-selection notifications, the status for properly submitted registrations that we did not select for the FY 2024 H-1B numerical allocations will 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 2024 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. We encourage H-1B petitioners to subscribe to the H-1B cap season email updates by visiting the H-1B Cap Season page.

F1 to H1B Cap-Gap Status and Work Authorization Extension Valid Only to Sep 30 2018

9/30/2018

F-1 students who have an H-1B petition that remains pending on Oct. 1, 2018, risk accruing unlawful presence if they continue to work on or after Oct. 1 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization is only valid through Sept. 30. USCIS may not be able to adjudicate H-1B change of status petitions for all F-1 students by October 1, 2018.

USCIS 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 Oct. 1, to have his or her F-1 status and any current employment authorization extended through Sept. 30. This is referred to as filling the “cap-gap”, meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur. The “cap-gap” period starts when an F-1 student’s status and work authorization expire, and they are extended through Sept. 30, with Oct. 1 being the requested start date of their H-1B employment, unless otherwise terminated or the H-1B petition is rejected or denied prior to October 1, 2018.

While the temporary suspension of premium processing of certain types of H-1B petitions has allowed USCIS to prioritize the adjudication of these cap-gap cases, if a cap-gap H-1B petition remains pending on or after October 1, 2018, the F-1 student is no longer authorized to work under the cap-gap regulations. However, the F-1 student generally may remain in the United States while the change of status petition is pending without accruing unlawful presence, provided they do not work without authorization. If an F-1 student with a pending change of status petition has work authorization (such as an I-765 with valid dates) that extends past Sept. 30, they may continue to work as authorized.

Premium Processing Fees Increase and Temporary Suspension

9/13/2018

Effective October 1, 2018, Department of Homeland Security will increase the premium processing fee charged by USCIS from $1,225 to $1,410.

USCIS is authorized to charge a premium processing fee for certain employment-based petitions and applications. Premium processing allows filers to request 15-day processing of certain employment-based immigrant benefit requests if they pay an extra amount. Currently, premium processing is authorized for certain petitioners filing Form I-129 Petition for a Nonimmigrant Worker, or Form I-140 Immigrant Petition for Alien Worker.

While premium processing is temporarily suspended for H-1B through February 19, 2019, petitioners may submit a request to expedite an H-1B petition if they meet one of the following Expedite Criteria and are prepared to submit documentary evidence to support their expedite request:

Severe financial loss to company or individual
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 submitted by an official U.S. government entity and that delay will be detrimental to the government
USCIS error
Compelling interest of USCIS

This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I-129.

With respect to H-1B petitions, USCIS has suspended premium processing for both cap-subject petitions and most other H-1B petitions.

Beginning September 11, 2018, and continuing through February 19, 2019, H-1B petitions cannot be filed utilizing premium processing, except for the following types of cases:

Cap-exempt petitions filed with the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity, or organization; or
Petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer.” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a concurrent request to:
1. Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box 2 on Part 2, Question 4, Page 2 of the current Form I-129); or
2. Extend the stay of the beneficiary because the beneficiary now holds this status. (Box c on Part 2, Question 4, Page 2 of the current Form I-129).

FY 2019 H-1B Visa Update

4/23/2018

This year USCIS received total of 190,098 cap subject H-1B work visa petitions for the next fiscal year, FY 2019. The annual quota (cap) was reached on April 6, 2018.

--> 94,213 of the H-1B petitions are for general cap (cap is 65,000).
--> 95,885 of the H-1B petitions are master's cap (cap is 20,000).

It will take several weeks for USCIS to complete the H-1B notification process for cases selected in the lottery. USCIS will mail back rejected petitions, filing fees, etc starting from the end of April till July 2018.

USCIS had warned that the petitioners/employers can't file multiple or duplicative H-1B petitions for the same employee. USCIS will deny or revoke multiple or duplicative petitions filed by an employer (including its related entities) for the same H-1B worker and will not refund the filing fees.

Read here.

FY 2019 H-1B Visa Cap Reached on April 6 2018

4/6/2018

USCIS started accepting H-1B work visa petitions for the NEXT 2019 fiscal year on April 2, 2018, and on April 6, 2018 -- the ANNUAL cap has been reached!

It took only 4 days for both caps to be reached: general cap (65,000) and for those with the U.S. advanced degrees (master's cap, 20,000).

USCIS has reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2019. USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, known as the master’s cap.

USCIS will REJECT and RETURN filing fees for all unselected cap-subject petitions that are not prohibited multiple filings. (Please note: rejection is not a denial).

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, will also not be counted toward the FY 2019 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 a second H-1B position.posted

USCIS announcement.

New Policy: No Deference to Prior Determinations of Eligibility in Petitions for Extension of Nonimmigrant Status

11/3/2017

On October 23, 2017, another long-standing USCIS adjudication policy was reversed. When filing for an extension of the non-immigrant status, for example, H-1B work visa, you should not take for granted any prior approvals. An applicant has to prove his/her eligibility again when applying for an extension of the same status, even if status was approved before. USCIS will no longer defer to prior approvals.

October 23, 2017 Policy Memorandum "Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status" is available at USCIS webportal.

As a result, USCIS made it more difficult for companies to renew H-1B visas for foreign professionals (workers) who work in specialty occupations. Previously, when it was time to renew an H-1B employee’s status, the USCIS gave deference to past H-1B approval decisions. This enabled H-1B visa holders to obtain extensions in a fast and straightforward manner. USCIS recently rescinded (canceled) their old policy memorandum, and now H-1B visa holders who apply for extensions must again prove eligibility as though they are seeking H-1B visas for the first time.

This policy change will impose greater uncertainty, loss of foreign talent (who may choose to migrate to Canada instead), higher costs and delays to companies who rely on foreign talent.

USCIS is directing officers to use the same amount of scrutiny for initial and extension requests, and indicating that the new guidance applies to a variety of employment visas, not just H-1B.

It is expected that employers will be receiving many detailed Requests for Evidence (“RFE”) when H-1B extension requests are filed. These RFEs will increase the administrative and legal burden on employers seeking H-1B visas, and increase the costs.

Effective October 1, 2017, USCIS also imposed a new rule requiring in-person interviews with all employment-based immigrant visa applicants, including spouses and children, which will burden local USCIS offices and increase wait time for all green card categories waiting for an adjustment of status interview.

H-1B visas are valid for a total of six years and are usually issued in three-year increments. To prepare for the new renewal process, H-1B employers should initiate the renewal process far enough in advance to secure an extension before an H-1B employee’s status expires.

USCIS October 23, 2017 memo.

H-1B Work Visa New USCIS Policies April 3 2017: Computer Programming, Fraud Detection

4/10/2017

There have been several important announcements and policy changes concerning H-1B work visa.

First: On April 3, 2017, USCIS announced that it would introduce several new measures with intent of detecting and deterring H-1B visa fraud and abuses. According to an official USCIS press release, USCIS will be conducting site visits to H-1B petitioners and worksites, where

(i) USCIS cannot validate the employer’s basic information through commercially available data;
(ii) H-1B dependent employers (companies with high ratio of H-1B workers as compared to U.S. workers: companies with 25 or fewer full-time employees, more than 7 H-1B workers; companies with 26-50 full-time employees, more than 12 H-1B employees; and companies with 50 or more full-time employees, 15% or more H-1B employees); and,
(iii) employers petitioning H-1B workers who work off-site.

The site visits have been around since 2009. It's not something new. USCIS emphasized that these site visits will be random and unannounced, and are meant to identify companies that abuse the H-1B system.

USCIS established an email address, which allows the public to submit tips, alleged violations and other information about potential H-1B abuse. The employers that are reported via this email address will also become targets for site investigations.

Second:

On March 31, 2017, the U.S. Citizenship and Immigration Services (“USCIS”) issued a new Policy Memorandum made available April 3, 2017, which rescinds the December 22, 2000 memorandum titled “Guidance memo on H1B computer related positions.”

The new policy implements a significant change to the adjudication of H-1B petitions for computer programming positions.

2017 H1B Policy Changes and Updates: The December 22, 2000 memorandum titled “Guidance memo on H-1B computer related positions” provided the policy that most computer programmers had a bachelor’s degree or higher based on information provided by the Occupational Outlook Handbook (“OOH”), which is published by the Department of Labor. Petitioners were usually able to meet their burden of proving a particular position is a specialty occupation, if it were to prove through information provided in the OOH that a baccalaureate or higher degree is normally the minimum requirement for entry into the particular position. By rescinding the policy, USCIS has stated that the OOH is no longer sufficient evidence to prove a particular position in computer programming is a specialty occupation and has thus drastically changed how H-1B petitions for computer programmers are to be adjudicated.

Petitioner's Burden of Proof: The consequence of rescinding the “Guidance memo on H1B computer related positions” is that USCIS has heightened the burden for petitioners. Petitioners may not rely solely on the OOH to prove that a position in computer science is normally required. Rather, USCIS has clarified its position that petitioners must provide additional evidence to establish that the particular position is a specialty occupation as defined by 8 CFR 214.2(h) (4) (ii) for computer programming.

Entry-Level Positions in Computer Related Positions: The Policy Memorandum clarifies that USCIS must determine whether the attestations and content of the LCA correspond to and support the H-1B visa petition. A petitioner’s designation that a position is a Level I, entry-level position “would likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.” USCIS is changing a long established tradition, by clarifying that most entry-level positions are not specialized occupations within the computer programmer occupation. This provides a basis to deny many of the now pending petitions, filed in April 2017 for the FY 2018.

Put American Workers First Approach in Tech Companies: It appears restricting H-1B visas is part of the current administration’s attempt to “put American workers first.” As technology continues to grow, the job of a computer programmer was in the top 5 H-1B job titles for the FY 2017 H-1B petitions.

Last Minute Policy Change Published on the First Day of the FY 2018 Filing Period for H-1B: The Policy Memorandum is dated March 31, 2017, but only made available April, 3, 2017, as a result, many of the new H-1B petitions have already been filed following the long-established standards of the now “outdated” USCIS 2000 guidance memo. Employers can now expect to receive RFE (Requests for Evidence) questioning eligibility and requesting additional documentation, and many petitions can be denied.

USCIS allows only 5 days a year in April to file new, cap-subject H-1B petitions for the next fiscal year. In 2016 for FY 2017, 236,000 H-1B visa applicants competed for the 85,000 quota available annually.

@ BCCL 2017. H-1B visa path

USCIS Temporarily Suspends Premium Processing for All H-1B Petitions Effective April 3 2017

3/3/2017

Update: March 05 2017:

Major changes are expected in H-1B work visa program, either by the president's executive order or by the act of Congress, or both. A new bill was introduced in Congress. And DHS had already suspended Premium Processing for all H-1B I-129 applications file on April 3, 2017.

Read a detailed overview here.

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USCIS published the following announcement:

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 will not be able to 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.

We 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, we 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, we will have to reject both forms.

We 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, we will refund the premium processing fee if:

The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
We 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.

Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and we encourage petitioners to submit documentary evidence to support their expedite request.

As a rule, 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 (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
USCIS error; or
Compelling interest of USCIS.

We review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.

Why We Are Temporarily Suspending Premium Processing for H-1B Petitions

This temporary suspension will help to reduce overall H-1B processing times. By temporarily suspending premium processing, we will be able to:

Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.