Visa Lawyer Blog

Articles Posted in H1B Visas

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During December of last year, the United States Citizenship and Immigration Services (USCIS), announced that the agency was beginning to take preliminary steps to terminate H-4 Employment Authorization for certain H-4 spouses, a privilege that has been available to eligible spouses of H-1B nonimmigrant workers since 2015. As it stands, the 2015 H-4 EAD rule allows certain H-4 dependent spouses of H-1B nonimmigrant workers the ability to obtain an employment authorization card (work permit), provided the H-1B nonimmigrant worker is in the process of obtaining an employment based green card.

Proposal to Amend the 2015 H-4 EAD Rule

On December 14, 2017, a rulemaking notice was first published in the Federal Register notifying the public that the Department of Homeland Security, in conjunction with USCIS, would be reviewing and possibly amending the 2015 H-4 EAD rule, following the issuance of Executive Order 13788, “Buy American, Hire American.”

According to the notice published in the Federal Register, DHS reserves the authority to amend the 2015 H-4 EAD rule under section 102 of the Homeland Security Act of 2002 and section 103(a) of the Immigration and Nationality Act (INA). These sections of the law give the Secretary of the Department of Homeland Security the discretionary power to amend the law so that it aligns with the policies set out in the President’s executive order.

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Now is the time to begin preparing for the upcoming H-1B visa lottery. USCIS will begin to accept H-1B cap-subject petitions for fiscal year 2019 beginning Monday, April 2, 2018. Please note: employers cannot file an H-1B petition for an employee more than 6 months before the employee’s intended start date. If accepted, H-1B visa workers can begin employment by October 1st. The H-1B visa is issued for up to three years but may be extended for another three years.

By law, a congressionally mandated cap exists which limits the issuance of H-1B visas to 65,000 per year. That is why the H-1B visa is commonly referred to as a ‘lottery’ visa.

Individuals (such as F-1 students) who hold advanced degrees (U.S. master’s or higher) are exempted from the 65,000 visa cap. Such applicant’s must demonstrate that they have obtained an American master’s degree or higher to be exempted from the cap, however only the first 20,000 petitions received by USCIS will benefit from this cap exemption. Initial H-1B petitions that are received by USCIS after that limit will count towards the regular 65,000 cap.

In order to qualify for an H-1B visa:

  • a foreign worker must possess both a theoretical or practical application of a body of highly specialized knowledge;
  • an employer-employee relationship must exist. Only a U.S. employer can petition the entry of a foreign employee by filing USCIS Form I-129 Petition for Non-immigrant Worker. An employer-employee relationship exists if the U.S. employer has the right to hire, pay, fire, supervise or control the work of the employee;
  • the foreign worker must possess a bachelor’s degree, its foreign equivalent, or relevant work experience. If the foreign worker does not have formal education, but has at least 12 years of relevant work experience related to the specialty occupation, they may still qualify for an H-1B visa;
  • the foreign worker must be employed in a specialty occupation related to their field of study. A specialty occupation is an occupation that requires a bachelor’s degree or its equivalent;
  • the foreign worker must be paid at least the prevailing wage for the specialty occupation in the area of intended employment;

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In this post, we bring you information regarding the major provisions of the Immigration Innovation Act of 2018 affecting H-1B workers and employment-based immigrants. The Immigration Innovation Act of 2018 is a piece of legislation that was recently introduced before Congress by Republican Senators Orrin Hatch and Jeff Flake on January 25, 2018.

Much of the legislation centers around the H-1B visa worker program.

The major provisions of the Immigration Innovation Act currently being proposed in Congress are as follows:

Increases the number of H-1B visas available. Section 101 of the legislation would raise the current 65,000 H-1B statutory visa cap to 85,000 with 20,000 of those visas to be set aside for applicants possessing a U.S. Master’s and above. This provision includes a market escalator up to 195,000 and de-escalator that is based on prior fiscal years, but not lower than the statutory base. 

Exemption for U.S. Masters. Section 101 includes a provision that creates an unlimited number of exemptions for individuals with a U.S. Master’s degree or above if the U.S. employer attests that it will begin green card processing for the beneficiary within one year.

H-1B Prioritization. Per Section 101, the H-1B visa lottery would be prioritized as follows in fiscal years where enough petitions have been received within the first 5 business days of the filing period of reaching the cap:

  • Individuals with a U.S. Master’s, or higher who are subject to the numerical limitations
  • Individuals who have earned a doctoral degree outside of the U.S.
  • Individuals who have earned a U.S. Bachelor’s degree or higher in a STEM field and
  • Other petitions

Penalties for Failure to Withdraw. Section 101 proposes monetary penalties and debarment for employers who have 5 or more cap-subject petitions approved in a fiscal year, where the visa holder works in the U.S. less than 25% during the first year of approval. In cases involving higher volume users where at least 20 H-1B petitions have been approved in a fiscal year the employer may not avoid penalties even if they withdraw a percentage of approved petitions.

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Since President Donald Trump was elected to the office of the Presidency, a lot has changed in immigration law. From the very beginning, President Trump set out to shatter the status quo with his infamous campaign slogan “Make America Great Again” and immigration was one of the targets. With the help of his campaign advisers and his larger than life personality, President Donald Trump, defeated his biggest political rival, the famed career politician Hillary Clinton. Throughout his campaign it became clear that the Donald Trump persona was not simply made for TV. Whether you agree with his policies or not, Donald Trump has proven that he is a force to be reckoned with.

As Americans headed to the polls on that fateful morning on November 8th there was a tinge of uncertainty in the air—even an odd sense of silence. For those that disagreed with President Trump’s policies, the choice was clear, but for those that had endured eight years under Barack Obama, an unfamiliar face in politics was the answer. Everyone knew Donald Trump as a wealthy real estate mogul with an affinity for the spotlight, but few knew what Donald Trump would be like as a politician, let alone President of the United States. Despite the criticism, Donald Trump became a national phenomenon, capturing the hearts and minds of the American people with his no nonsense approach to politics, and his appeal to a large and growing conservative base. From the very beginning of his presidency, Donald Trump set out to become one of the most unconventional Presidents of the modern era, using his preferred method of Tweeting to reach the American people. Although his administration is only a year old, it has been marred with scandals, dozens of firings, resignations, and abrupt departures.

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Over the course of the last few weeks, our attorneys have uncovered a disturbing trend in the adjudication of H-1B petitions (both cap subject and cap-exempt) that were upgraded to premium processing service in late October through November.

As previously reported on our blog, the United States Citizenship and Immigration Services (USCIS) has been aggressively issuing requests for evidence across the board for all H-1B petitions regardless of occupation and regardless of whether the beneficiary is seeking an H-1B visa for the first time, or an extension of their status. This drastic change was prompted in part by the enforcement of the President’s executive order “Buy American, Hire” in which the President called on the service to “ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” The result was that USCIS began to issue requests for evidence focusing on the beneficiary’s wage level, questioning the petitioner regarding why the beneficiary was being paid the entry level wage, instead of a higher wage if the beneficiary’s occupation was to be considered complex.

Premium Processing Upgrades

To add insult to injury, as of late, USCIS has been issuing a huge wave of denials for H-1B cases that were recently upgraded to premium processing. In the past, it was commonplace for H-1B petitions to be upgraded to premium processing, even where a response to a request for evidence was under review by USCIS. This fiscal year, however, was a bit different than previous years, because premium processing was suspended for all H-1B petitions on April 3rd. Premium processing finally re-opened for cap-subject petitions on September 18, 2017, and for all H-1B petitions on October 3, 2017.

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The Trump administration has taken its first step toward dismantling the International Entrepreneur Rule, an Obama era program that would have given thousands of foreign entrepreneurs the opportunity to travel to the United States for a 30-month period, for the purpose of starting or scaling their start-up business enterprise in the United States.

On November 17, 2017, the Trump administration sent a notice to the Office of Management and Budget (OMB) to officially end the International Entrepreneur Rule. This notice appeared on the website of the Office of Information and Regulatory Affairs as early as Friday. At this time, the Trump administration is finalizing a draft to officially rescind the rule. Once the administration has finished reviewing the draft, it will be published in the Federal Register. It is expected that the draft to rescind the rule will be published within the next week.

After publication, a public notice and comment period will follow, as required by the Administrative Procedure Act, a process by which the government invites the public to comment on a proposed version of a government rule published in the Federal Register. Once the comment period has ended, the government responds to comments, considers feedback, and decides whether such feedback will have any influence on their decision to rescind the rule.

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Unsurprisingly, this week we learned that the Trump administration is taking further steps to toughen the process of applying for an H-1B visa extension/renewal request, and that of other highly sought-after non-immigrant work visa types filed using Form I-129 Petition for Nonimmigrant Worker such as the H, O, P, L, and R work visas. The news comes as part of the President’s ongoing plan to prioritize the employment of American workers over foreign workers, outlined in the President’s Executive Order “Buy American, Hire American.”

On October 23, 2017, the United States Citizenship and Immigration Services (USCIS) announced that the agency will be updating its adjudication policy “to ensure petitioners meet the burden of proof for a non-immigrant worker extension petition.” The change in policy specifically provides that USCIS officers will “apply the same level of scrutiny to both initial petitions and extension requests” for the H-1B visa as well as other nonimmigrant visa types.

Per USCIS, this policy will now apply to “nearly all non-immigrant classifications filed using Form I-129 Petition for Nonimmigrant Worker.” This means that all nonimmigrant worker visa renewal requests, made using Form I-129, will be subject to the same level of scrutiny that was applied during the foreign worker’s initial non-immigrant work visa request.

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Premium Processing Resumes for all H-1B Petitions

Today, October 3, 2017, the United States Citizenship and Immigration Services (USCIS) made an official announcement letting the public know that premium processing service has resumed for all types of H-1B petitions including H-1B extension of stay petitions.

What is premium processing?

Premium processing service refers to an optional premium processing service offered by USCIS to employers filing Form I-129 (Petition for a Non-immigrant Worker) or Form I-140 (Immigrant Petition for Alien Worker). Premium processing guarantees 15 calendar day processing to petitioners who make use of the service. Applications that are not processed within 15 calendar days, receive a refund of the $1,225 premium processing fee. To make use of the service, petitioners must file Form I-907 with their application and include the appropriate fees. The I-907 request for premium processing service can be filed together with an H-1B petition or separately pending a decision. This service has now resumed for all types of H-1B petitions.

For more information on premium processing please click here.

New I-765 Form Allows Applicants to Apply for SSN without visiting SS Office

On October 2, 2017, USCIS announced a new partnership with the Social Security Administration which will allow certain foreign nationals to apply for employment authorization and a social security number using the updated Form I-765 Application for Employment Authorization, without having to visit the Social Security office. In order to obtain lawful employment in the United States, foreign nationals are required to apply for an employment authorization card from USCIS, and a Social Security number with the Social Security Administration. Both are required to engage in lawful employment in the United states. Employment Authorization Cards are accepted as valid employment documentation by U.S. employers, the Social Security Administration, and all federal agencies including the Department of Motor Vehicles.

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Today, September 18, 2017, the United States Citizenship and Immigration Services (USCIS), announced that the agency will be resuming premium processing for all H-1B visa petitions subject to the fiscal year 2018 cap. This means that petitioners who filed an H-1B cap subject petition or H-1B cap exempt petition (for the advanced degree exemption) subject to fiscal year 2018, may upgrade to premium processing starting today.

USCIS previously announced that the agency had resumed premium processing of H-1B petitions filed under the Conrad 30 waiver program, as well as interested government agency waivers, and certain cap-exempt H-1B petitions.

Premium processing for all other H-1B petitions including extensions of stay will remain temporarily suspended. USCIS will announce when premium processing will resume for other remaining H-1B petitions not subject to the fiscal year 2018 cap. Petitioners who cannot file for premium processing may request for their petitions to be processed expeditiously, however such requests will only be granted on a discretionary basis.

What is premium processing?

Premium processing service refers to an optional premium processing service offered by USCIS to employers filing Form I-129 (Petition for a Non-immigrant Worker) or Form I-140 (Immigrant Petition for Alien Worker). Premium processing guarantees 15 calendar day processing to petitioners who make use of the service. Applications that are not processed within 15 calendar days, receive a refund of the $1,225 premium processing fee, and are processed expeditiously. To make use of the service, petitioners must file Form I-907 with their application and include the appropriate fees. The I-907 request for premium processing service can be filed together with an H-1B petition or separately pending a decision. The service is only available for pending petitions with USCIS.

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Great news for cap-exempt H-1B applicants! Effective immediately, the United States Citizenship and Immigration Services (USCIS) will resume premium processing services for certain cap-exempt H-1B petitions.

As you may recall in early April, USCIS temporarily suspended expedited processing of all H-1B petitions to reduce H-1B processing times and prioritize processing of H-1B extensions nearing the 240-day mark.

Today, July 24, 2017, USCIS announced that certain cap-exempt H-1B petitioners can now take advantage of premium processing services.

Please note that H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program are not affected by the suspension.

What is premium processing?

Premium processing service refers to an optional premium processing service offered by USCIS to employers filing Form I-129 (Petition for a Non-immigrant Worker) or Form I-140 (Immigrant Petition for Alien Worker). Premium processing guarantees 15 calendar day processing to petitioners or applicants who make use of the service. Applications that are not processed within 15 calendar days otherwise receive a refund of the $1,225 premium processing fee. To make use of the service, petitioners or applicants must file Form I-907 with their application and include the appropriate fees. The I-907 request for premium processing service can be filed together with an H-1B petition or separately pending a decision.

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