Visa Lawyer Blog

Articles Posted in H1B Visas

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Last week our very own managing attorney Jacob Sapochnick, Esq., and associate attorney Yingfei Zhou, Esq. had the pleasure of attending the 2016 American Immigration Lawyers Association (AILA) Conference on Immigration Law in Las Vegas, Nevada. Together, they bring you the most up to date information on the new N-400 online filing system and new N-400 form, the new customer service tool EMMA—a computer-generated virtual assistant, information regarding delays in adjudication of H-1B extension/transfer applications and Employment Authorization applications, filing tips for H-1B extensions, updates on EB-1C Multinational Executive/Manager green cards, Employment Authorization eligibility for spouses of E-2 and L-1 visa holders, and updates on Administrative Appeals Office (AAO) Decisions.

New Naturalization Form and N-400 Online Filing System

  1. USCIS recently published a new N-400 form on 04/13/2016. Applicants may use the previous 09/13/2013 version until 08/09/2016. Any naturalization applications received on or after 08/10/2016 containing the old form with revision date 09/13/2013 will be rejected and returned to the sender.
  1. USCIS is currently testing a new N-400 online filing system. This system will be available to applicants without legal representation and will eventually become available to applicants represented by an immigration attorney.

New Customer Service Tools EMMA

  1. USCIS is introducing a new customer service tool called EMMA – a computer-generated virtual assistant who can answer your questions and even take you to the right spot on the USCIS website. EMMA is USCIS’ version of ‘Siri’ and is designed to help you navigate the USCIS website. EMMA is available in the Spanish language. So far, EMMA has managed to answer 80% of questions asked.

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On May 04, 2016 the Department of Homeland Security published a proposed rule in the Federal Register, announcing that filing fees for many USCIS petitions and applications are expected to increase for U.S. employers and foreign nationals. The proposed regulation stipulates that filing fees may be adjusted for certain immigration and naturalization benefit requests by USCIS. The increase in filing fees was considered after USCIS conducted a comprehensive review of its fees and found that the current fees do not cover the cost of services provided by USCIS. According to USCIS, in an effort to fully recover costs and maintain adequate services, “an adjustment to the fee schedule will be necessary”. According to the regulation, fees for most employment-based petitions and applications would be raised by an average of 21%, though other types of petitions may experience a higher increase in filing fees.

According to DHS, the higher fees will more accurately reflect the current cost of processing immigration applications and petition. A portion of the increased fees would provide additional funding for refugee and citizenship programs as well as system support for interagency immigration status verification databases.  The increase in filing fees will not take effect until the federal government approves the regulation, which is expected to take several months following the close of the 60-day comment period on July 5, 2016.

According to the new fee schedule under consideration, employment-based petitions would be the most impacted by the increase in filing fees. The filing fee for Form I-129, Petition for a Nonimmigrant Worker, would increase by 42% to a fee of $460, from the current rate of $325.  Similarly, the filing fee for Form I-140, Immigrant Petition for Alien Worker, would increase by 21% to a fee of $700, from the current rate of $580. The complete fee schedule under consideration has been provided below for your reference.

The EB-5 Immigrant Investor Visa Program is expected to be the most heavily affected by the new fee schedule. The filing fee for Form I-924, Application for Regional Center Under the Immigrant Investor Pilot Program, would increase by a rate of 186% requiring Regional Centers seeking designation under the program to pay a filing fee of $17,795 instead of the current rate of $6,230. In addition, Regional Centers would be required to pay a $3,035 annual fee to certify their continued eligibility for the designation. Currently, there is no fee in place for annual certification. The filing fee for the I-526 Immigrant Petition by Alien Entrepreneur, an application associated with the EB-5 visa program, would also increase to a rate of $3,675, a 145% increase up from the current rate of $1,500. The filing fee for an investor’s petition to remove conditions on residence would remain unchanged under these new regulations.

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Today May 2, 2016 USCIS announced that data entry for all selected H-1B cap-subject petitions has been completed for fiscal year 2017. Our office expects to receive the final receipt notices of selection for H-1B cap-subject petitions within the next 1-2 weeks. We do not believe that USCIS will be mailing out any more receipt notices for H-1B cap-subject petitions after May 13, 2016. USCIS will begin the process of returning all H-1B cap-subject petitions that were not selected in the random lottery conducted on April 9, 2016. In past years, unselected H-1B petitions have typically been received by our office in the month of June. USCIS recommends that petitioners wait until they have received either a receipt notice or unselected petition in the mail, before contacting USCIS to inquire about the status of a petition. USCIS will issue an additional announcement once all unselected petitions have been returned.

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9152815014_f344695012_zU.S. Citizenship and Immigration Services (USCIS) has announced that premium processing for cap-subject H-1B petitions (Bachelor’s cap and Master’s cap) will begin on May 12, 2016. USCIS had previously announced that premium processing would begin no later than May 16, 2016. During fiscal year 2016, USCIS began premium processing on April 27th. This year there will be a slight delay in premium processing due to the large volume of cap-subject H-1B petitions received for fiscal year 2017. Approximately 3,000 more petitions were received this year, when compared to the previous year. USCIS guarantees a 15-calendar-day processing time for certain employment-based petitions as part of the premium processing service. If you did not submit Form I-907 Request for Premium Processing Service with your initial H-1B petition, and you receive notification that your petition has been accepted, you can upgrade your petition to premium processing at any time by filing Form I-907 with the filing fee.

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As previously reported, the Department of Homeland Security published a new final rule that will allow certain F-1 students with degrees in science, technology, engineering, or mathematics, also known as (STEM) fields, to apply for a 24-month extension of their optical practical training (OPT) program. This new 24-month OPT extension will replace the 17-month STEM OPT extension that had been previously in place since 2008. Eligible students can begin to apply for the new 24-month extension starting May 10, 2016. If you mistakenly apply for a 24-month extension before May 10, 2016 you will receive a 17-month extension.

Applicants should note that the cap gap extension has not changed. Individuals who have filed an H-1B change of status application that is currently pending with USCIS, must keep in mind that their status will only be extended until September 30. It is recommended that selected H-1B participants upgrade their petition to premium processing, so that foreign workers in F-1 status do not experience significant gaps in employment. USCIS will adjudicate STEM OPT applications under the 2008 rules until May 9, 2016. STEM OPT extension applications filed and approved before May 10, 2016 will receive a 17-month extension. If you have a pending application requesting a 17-month STEM OPT extension on May 10, 2016 you will receive a request for evidence asking for additional documentation to satisfy the new rule for the new 24-month extension. We have learned that the SEVIS system will be updated so that I-20’s will reflect 24-month extensions.

Students currently on 17-month STEM OPT

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This week USCIS announced that over 236,000 H-1B petitions were received by the agency for fiscal year 2017 (including petitions for the general cap and advanced degree exemption), compared to last year’s 233,000. Following the close of the filing period, USCIS conducted a random computer-generated lottery on April 9, 2016 beginning the selection process for the 20,000 available visas for advanced degrees first. Unselected advanced degree petitions were then placed in the lottery to fill the 65,000 general cap. Foreign workers holding an advanced degree from the United States were thus given two chances at selection. Any petitions that were not selected by USCIS will be returned along with official rejection notices, and original filing fees. This year, our office filed 15 advanced degree petitions and 40 bachelor’s cap petitions for a total of 55 H-1B petitions. Of these petitions, 46 were filed with regular processing, and 15 were filed with premium processing. The majority of these petitions were filed with the California Service Center.

As of this afternoon, we have only received 4 selection emails from the California Service Center (CSC) for advanced degree petitions filed with premium processing, and only 1 selection email for a bachelor’s cap petition filed with premium processing. We do not expect to receive any ‘receipt notices’ for petitions filed with regular processing until late April through the month of May. At this point, it does not appear that USCIS has begun cashing filing fees for selected petitions. If the filing fees for your H-1B petition have not been cashed, this does not mean that your H-1B petition was not selected. It is too early to make this conclusion. Employers should monitor their bank accounts closely within the next 2-4 weeks.

This year, USCIS received approximately 3,000 more petitions compared to last year. As in previous years, the H-1B cap was reached within the first five business days of the H-1B filing period. This year the chances of selection ran at roughly 65% for foreign workers holding a U.S. advanced degree, and roughly 35% for foreign workers holding a bachelor’s degree. Last year, the chances of being selected was about 60% for advanced degree holders, and 30% for bachelor’s degree holders.

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Today April 7, 2016 the U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B general bachelor’s cap has been reached for fiscal year 2017. In addition, USCIS received more than 20,000 petitions for the advanced degree exemption. Some time within the next week, USCIS will conduct a random computer-generated process, known as a ‘lottery,’ to select the petitions needed to fill the 65,000 bachelor’s cap. USCIS will first randomly select the petitions that will count toward the advanced degree exemption. Unselected advanced degree petitions will then be entered into the random lottery that will be conducted to fill the 65,000 bachelor’s cap. All unselected cap-subject petitions will be rejected and in turn CIS will return the H-1B packages containing filing fees and rejection notices. CIS has not yet provided any details concerning the date the lottery will be conducted. We suspect it will occur within the next week. In the meantime, cap exempt H-1B petitions will continue to be processed including H-1B worker extensions, petitions requesting a change to the terms of an H-1B workers’ employment, and petitions requesting concurrent work for an H-1B worker.

So, what’s next?

Petitions filed with premium processing

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On behalf of our law firm we would like to extend our best wishes to everyone applying for an H-1B visa this season. The H-1B visa is limited. Every year thousands of employers file these visas on behalf of foreign workers to fill specialty occupations.

The issuance of H-1B visas is limited to 65,000 per year. Individuals holding advanced degrees from the United States (master’s degree or higher) have a greater opportunity of being selected, however only the first 20,000 petitions received for individuals holding advanced degrees will  be exempted from the cap. Petitions received in excess of 20,000 will count toward the regular Bachelor’s cap.

Today, April 1st, is the first day that USCIS will begin accepting applications for H-1B professional worker visas.

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It is a busy time of the year for the Law Offices of Jacob J. Sapochnick, as we begin to box up and ship out the hundreds of H-1B petitions that will count toward the cap for fiscal year 2016. Tomorrow marks the very first day that H-1B petitions will begin to be accepted by USCIS. If your H-1B petition will not be received by USCIS on the very first day of the H-1B filing season (April 1st) do not fret. USCIS will continue to accept H-1B petitions through the first five business days of the filing season until the cap has been met. Receipt of your H-1B petition on April 1st does not guarantee that your application will be chosen in the randomized lottery. In fact, we have had clients file at the very last minute who have ended up being chosen in the cap. During the next few days, USCIS will carefully monitor the amount of H-1B petitions that are received and make an announcement once the cap has been met. Once the announcement has been made, no more petitions will be accepted for the lottery. Petitions received in excess of the cap will be rejected by USCIS. Employers will know that their H-1B petition has been chosen in the lottery if they receive a ‘notice of receipt’ in the weeks following the randomized selection process. Last year, receipt notices for H-1B petitions, filed without premium processing, started coming into our office in late April, while rejection notices did not appear until mid to late June. Petitioners may opt for premium processing to expedite the notification process. Although it is very easy to get lost in the chaos of H-1B season, it is important not to lose sight of what’s important this filing season.

To help ease your anxiety this H-1B season we are providing you with our last minute filing tips:

  1. Employer’s Financial Obligations: Employers must be prepared to pay their workers at least the Prevailing Wage based on the employee’s occupation and actual place of employment. Employer’s must understand their obligation to honor this financial commitment during the time the employee is working for the employer in H-1B status. Failure to do so can have serious consequences for the employer;
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Every year USCIS receives and adjudicates approximately 6 million applications from foreign nationals seeking to immigrate to the United States, and U.S. companies seeking to employ foreign workers temporarily.  According to the Department of Homeland Security’s Office of Immigration Statistics, “an estimated 13.1 million lawful permanent residents (LPRs) were living in the United States on January 1, 2013.” Of these permanent residents, more than half–8.8 million–were eligible to apply for naturalization. Additionally, the United States issues approximately 700,000 temporary non-immigrant work visas for a variety of temporary workers including: highly skilled foreign workers employed in specialty occupations in the STEM fields, fashion models, internationally acclaimed athletes and entertainers, aliens of extraordinary ability, religious workers, intra-company transferees, treaty traders/investors, foreign media workers, and agricultural and seasonal workers.

The reason the issuance of temporary worker visas is so low, when compared to the issuance of permanent resident cards, is because most of the temporary foreign worker visa programs are subject to a congressional cap, that limits the amount of non-immigrants that can be admitted per fiscal year. Additionally, certain temporary nonimmigrant worker visa classifications are granted for a specified period of time, although in most cases at least one extension may be granted. The cap applies primarily to the H nonimmigrant worker classifications, and non-minister religious workers. The H visa category accounts for approximately 54% of all visas issued for temporary workers. That is why the H visas are the most talked about visas among politicians when discussing immigration reform. The cap does not apply to treaty traders/investors, aliens of extraordinary ability, intra-company transferees, NAFTA professionals (Canada and Mexico), and foreign media workers. In comparison to developed countries, the United States admits a relatively low number of temporary foreign workers. Foreign workers are typically admitted either to fill labor shortages in the American job market, or because of their exceptional, or highly technical skills, as is the case for the H-1B visa classification.  Only highly skilled foreign nationals, aliens of extraordinary ability, aliens holding advanced degrees, high capital investors, nurses and physical therapists, doctors in undeserved area, and recipients of national interest waivers, have the unique opportunity to obtain permanent residence based on employment.

The mammoth task of meaningful immigration reform will not be easy and it will not happen overnight. The presidential nominees have failed to outline a clear strategy to overhaul our immigration system. None of the presidential candidates have addressed the most contentious areas of immigration policy that must be revised, in order to repair our broken immigration system.

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