USCIS has completed the H-1B cap random selection process. On April 11, USCIS used a computer-generated random selection process, “lottery”, to select enough H-1B petitions to meet the 65,000 congressionally-mandated cap and the 20,000 Masters cap under the advanced degree exemption. USCIS announced that 190,098 H-1B petitions were received in this filing period. For Fiscal Year 2018, 199,000 H-1B petitions were received during the filing period. Continue reading
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.
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.
USCIS encourages H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2019 Cap Season page.
USCIS issued a new policy memo on March 23rd, addressing the prohibition on multiple H-1B filings. Based on this policy guidance, USCIS will deny or revoke the approval of all cap-subject H-1B petitions filed by “related entities” for the same beneficiary absent a legitimate business need. Continue reading
On March 20th, USCIS announced that Premium Processing will be suspended for all Cap-Subject H-1B petitions filed in the lottery for Fiscal Year 2019 (FY2019). This is expected to last until September 10, 2018. Premium Processing allows for adjudication of a petition within 15 days of receipt of Form I-907 and associated fees as opposed to normal processing times that can exceed 6 months. If a Request for Evidence (RFE) is received, USCIS will issue a decision within 15 days from receipt of the employer’s RFE response.
The suspension of premium processing can have a negative impact on F-1 Optional Practical Training (OPT)* students whose petitions are selected in the lottery and whose OPT will expire prior to October 1st. Here’s why: Continue reading
USCIS just announced that it will SUSPEND Premium Processing for all Cap Subject H-1B petitions filed in the lottery for Fiscal Year 2019 (FY2019). This is expected to last until September 10, 2018. Continue reading
The current annual cap as set by Congress for new H-1B petitions is 65,000 (regular cap). An advanced degree exemption is available for the first 20,000 petitions filed for an individual who has obtained a U.S. Master’s degree or higher. This is commonly referred to as the “Master’s cap.”
If the cap is reached within the first 5 days of the new filing season, USCIS will stop accepting petitions and a computer-generated random selection process, also called the “lottery”, will be used to select petitions. Those with U.S. Master’s degrees are at an advantage because they essentially receive 2 shots in the lottery process.
The lottery system will first be conducted for the advanced degree exemption petitions (Master’s cap). Any petitions filed and not selected for those with a U.S. Master’s degree or higher will count against the regular cap.
Just because you have a U.S. Master’s degree does not always mean you are eligible to apply in the Master’s cap. Here’s why: Continue reading
On April 2nd, 2018, USCIS will begin accepting new H-1B petitions subject to the cap for Fiscal Year 2019 (FY2019). If you plan to hire a professional, foreign worker, preparation for the H-1B visa process should begin now. Based on last year’s numbers where USCIS received 199,000 H-1B petitions during the filing period, the cap will most certainly be reached in the first week of April 2018. If you miss the opportunity to file a new H-1B petition this year, you will not have the opportunity to file until April 2019. Continue reading
UPDATE FROM AILA 01/09/2018
“In a news update on January 8, 2018, the McClatchy DC news service reported
that the U.S. Citizenship and Immigration Services (USCIS) has stated that it not considering a
regulatory change to the H-1B extension rules, as had previously been reported in a December 30,
2017 article by McClatchy DC. In particular, USCIS stated to McClatchy DC that the agency is
not considering changing its interpretation of section 104(c) of the American Competitiveness in
the Twenty-First Century Act (AC21), which provides for H-1B extensions beyond the six-year
limit for H-1B workers who have reached certain milestones in the green card process. USCIS
went on to note that “such a change would not likely result in these H-1B holders having to leave
the United States because employers could request extensions in one-year increments under
section 106(a)-(b) of AC21 instead.” USCIS did, however, indicate that the agency is considering
a number of policy and regulatory changes to carry out the President’s Buy American, Hire
American” executive order, including conducting a “thorough review” of employment-based visa
Over the last few days, news has spread regarding potential new regulations that could greatly impact H-1B extensions beyond the 6 year limitation. The word around town is that the Department of Homeland Security (DHS) has discussed the idea to stop H-1B extensions beyond the 6 year limit based on certain language found under the law. Continue reading
One of the prerequisites to filing a PERM Labor Certification is to have a prevailing wage determination issued by the Department of Labor’s National Prevailing Wage Center (NPWC). The prevailing wage is the average wage paid to similarly employed workers in a specific occupation in the area of intended employment. Among other things, the wage rate is based on the position title, the position description and minimum requirements, and the area of intended employment.
Upon submission of a prevailing wage application, we provide a Standard Occupational Classification (SOC) for the PERM position – the best match wins! The NPWC takes our “suggestion” into consideration, but they ultimately decide what classification the position falls under. Issues can arise if an improper classification is selected by the NPWC. Not only do job details differ across classifications, but wage amounts can differ considerably as well.
This is especially a problem where the NPWC’s selected classification has a higher corresponding wage than what is normal for the PERM position. The good news is, the NPWC allows employers to request a redetermination of prevailing wage where the underlying determination is incorrect. We recently had this issue arise and succeeded in our redetermination request on behalf of the employer. Continue reading
I’m currently at the American Immigration Lawyers Association’s (AILA) annual conference in New Orleans, LA! Yesterday a Department of Labor (DOL) open forum was held to discuss current PERM trends and updates. Here are some of the more important points: Continue reading