USCIS Completes the H-1B Cap Random Selection Process for FY 2019

USCIS Completes the H-1B Cap Random Selection Process for FY 2019

USCIS announced today that it received 190,098 cap-subject H-1B petitions during the filing period from April 2-6, 2018.  On April 11, 2018, USCIS conducted a random, computer-generated, lottery selection process, to choose the 65,000 regular cap petitions and the 20,000 “master’s cap” petitions that will be adjudicated. The “master’s cap” is made up of petitions for beneficiaries who earned an advanced degree from a U.S. university. USCIS received more than 20,000 applications for the master’s cap, and so the master’s cap lottery was conducted first. Any petitions not selected in the master’s cap lottery were then included in the regular cap lottery.

USCIS did not release information on the number of master’s cap eligible petitions received. We can estimate that, excluding the 20,000 petitions that were selected for the master’s cap, 170,098 petitions were included in the random selection process for one of the 65,000 regular cap slots. If your petition was counted toward the FY19 regular cap, it had about a 38% chance of having been selected. Any petitions that were not selected will be rejected and returned with the filing fees. It will likely be several weeks before we will begin to receive rejected cases. For those cases selected in the lottery, receipt notices will begin to arrive in the coming weeks. The “normal” processing time for H-1B petitions varies greatly between service centers and can take as long as seven months.

USCIS’s premium processing service is currently suspended for H-1B cap-subject petitions and is expected to resume in September. We will provide an alert to our clients when premium processing resumes for H-1B cap-subject petitions.

Cap Statistics and Taking Action

This is the fifth year in a row that the H-1B cap has been met and exceeded in the first week that filings are accepted. Last year, USCIS received about 199,000 cap-subject cases and the odds of having a petition selected in the regular lottery were 34%. The continued exhaustion of H-1B cap visas in the first week of filing is representative of U.S. employers’ desire to retain talented foreign employees. The arbitrary limit of 65,000 H-1B positions for the entire nation is a reflection of our broken immigration system.

We encourage you to reach out to your representatives in Congress and demand comprehensive immigration reform that includes an increase in the number of H-1B visas, or a removal of the cap entirely. Here are links to assist you in locating your congressional representative: http://www.house.gov/representatives/find/ and your senators: http://www.senate.gov/general/contact_information/senators_cfm.cfm.

For more information, please see: https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2019-cap-season

 U.S. Department of Labor Confirms Employers May Retain PERM Audit Files Electronically

 U.S. Department of Labor Confirms Employers

May Retain PERM Audit Files Electronically

During the most recent Quarterly Stakeholder Meeting, the U.S. Department of Labor Office of Foreign Labor Certification (OFLC) confirmed that employers may electronically retain PERM audit file documents. OFLC noted that with the move toward electronic communications, it is highly unlikely they would need any kind of original document. As a reminder, employers are required to retain a PERM audit file for five (5) years after the filing of a PERM labor certification to the Department of Labor. Our firm routinely prepares and sends our clients an audit file as part of our legal services. 

However, employers should ensure that any documents stored electronically are legible before destroying the original documents. Any illegible electronic copies provided in response to a Department of Labor audit or notice of intent to revoke could result in denial or revocation of the application. If your company is interested in moving to electronic retention of your PERM audit files, please contact one of our attorneys today.

The Fiscal Year 2019 H-1B Visa Cap Has Been Met

The Fiscal Year 2019 H-1B Visa Cap Has Been Met

Please be advised that U.S. Citizenship and Immigration Services (USCIS) has met and exceeded the H-1B cap for fiscal year 2019 (FY19). USCIS announced that it has reached the congressionally mandated 65,000 cap during the filing period from April 2, 2018 to April 6, 2018. USCIS stated that it has also received a sufficient number of H-1B petitions to meet the 20,000 limit for the master’s cap. The master’s cap is made up of petitions for beneficiaries who earned an advanced degree from a U.S. university.  

USCIS has not yet released information on how many petitions were received, but has stated that they will reject and return filing fees for all unselected cap-subject petitions.

Cap Statistics and Taking Action  

This is the fifth year in a row that the H-1B cap has been met in the first week that filings are accepted. Last year, USCIS received about 199,000 cap-subject cases and the odds of having a petition selected in the lottery were roughly 1 in 3. The continued increase in cap filings year-to-year is representative of U.S. employers’ increasing desire to retain talented foreign employees. The arbitrary limit of 65,000 H-1B positions for the entire nation is a reflection of our broken immigration system.  

We encourage you to reach out to your representatives in Congress and demand comprehensive immigration reform to include an increase in the number of H-1B visas, or a removal of the cap entirely. Here are links to assist you in locating your congressional representative: http://www.house.gov/representatives/find/ and your senators: http://www.senate.gov/general/contact_information/senators_cfm.

For more information on FY2019 H-1B cap-subject filings, please see: https://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2019-cap-season 

USCIS will continue to receive and process H-1B petitions that are not subject to the annual cap.

USCIS Adopts Decision Defining “Related Entities” for Petitions Filed in the H-1B Cap Lottery

USCIS Adopts Decision Defining “Related Entities”

for Petitions Filed in the H-1B Cap Lottery

In the days leading up to the FY2019 H-1B cap filing deadline, USCIS has adopted the Administrative Appeals Office (AAO) decision in Matter of S- Inc. and has directed adjudicators to reject multiple H-1B petitions by related entities for the same beneficiary in the same fiscal year.

In Matter of S- Inc., both companies had filed H-1B petitions for the same beneficiary to work in substantially the same job for the same end-client. On appeal, the companies argued they were not subject to the prohibition on multiple cap filings because they did not have a parent, subsidiary, or affiliate relationship. However, the AAO did not agree with this reasoning.

Instead, the AAO held that the term “related entities” is not limited to companies with parent, subsidiary, or affiliate relationships, but rather includes all companies “who submit multiple petitions for the same beneficiary for substantially the same job.” The decision is intended to prevent companies from undermining the purpose of the random lottery process by having multiple third-party contractors file petitions for the same beneficiary in the same position at the same end-client, thus increasing the chance of selection.

Absent a legitimate business need to file multiple cap petitions for the same beneficiary, USCIS will deny all H-1B petitions filed by related entities for that beneficiary. USCIS notes that related entities may extend the same beneficiary two or more job offers for distinctly different positions, which could constitute a legitimate business need to file multiple cap petitions. However, “[e]ach job opportunity must be bona fide, be available to the beneficiary, and be materially distinct.”

If you have questions about whether this new USCIS policy will impact your company, please contact one of our attorneys today.

 

USCIS Suspends Premium Processing for Cap-Subject H-1B Petitions

USCIS Suspends Premium Processing for Cap-Subject H-1B Petitions

Starting April 2, 2018, USCIS will temporarily suspend premium processing for all H-1B petitions subject to the Fiscal Year (FY) 2019 cap. This suspension is expected to last until September 10, 2018 and USCIS will notify the public before Premium Processing resumes for cap-subject H-1B petitions. USCIS will continue to accept Premium Processing requests for H-1B petitions that are not subject to the FY 2019 cap.

Who Is Affected?

The temporary suspension applies to all cap-subject H-1B petitions filed on or after April 2, 2018. This suspension will apply to all petitions filed for the FY19 H-1B regular cap and master’s cap. While premium processing is suspended, USCIS will reject any Form I-907 filed with a cap-subject H-1B petition. If the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, USCIS will have to reject both forms.

Petitioners may continue to submit expedited processing requests if it can meet at least one of the expedite criteria. However, USCIS notes that it will only grant expedite requests at the discretion of USCIS office leadership.

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

 

Important Takeaways from I-9 Webinar

Important Takeaways from I-9 Webinar

On March 14, 2018, USCIS held a webinar entitled “Form I-9 Overview” to answer questions about completing Forms I-9. Below are some reminders and pointers that were discussed during the webinar:

·       USCIS encourages employers to write “N/A” in any fields that are not applicable.

·       The Form I-9 edition dated 07/17/17 includes a new field that requires the employee to check whether or not they used a preparer or translator. Employers should ensure the employee checks the applicable box and does not leave this section blank.

·       Employers should ensure the “Lists of Acceptable Documents” is always made available to employees when they complete Section 1 of the Form I-9.

·       In Section 1, the boxes entitled “Employee’s Email Address” and “Employee’s Telephone Number” are not required fields. Similarly, the box entitled “U.S. Social Security Number” is only required if your company is enrolled in E-Verify.

·       Although a Spanish language version of Form I-9 is available, only employers in Puerto Rico can complete and retain this version. Employers who are not located in Puerto Rico may provide a copy of the Spanish language version to the employee for reference, but should still complete the English edition.

·       When employers make corrections on existing Forms I-9, all changes should be initialed and dated. If the employer completes a new form to correct mistakes, the new form should be attached to the original Form I-9 along with a written statement explaining why a new form was completed.

·       List B documents do not need to be re-verified. 

·       The Form I-9 is not considered complete until it is signed and dated by the employee in Section 1 and signed and dated by the employer or authorized representative in Section 2.

ICE’s Deputy Director recently stated the agency wants to implement a 400% increase in worksite enforcement, which includes I-9 audits. If you or your company would like to schedule a Form I-9 training or have our firm conduct an internal audit to ensure compliance with I-9 regulations, please contact one of our attorneys today.

30 DAYS REMAIN UNTIL THE H-1B CAP FILING DEADLINE

30 DAYS REMAIN UNTIL THE H-1B CAP FILING DEADLINE

On April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2019 cap.  Employers use the H-1B visa program to hire foreign workers in specialty occupations that require the theoretical or practical application of a body of highly specialized knowledge, including but not limited to: scientists, doctors, engineers, accountants, and computer analysts and developers. 

The congressionally mandated cap on H-1B visas is 65,000.  An advanced degree exemption is available for 20,000 beneficiaries who have obtained a U.S. master’s degree or higher.  Once that limit is reached, petitions filed for beneficiaries with a U.S. master’s degree or higher will count against the regular cap.  

Based on trends for previous years, we expect that the number of petitions will exceed the available slots.  USCIS will conduct a lottery with all petitions filed within the first five business days in April.  We recommend starting this process in January so the H-1B petition is ready to be filed on April 1st.

 Here is a summary of past H-1B Visa Numbers

 FY 2018 H-1B Visa Cap:

USCIS received 199,000 H-1B Petitions

FY 2017 H-1B Visa Cap:

USCIS received 233,000 H-1B Petitions

For more information about the H-1B program, or if you have interest in applying for an H-1B Visa for Fiscal Year (FY) 2019, please contact our office.

USCIS Announces New Requirements for H-1B Petitions Involving Third-Party Worksites

USCIS Announces New Requirements for H-1B Petitions

Involving Third-Party Worksites

On February 23, 2018 USCIS published a new policy memorandum regarding requirements for H-1B petitions involving third-party worksites. Specifically, the memorandum sets forth the following policies:

  • Itineraries will now be required, without exception, for all petitions involving multiple worksites, even for petitions that do not involve third-party placement. The itineraries must include dates and locations of provided services.
  • USCIS will limit the duration of an H-1B approval to the length of time the worker will be engaged in non-speculative work, as demonstrated by supporting evidence. For example, if a petition only provides evidence of a project that will last for 6 months, the H-1B will only be approval for a 6-month duration even though H-1Bs may generally be approved for up to 3 years.
  • Petitions involving third-party worksites must provide evidence that the actual work will be performed in the specialty occupation. Such evidence may include work assignments, signed contractual agreements, detailed statements of work or work orders, or a signed letter from an authorized official of the end-client company.
  • If contracts between the employer and end client are provided as evidence, the contracts must do more than set forth general obligations of the parties. Rather, the contracts should provide specific information pertaining to the actual work to be performed.
  • When applying to extend an H-1B for third-party worksites, petitioners must demonstrate that they have met the H-1B requirements for the entire prior approval period.

There is still time to apply for this year’s H-1B Cap lottery.  For more information about USCIS’s new H-1B policy and how it affects your company, or if you have interest in applying for an H-1B Visa for Fiscal Year (FY) 2019, please contact our office.

President Trump Directs Establishment of Immigration Vetting Center

President Trump Directs Establishment of Immigration Vetting Center

On February 6, 2018, President Trump issued a memorandum directing the establishment of a National Vetting Center to coordinate how government agencies share intelligence on individuals seeking immigration benefits or entry to the United States. The memorandum tasks the Secretary of Homeland Security, the Secretary of State, the Attorney General, and the Director of National Intelligence with establishing the National Vetting Center. These officials must submit an implementation plan to the President within 180 days. The National Vetting Center will then begin operations once the President has approved the implementation plan.

Once the National Vetting Center is operational, it will be responsible for “coordinat[ing] agency vetting efforts to identify individuals who present a threat to national security, border security, homeland security, or public safety,” according to the memorandum. A panel will be formed to review and advise on privacy, civil rights, and civil liberties issues that arise during the vetting process.

According to a National Security Official who spoke with CNN, the National Vetting Center will predominantly focus on screening visa applications from future immigrants, but will also vet individuals already in the United States who are subject to deportation proceedings. However, it remains unclear how exactly the National Vetting Center will change current vetting procedures.

For questions please contact our office.

60 DAYS REMAIN UNTIL THE H-1B CAP FILING DEADLINE

60 DAYS REMAIN UNTIL THE H-1B CAP FILING DEADLINE

On April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2019 cap.  Employers use the H-1B visa program to hire foreign workers in specialty occupations that require the theoretical or practical application of a body of highly specialized knowledge, including but not limited to: scientists, doctors, engineers, accountants, and computer analysts and developers.

The congressionally mandated cap on H-1B visas is 65,000.  An advanced degree exemption is available for 20,000 beneficiaries who have obtained a U.S. master’s degree or higher.  Once that limit is reached, petitions filed for beneficiaries with a U.S. master’s degree or higher will count against the regular cap.

Based on trends for previous years, we expect that the number of petitions will exceed the available slots.  USCIS will conduct a lottery with all petitions filed within the first five business days in April.  We recommend starting this process in January so the H-1B petition is ready to be filed on April 2nd.

 Here is a summary of past H-1B Visa Numbers

 FY 2018 H-1B Visa Cap:

USCIS received 199,000 H-1B Petitions

FY 2017 H-1B Visa Cap:

USCIS received 233,000 H-1B Petitions

For more information about the H-1B program, or if you have interest in applying for an H-1B Visa for Fiscal Year (FY) 2019, please contact our office.