Employer Law Report

Tag Archives: USCIS

H-1B Cap Reached Again, but Employers May Have Options to Keep Foreign Employees Working

This year brings more bad news for employers who filed H-1B petitions for foreign workers beginning on April 1, 2014.  On April 10, U.S. Citizenship & Immigration Services (USCIS) announced that it had received about 172,500 H-1B petitions, far above the 85,000 H-1B visas available each year (65,000 being available for bachelor degree-level graduates, with an additional 20,000 available for advanced degree graduates of American universities).  Thus, due to this H-1B visa “cap,” more than 50 per cent of the petitions filed will not be accepted for processing. USCIS has since completed a computer-generated lottery to select the petitions to … Continue Reading

H-1B cap reached as expected

This morning, the USCIS announced that the H-1B cap was reached during the initial filing period. More than 65,000 petitions were received for the regular cap, and more than 20,000 petitions were received for the advanced degree exemption. This announcement was expected, and it will take another couple of weeks for the USCIS to enter sufficient data for the petitions filed to run the random selection, and decide which cases to accept and process. The rest of the cases will be rejected. We expect another announcement when the number of petitions has been counted, and we will be able to … Continue Reading

USCIS Announces H1-B Cap Reached

The USCIS announced on April 5, 2013 that the H-1B cap was reached in the first week petitions could be filed for the fiscal year beginning October 1, 2013. Because more than 85,000 petitions were submitted, a computer generated lottery will be held to determine which petitions will be processed. USCIS will take a few days to data entry the information required, and then will first conduct the lottery for the 20,000 advanced degree graduates. All remaining advanced degree graduates will be entered into the regular cap lottery for the remaining 65,000 visas. The remaining petitions will be rejected and … Continue Reading

Prepare for the H-1B Cap: Filing season begins April 1, 2013

A new year brings new opportunities and challenges, and it’s time for American employers to begin considering filing H-1B petitions for prospective new foreign national employees. The H-1B visa category provides for the temporary employment of foreign nationals who will work in “specialty occupations,” or those jobs for which at least a bachelor’s degree in a particular field is required (for example, engineers, teachers, accountants, and many professional information technology positions). The problem is that there are limited numbers of H-1B visas available each year, and this year we expect these numbers to be quickly claimed.

There is a limit … Continue Reading

H-1B Cap has been reached for FY2013

Yesterday, the U.S. Citizenship and Immigration Services announced that the H-1B cap has been reached for the Fiscal Year 2013, which begins October 1, 2012. Accordingly, no H-1B petitions can be filed until April 1, 2013, for potential employees who are cap-subject to be able to begin working on October 1, 2013.

Each fiscal year, the law permits 20,000 "master cap" cases for the H-1B beneficiaries who have obtained graduate degrees from U.S. universities and 65, 000 "regular cap" cases. In most instances, cap-subject individuals are those who are acquiring H-1B status for the first time, such as international students … Continue Reading

USCIS Announces the H-1B Cap has been reached

This afternoon, the USCIS announced that it has received sufficient petitions for the H-1B visa to reach the statutory cap for Fiscal Year 2012. The H-1B cap is 65,000 per fiscal year, and an additional 20,000 visas are allocated to advance degree graduates of United States universities. The "masters cap" was reached on October 19, 2011, and the regular cap was reached on November 22, 2011. Thus, any petition not filed before November 22 will be rejected. Filing will open up again for Fiscal Year 2013 on April 1, 2012 to begin work on or after October 1, 2013.

The … Continue Reading

USCIS Restores Practice of Sending Notices to Counsel of Record

On October 7, 2011, we reported that the USCIS changed its procedures regarding the delivery of approval notices. Effective September 12, 2011, notices were sent to the applicants or petitioners instead of counsel, as had been the long standing practice. There were numerous complaints through several channels, and the USCIS hosted a "Stakeholder Engagement" session to receive feedback on October 12. A week later, Director Alejandro Mayorkas announced that the policy would be reversed, and the USCIS would again send approval notices to counsel of record. The reprogramming of the system to restore the policy will take approximately 6-8 weeks, … Continue Reading

I-9 Interim Rule From 2008 Now Final

We previously reported on an interim I-9 rule from December 2008 (see U.S. Citizenship and Immigration Services Announces Revised I-9 Form).  Citizenship and Immigration Services now has finalized the interim rule. The final rule is effective May 16, 2011. As a practical matter, the final rule continues the provisions we discussed in this previous blog from two years ago. Employers therefore simply should continue to follow these provisions as they have for the past two years.Continue Reading

New H-1B Pre-Filing Registration On the Horizon

The Proposed Regulation

U.S. Citizenship and Immigration Services (CIS) announced a proposed rule that would require employers of H-1B workers to complete a pre-filing registration before submitting petitions for individuals subject to the annual H-1B cap. The earliest it would go into effect would be January 2012. Once effective, employers will complete an online registration for each prospective, cap-subject H-1B employee. CIS then will provide a confirmation instructing that the employer may file a petition on behalf of the specific person. Employers still may file petitions for more than one person, but a separate pre-registration will be required for each … Continue Reading

H-1B Employer Assessed Back Wages and Fined

The U.S. Department of Labor announced this week a $638,449 back wage consent order and $126,778 civil fine against a New Jersey IT consulting firm, Peri Software Solutions, Inc. The announcement indicated that the back wages resulted from the employer’s failure to compensate the H-1B workers as required under Department of Labor regulations. The civil fine arose from two issues:  the employer failed to provide notice of its intent to employ H-1B workers and it sued former employees "for early cessation of employment."

The announcement may raise more questions than it answers concerning the specific facts involved, but it serves … Continue Reading

Time is running out to file H-1B petitions for current fiscal year

At a December 1, 2009 seminar in New York, representatives of U.S. Citizenship and Immigration Services (USCIS) provided an update on the H-1B cap numbers for the October 2009 – September 2010 fiscal year (please see my earlier post for more on this topic — The H-1B "Cap" – 2010 Fiscal Year Is The Canary In The Mine) .

While a recent report indicated that 58,900 petitions had been filed against the 65,000 cap, USCIS explained that the low number of filings for nationals of Chile and Singapore (who benefit from a set aside of 6,800 visas) means that … Continue Reading

New I-9 Form Implementation Delayed Until April 3, 2009

On Friday, January 30, 2009, USCIS announced that it was delaying the implementation of the new I-9 form and regulations published during the final days of the Bush Administration. On January 20, President Obama issued an executive order requiring review of all new regulations not yet effective.

Implementation of the new I-9 form, which for the first time requires new employees to distinguish between a representation of U.S. citizenship or non-citizen nationality and also reduces the number of acceptable documents, has been delayed for another 60 days. The new effective date for this form and the new requirements is April … Continue Reading

USCIS to Start Mailing Rejection Notices for April 1, 2008 H-1B Filings

On June 12, 2008, U.S. Citizenship and Immigration Services (USCIS) informed the American Immigration Lawyers Association that the H-1B random selection process has been completed. USCIS completed the intake and receipt processes for all filings as of May 24, 2008 and began mailing rejection notices the week of June 9. Therefore, if an employer has not yet received a filing confirmation (Form I-797C Notice of Action), it likely means that the petition was not selected in the random process and that the rejection notice will be forthcoming.… Continue Reading