Employer Law Report

Tag Archives: H-1B

USCIS Administrative Appeals Office issues important non-precedent decisions on wage level determinations for H-1B petitions

Beginning in the summer of 2017, employers began to see an increase in Requests for Evidence (RFE) from USCIS on H-1B petitions alleging that the occupation was not a specialty occupation because the employer assigned a level 1 wage. Two recent decisions from the Administrative Appeals Office (AAO) indicate that this may no longer be an concern.

Some background to this issue is helpful. The H-1B visa is available for foreign nationals who will be performing services in a specialty occupation. The specialty occupation is a field that requires a specific educational background as a minimum qualification to perform the …

Administration disavows proposal to limit all H-1Bs to six years

On Dec. 30, 2017 McClatchy News reported that USCIS was considering an interpretation of a provision in the American Competitiveness in the Twenty First Century Act that would restrict H-1B visas from extensions beyond six years. This story provoked a fire storm of panic among Indian H-1B visa holders who have been waiting for an available immigrant visa while caught in backlogs often in excess of 10 years and longer. While many lawyers cautioned that the statute could only be interpreted to withhold three year extensions but not one year extensions (creating only a more pronounced processing backlog but not …

President Trump’s executive order on H-1B visas

President Trump issued yet another executive order addressing immigration issues on Tuesday, April 18, 2017. This order, entitled “Buy American and Hire American,” addresses federal procurement policies and reiterates the established policy to purchase goods manufactured in the United States. The order also addresses the H-1B visa. While it does not change any law, regulation or policy, it comes only one day after USCIS once again announced that 199,000 H-1B petitions were received during the first five business days of April to overwhelm the 85,000 limit on visas for the next fiscal year.

Substantively, the executive order merely …

USCIS to suspend premium processing for H-1B petitions

On Friday, March 3, 2017, United States Citizenship and Immigration Services (USCIS) announced that it would suspend premium¹ processing for all H-1B petitions filed on or after April 3, 2017. Because April 3 is the first day that cap subject petitions² can be filed for Fiscal Year 2018, this puts a halt on premium processing for all cap subject cases that will be accepted in April, as well as all other H-1B petitions, both change of employer petitions and extensions. According to the notice, the suspension of premium processing may last as long as six months.

Processing times for …

Changes to the H-1B program under the Trump Administration?

Various news sources have been reporting on certain changes that may be coming to the H-1B program under the new Trump administration.

First, there is a draft copy of an Executive Order titled, “Protecting American Jobs and Workers by Strengthening the Integrity of Foreign Worker Visa Programs.” The draft contains several “orders” directing governmental agencies to propose and develop regulations pertaining to foreign nationals working in the United States. The draft that is currently available does not contain any concrete ideas as to the nature of any proposed or amended regulations. Furthermore, if this Executive Order were to be signed, …

Prepare for the H-1B Cap: Filing Season Begins April 1, 2014

Spring is right around the corner, so we’d like to remind our clients, especially U.S. employers, to begin considering filing H-1B petitions for prospective new foreign national employees.  These petitions can be submitted to U.S. Citizenship and Immigration Services (USCIS) on or after April 1, 2014 for employment beginning no earlier than October 1, 2014 (this is the beginning of the government’s 2015 fiscal year, which runs from October 1, 2014 to September 30, 2015).  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 …

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 …

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 …

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 …

The H-1B “Cap” – January 26, 2011 was the final receipt date for fiscal year 2011 petitions

As of January 26, 2011, Citizenship and Immigration Services indicated that it received sufficient H-1B petitions to reach the annual cap of 65,000 visas for fiscal year 2011 (October 1, 2010 – September 30, 2011). As of December 22, 2010, it had received more than 20,000 petitions toward the annual exemption amount for individuals with U.S. graduate degrees. Employers now must wait until April 1, 2011 to file "new" H-1B petitions for an October 1, 2011 effective date, which is the start of fiscal year 2012.

A “new” H-1B petition refers only to individuals acquiring the H-1B visa or status …

The H-1B “Cap” – Fiscal Year 2011 On Pace With Reduced Filings from Last Year

As of April 15, 2010, Citizenship and Immigration Services indicated that it had received 13,600 "new" H-1B petitions toward the annual cap of 65,000 visas. It received an additional 5,800 petitions under the 20,000 exemption amount for individuals with U.S. graduate degrees. Similar to last year’s reduced filings, it appears that H-1B visa numbers will be available for several months to come. These petition numbers are for the next fiscal year, which runs October 1, 2010 to September 30, 2011. For the prior fiscal year, the cap was not reached until December 2009.

A “new” H-1B petition refers only to …

H-1B Cap Reached

U.S. Citizenship and Immigration Services (CIS) announced today that the H-1B cap was reached on December 21, 2009. CIS will conduct a random lottery among the petitions it received on December 21 to allocate the remaining visa numbers. The cap does not apply to H-1B employees changing employers or to individuals who will work at an institution of higher education or related nonprofit entity, a nonprofit research organization or a governmental research organization. Cap-subject employers now must wait until April 1, 2010 to file petitions for the next fiscal year (October 1, 2010 – September 30, 2011).…

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 …

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.…

U.S. CIS Announces OPT Extension for F-1 Students Bridging to an H-1B Visa

U.S. Citizenship and Immigration Services announced on April 18, 2008 a special "cap gap solution" for F-1 students whose Optional Practical Training (OPT) expires before October 1, 2008. An April 8, 2008 interim final rule automatically extended OPT for F-1 students, but it applied only in those cases where the employer requested a "change of status" on the H-1B petition. To be eligible for the change of status from F-1 student to H-1B temporary worker, however, the student must have had less than a 60-day gap between when the OPT expires and October 1, 2008. Therefore, when employers filed H-1B …

CIS Conducted Random Selection Process for H-1B Visas on April 14

In a follow up to my recent post on H-1B visa petitions, U.S. Citizenship and Immigration Services conducted the random selection process on April 14, 2008 and announced that it will issue receipt notices for selected petitions by June 2, 2008. The notice also indicated that the total processing time would be eight to 10 weeks but did not indicate whether the clock would begin from April 14 or from the date of the receipt notice. For premium processing cases ($1,000 extra filing fee for 15-day processing), the 15-day clock began on April 14.…

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