Category: Alerts

USCIS formally confirmed that it will implement its new electronic registration process for the fiscal year (FY) 2021 H-1B cap season. The initial registration period will run from March 1 through March 20, 2020.

WHAT’S NEW THIS YEAR

• Cap-subject H-1B employers intending to sponsor H-1B workers must first register each intended beneficiary electronically with USCIS during the registration period.
• There is a $10 government fee for each registrant.
• If the number of registrations exceeds the number of H-1B visas available under the annual quota as expected, USCIS will randomly select a sufficient number of registrants projected to reach the FY2021 H-1B cap. The random selection process will occur after the initial registration period closes on March 20, 2020. USCIS intends to notify those selected no later than March 31, 2020.
• Employers will have a 90-day window during which to file H-1B cap petitions for selected registrants. The petition filing period is expected to start not later than April 1, 2020.
• Employers may file an H-1B cap petition for selected registrants only; no substitutions are permitted.

REGISTRATION HIGHLIGHTS

• In completing the registration, employers must identify whether an individual qualifies for an H-1B pursuant to the advanced degree cap (reserved for individuals holding a U.S. master’s degree or higher) or the standard H-1B cap.
• Employers may register multiple individuals at once, using a single online “batch” submission.
• An employer may only submit one registration per intended beneficiary in any fiscal year. If an employer registers a beneficiary more than once in the same fiscal year, all registrations submitted by that employer for that beneficiary will be invalidated.
• The registration may be prepared and submitted by the employer’s authorized representative.

WHAT SHOULD EMPLOYERS DO NOW?

Employers should work with counsel now to identify current or prospective employees who may require an H-1B petition to work in the U.S. and to take appropriate steps to ensure timely online registration of identified candidates. Potential beneficiaries include, but are not limited to:

• New hires from overseas
• F-1 students completing a qualifying course of study or currently working pursuant to Optional Practical Training
• Some L-1 visa holders
• TN, E-3 and other nonimmigrant visa holders who wish to change to H-1B status in the coming year
• H-4 dependent EAD holders. As the Administration has indicated that it intends to eliminate work authorization eligibility for the H-4 spouses of certain H-1B visa holders, employers may wish to consider filing cap petitions for these individuals.
• Some L-2 or E dependent EAD holders

BACKGROUND

H-1B Categories and Annual Quotas

H-1B petitions generally fall within two categories:

• “Standard” Cap Petitions. The minimum educational requirement for a standard H-1B petition is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 visas annually with approximately 6,800 reserved for nationals of Chile and Singapore.
• S. Advanced Degree Petitions. The beneficiary must hold an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree holders each fiscal year.

H-1B Petitions Not Subject to the Cap 

As a reminder, certain H-1B petitions are not counted against the annual cap, including:

• Individuals in H-1B status previously counted against the cap. In most instances, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extensions of status for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
• Petitions filed by cap exempt organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt, and may be filed any time throughout the year.

USCIS intends to publish more information about the cap registration process in the weeks ahead. Gibney will provide additional information as it becomes available.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

Today House Speaker Nancy Pelosi announced that Democrats in the U.S. House of Representatives reached an agreement with the administration to proceed with a modified version of the United States-Mexico-Canada Agreement (USMCA).  The modifications relate to additional protective measures for labor and the environment, among others.   Both the U.S. House of Representatives and the Senate must now pass legislation to implement the agreement, which the president must sign. The USMCA must also be approved by Canada and Mexico.

What this Means for Employers

From an immigration perspective, the USMCA represents a repackaging of NAFTA. The agreement retains key immigration benefits of NAFTA, including provisions allowing for the temporary entry without quotas of Business Visitors, Traders and Investors, Intracompany Transferees, and Professionals. With respect to Professional workers, USMCA retains all of the occupations previously designated as eligible for the NAFTA “TN” visa though the new agreement does not add any additional occupations.

For additional information, please contact your designated Gibney representative.

The U.S. Department of Homeland Security published a final rule that will require employers to pay a $10 non-refundable fee for each H-1B cap registration submitted, once the electronic registration system is implemented.   The final rule is effective December  9, 2019.

 Background:

The H-1B visa program allows U.S. employers to petition for temporary work authorization for professionals working in specialty occupations. The H-1B visa is subject to an annual quota (or “cap”) of 65,000 visas each fiscal year, with an additional 20,000 visas available to beneficiaries holding a U.S. master’s degree or higher.

In January 2019 USCIS published a final rule introducing an electronic registration requirement for employers seeking to file H-1B cap-subject petitions. Pursuant to the rule, before an employer may file an H-1B cap petition with USCIS, it must first register its intention with USCIS during a designated registration period.  However, USCIS immediately postponed implementation of the registration requirement for fiscal year (FY) 2020 H-1B cap filings in order to create the electronic registration system and perform user testing. Additional information about the proposed electronic registration process is available here.

What Employers Can Expect

Appearing at the Society for Human Resource Management Global Mobility and Immigration Symposium on November 4, 2019, USCIS Acting Director Kenneth Cuccinelli expressed a high degree of confidence that the electronic registration system would be implemented for the FY2021 H-1B cap selection process. He further indicated that a determination of “go” or “no go” would be announced in 2019. USCIS will announce the implementation timeframe and registration period in the Federal Register once a final decision is made to implement the electronic registration system.

Once the electronic registration system is operational, all H-1B cap petitioners will first have to electronically register information related to the company and the intended beneficiary during a designated registration period. The $10 fee will be required when registrations are submitted. Once implemented, the registration system is expected to lower costs for petitioning employers, who will no longer have to prepare and submit full H-1B petitions unless their registration is selected the H-1B cap lottery.

More information on the H-1B visa and program requirements can be found here.  For additional information, please contact your designated Gibney representative.

The U.S. Department of Homeland Security has designated Poland as the newest member of the Visa Waiver Program (VWP).

What Employers Can Expect

Effective November 11, 2019, Polish citizens and nationals may apply to travel to the United States for up to 90 days for tourism or business visitor purposes without having to obtain a U.S. visa. Eligible Polish nationals must have an electronically readable passport and must obtain travel authorization from Electronic Screening System for Travel Authorization (ESTA) prior to travel.

Learn more about the Visa Waiver Program requirements and limitations here.  For additional information, please contact your designated Gibney representative.

 

 

What is the Diversity Visa Lottery?

The Diversity Immigrant Visa Program provides up to 55,000 immigrant visas (green cards) for issuance in Fiscal Year 2021 to persons from countries with low immigration rates to the United States. Foreign nationals are selected for eligibility to apply for U.S. Lawful Permanent Resident (LPR) status under this program on the basis of a lottery.

When can I apply?

The U.S. Department of State will accept applications online from 12 PM Wednesday October 2, 2019 Eastern Daylight Time (EDT) (GMT-4) to 12 PM Tuesday, November 5, 2019 Eastern Standard Time (EST) (GMT-5). DV-2021 applicants are encouraged to apply as soon as possible and should keep their confirmation number until at least September 30, 2021. There is no cost to submit an application.

Who is eligible?

• An individual must have been born in an eligible country and must meet minimum education/work requirements. Notably, natives of the following countries are NOT eligible to apply: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
• Eligible nationality is generally determined by the location of a person’s birth. However, if a foreign national is ineligible to apply based on his/her country of birth, there are two alternate ways to qualify. First, a foreign national whose spouse was born in a eligible country may apply provided that both the individual and the spouse are named on the selected entry, are found eligible, and enter the U.S. simultaneously. Second, a foreign national who was born in a country whose natives are ineligible to apply may be eligible to apply if neither parent was born in or legally resided in that country at the time of the foreign national’s birth.
• A foreign national must also have either a high school education or its equivalent or at least two years of work experience within the past five years in an occupation requiring at least two years training or experience.

How do I Apply?

DV Lottery entries may only be submitted electronically at the U.S. Department of State’s Diversity Visa Lottery website located here. Applicants may only submit ONE lottery entry; individuals who attempt to submit more than one application will be disqualified. A DV Lottery application must be accompanied by digital photographs of the applicant, the applicant’s spouse and the applicant’s dependent children (as applicable), taken in accordance with requirements. Note: Each individual may submit his/her own application if he/she otherwise qualifies.

New For DV-2021

The principal applicant must enter valid international travel passport information unless they are stateless, a national of a Communist-controlled country and unable to obtain a passport from the government of the Communist-controlled country, or the beneficiary of an individual waiver approved by the Secretary of Homeland Security and the Secretary of State.

How does the Selection Process Work?

DV Lottery winners are selected via a random computerized process. After entering the lottery, it is critical to safeguard the confirmation page as it contains information that is needed to check the status of the application.

• Starting May 5, 2020 (and through at least September 30, 2021), applicants may check application status using their confirmation number on the Entry Status Check section of the E-DV website. Lottery winners will not receive correspondence in the mail.
• Selection in the DV Lottery does not automatically confer U.S. Lawful Permanent Resident (LPR) status – only the opportunity to apply for permanent resident status.
• Applications for permanent resident status can be lodged in one of two ways: by filing an adjustment of status application if lawfully present in the U.S. or by filing an application for an immigrant visa at a U.S. Consulate abroad. The actual application for permanent resident status must be filed and approved by September 30, 2021; if an application is not approved by that date, the application is invalidated.  Note that more individuals are selected in the DV Lottery than there are immigrant visas/green cards made available. As a result, some individuals who are selected in the DV Lottery may ultimately be unable to become U.S. LPRs if the available immigrant visas are allocated prior to approval of the individual’s permanent resident application.

Where Can I Get More Information?

Instructions regarding how to apply for the FY2021 Diversity Visa Lottery may be obtained from the U.S. Department of State’s PDF instructions.

For more information or specific legal advice, please contact your designated Gibney representative or email info@gibney.com.

H-1B cap-subject visa petitions filed and approved by U.S. Citizenship and Immigration Services (USCIS) for Fiscal Year 2020 take effect on or after October 1, 2019. Next steps for employers may include Form I-9 Reverification and taxes for F-1 and J-1 Non-Immigrants.

Change of Status Filings

Approved H-1B cap-subject petitions filed as “change of status” automatically take effect on October 1 if the beneficiary:

• was physically present in the U.S. for the entire period from the date the petition was received through the date the petition was approved; and
• is physically present in the U.S. on October 1, 2019 for the change of status to take effect

With the exception of Canadian citizens, a beneficiary departing the U.S. must apply for an H-1B visa at a U.S. Consulate abroad in order to re-enter the U.S. in valid H-1B status. U.S. consulates require a personal interview to apply for a visa and most have a wait period of several weeks to schedule an interview. Actual visa processing times vary by consulate and can be found at the U.S. Department of State website. All intending visa applicants are advised to check the website of the consulate where they intend to apply for information on scheduling the interview and visa processing. Visa applicants should also be aware that U.S. consulates do not guarantee a specific timeframe for visa processing as there can always be additional delays such as “administrative processing” (i.e., background and/or security checks), which may delay processing for 2 weeks to 8 weeks or more.

Consular Notification Filings

Approved H-1B cap-subject petitions filed as “consular notification” will not automatically change the beneficiary’s status to H-1B without further action. To activate H-1B status for an approved consular notification petition, the beneficiary must depart the U.S. if not already abroad, obtain an H-1B visa at a U.S. consulate, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S. Canadian citizens do not require a visa, but do need to activate a “consular notification” petition through a Port of Entry into the U.S.

Next Steps For Employers

• Form I-9 Reverification: Employers may need to update the employment eligibility under Section 3 of Form I-9 for H-1B cap beneficiaries whose I-9 documents are expiring.
• Taxes for F-1 and J-1 Non-Immigrants: F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, once F-1 or J-1 foreign nationals change to H-1B status, they are no longer exempt and withholdings will need to be adjusted.
• Pending H-1B Petitions: There are numerous H-1B cap petitions still pending and USCIS has stated that approval by October 1 is not guaranteed. As such, employers need to be aware of foreign nationals who have work authorization ending prior to H-1B approval, and must specifically monitor the employment of F-1 “cap gap” students, as these individuals may need to come off payroll and/or take additional steps to maintain their valid immigration status as of October 1, 2019.

The current version of Form I-9 expires on August 31, 2019.  The Department of Homeland Security has issued guidance instructing employers to continue to use the current version of Form I-9 until further notice. Employers must complete Form I-9 for all newly-hired employees to verify their identity and authorization to work in the United States.