Tag: Immigration Updates & FAQs

U.S. Citizenship and Immigration Services (USCIS) will conduct its annual electronic registration process for the Fiscal Year (FY) 2026 H-1B cap from March 7, 2024 to March 24, 2025.

Employers seeking to register employees in the H-1B cap lottery will need to have an active myUCSIS account, if they do not already have one. We strongly recommend that all employers contact their counsel for assistance, if necessary, in setting up their online accounts. While the account establishment process is relatively simple, employers do need to take care to establish the correct type of account to submit registrations.

As in prior years, employers should start planning for cap registration now by identifying foreign nationals they intend to register for the H-1B cap lottery, and ensuring that they have a properly configured myUSCIS account that it linked to their immigration counsel’s account.

General Overview

• Cap-subject U.S. employers intending to sponsor foreign nationals for H-1B status must first register each intended beneficiary electronically with USCIS during the cap registration period held in March.
• The current cap registration fee has been raised and is $215 for each individual registered. The fee is solely for registration of the intended beneficiary.
• The fee is not refunded if the registration is not selected, and it is not applied to the H-1B petition filing fee if a petition is ultimately filed for a selected beneficiary.
• The number of registrations submitted are expected to exceed the number of H-1B visas available under the annual statutory quota.
• There will be a random selection process once the initial registration period closes on March 24.
• After USCIS conducts the random selection process, it will notify employers and their counsel of selected beneficiaries. Employers may only sponsor H-1B cap petitions for individuals selected through the registration process; no substitution of beneficiaries is permitted.
• After registration selection, employers will have a 90-day period during which they may file H-1B cap petitions for selected beneficiaries.
• The 90-day H-1B cap petition filing period is expected to start no later than April 1, 2025.
• If by the end of the first filing window (which is presumed to be April 1, 2025 through June 30, 2025) USCIS has not received enough H-1B petitions to reach the annual quota, USCIS may conduct a second lottery from the pool of previously unselected registrations. USCIS will then designate subsequent filing periods until all H-1B visas are allocated to reach the annual statutory quota.

Highlights

In completing the registration, employers must identify whether the intended beneficiary qualifies for the H-1B visa pursuant to either the advanced degree cap (reserved for individuals holding a U.S. master’s degree or higher in a field of study related to the offered position) or the standard H-1B cap (reserved for individuals holding a Bachelor’s degree or higher in a field of study related to the offered position).

Employers may register multiple individuals at once, using a single online “batch” submission.

Employers may only submit one registration per intended beneficiary in any fiscal year. If an employer registers an individual more than once in the same fiscal year, all registrations submitted by that employer for that individual will be invalidated.

The employer’s authorized legal representative may prepare and submit cap registrations for the employer.

What Should Employers Do Now?

Employers should work with legal 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 for H-1B cap registration include, but are not limited to:
• New hires or candidates outside the U.S. who do not currently hold a valid U.S. work visa
• F-1 students completing a qualifying course of study or F-1 students currently working in the U.S. pursuant to Optional Practical Training (OPT) or STEM OPT
• J-1 interns/trainees who are currently working in the U.S. pursuant to a DS-2019 exchange visitor program
• L-1, TN, E-1, E-2, E-3, O-1, and/or other nonimmigrant visa holders who wish to change to H-1B status in the future
• Dependent spouses of current nonimmigrant visa holders who may lack work authorization.

Additional Information

Not All H-1B Petitions are Subject to the Cap
Certain individuals and employers are not subject to the annual H-1B cap or cap registration, including:

• Individuals who currently hold H-1B status and who were previously counted against the cap. In most instances, individuals who were counted against the cap in a previous fiscal year are not again subject to the annual cap. This may include petitions:
  • to extend status for current H-1B visa holders;
  • to amend H-1B status due to changes role or location changes for current H-1B workers;
  • to change H-1B employers; and,
  • for concurrent H-1B employment with an additional employer.
• Individuals who are citizens/nationals of Singapore and Chile may instead be eligible for the H-1B1 visa.
• Cap exempt organizations. H-1B cap petitions filed for employment at institutions of higher education or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations, are cap-exempt. H-1B petitions for employment at these institutions are not subject to an annual quota and may be filed any time throughout the year.

H-1B Categories and Annual Quotas

Cap-subject H-1B petitions generally fall within two categories:

“Standard” petitions. The minimum educational requirement for a standard H-1B petition is a Bachelor’s degree or professionally evaluated experience equivalent. Standard cases are capped at 65,000 visas annually with approximately 6,800 reserved for nationals of Chile and Singapore.

“Advanced degree” or “Master’s cap” petitions. The minimum educational requirement for an advanced degree H-1B petition is 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.

As a reminder, employers will need to establish a registrant account with USCIS, which will need to be linked to an organizational account maintained by their counsel (presuming they are registering with the assistance of an attorney). Please contact immigration counsel now to ensure you are well-positioned for H-1B cap season.

Gibney will provide additional updates as they are announced. In the interim, additional information is available on the USCIS website here.  If you have questions about H-1B cap or if you require assistance with cap registration, please contact your Gibney representative or email info@gibney.com.

Effective January 22, 2025, USCIS will no longer require Adjustment of Status applicants to obtain a COVID-19 vaccination as part of the Adjustment of Status process. USCIS will waive all requirements that Adjustment of Status applicants have received the COVID-19 vaccination previously required on Form I-693, Report of Immigration Medical Examination and Vaccination Record. USCIS has confirmed that they will not issue a Request for Evidence or Notice of Intent to Deny and will not deny any Adjustment of Status application based on the applicant’s failure to present documentation confirming receipt of the COVID-19 vaccination.

While USCIS has not provided a specific reason for this policy change, it likely aligns with evolving public health guidelines, including updated assessment of public health risks and vaccination coverage, as well as the current status of the COVID-19 pandemic.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

 

 

The Department of Homeland Security (DHS) has published a final rule with key updates to the H-1B specialty occupation nonimmigrant visa program. The final rule is aimed at modernizing the H-1B program by improving efficiency and providing greater flexibility for petitioners and beneficiaries. Highlights of the final rule include:

• Updates to the definition of a “specialty occupation” that are intended to more closely align with current hiring practices and industry requirements.
• Directs United States Citizenship & Immigration Services (USCIS) officers to give deference to prior H-1B petition approvals when reviewing a subsequent petition with the same parties and material facts.
• Clarifies when petitioners must submit a new or amended H-1B petition due a change in the beneficiary’s worksite.
• Significantly extends the “cap-gap” period for eligible F-1 students to maintain work authorization while awaiting adjudication of a H-1B change of status petition.
• Provides greater flexibility for petitioners and beneficiaries to potentially qualify for the H-1B cap exemption.
• Confirms USCIS’s authority to conduct site visits and clarifies the scope of visits and implications for refusing to comply.

BACKGROUND

The final rule amends DHS regulations by finalizing many updates previously proposed in 2023 or codifying existing USCIS practices. The rule mainly amends regulations affecting H-1B specialty occupation workers, although some of the provisions narrowly impact other nonimmigrant classifications including L-1, O, P, E-3, TN, and F-1, among others. The final rule has been published in the Federal Register on 12/18/2024 and will be effective 01/17/2025.

KEY ELEMENTS OF THE FINAL RULE

• Updated “Specialty Occupation” Standard: The final rule codifies and clarifies the specialty occupation standard for H-1B positions, including confirming that a petitioner may accept a range of qualifying degree fields for a H-1B position, as long as each of the required degree fields is directly related to the job duties of the position.
• USCIS Deference to Previously Approved Petitions: The final rule codifies current policy directing USCIS adjudicators to give deference to previous USCIS approvals when adjudicating H-1B petitions involving the same parties and material facts. This applies to extension petitions filed for the H-1B, L-1, O, P, TN, and E-3 nonimmigrant visa classifications, among others.
• Change in Worksite and Filing New or Amended Petitions: A petitioner must submit an amended or new H-1B petition if a new work location requires a new Labor Condition Application (LCA), as determined by the Dept. of Labor’s definition of an “area of intended employment.” The petition must be approved by USCIS before the H-1B worker may perform work under the changed conditions, unless the H-1B worker is eligible for portability.
• Expands “Cap-Gap” Provisions for F-1 Students: F-1 students with a pending H-1B change of status petition will receive an automatic extension of their F-1 nonimmigrant status and OPT or STEM OPT work authorization through April 1 of the relevant fiscal year. This is a significant expansion of the current “cap-gap” period for eligible F-1 students, which is limited to October 1. This expanded “cap-gap” period should limit disruptions in work authorization for F-1 students with long pending H-1B change of status petitions or those selected in a second round of the H-1B cap lottery.
• Maintenance of Status Evidence for Extensions or Amendments: Evidence of maintenance of status is required for petitions where there is a request to extend or amend the beneficiary’s stay. This applies to all employment-based nonimmigrant visa classifications that use Form I-129 including H-1B, L-1, TN, O, and E-3, among others. This measure is expected to reduce the rate of RFEs by setting forth the specific evidence required to show maintenance of status.
• Updates to Regulations Governing H-1B Cap-Exempt Petitions: The final rule provides greater flexibility for petitioners and beneficiaries to potentially qualify for the H-1B cap exemption. Specifically, the rule revises the definition of “nonprofit research organization” and “governmental research organization” to include organizations that conduct research as a fundamental activity, but it need not be the organization’s principal or foremost activity. The rule also recognizes that certain beneficiaries may qualify for the H-1B cap exemption when they are not directly employed by a qualifying organization, but spend at least half of their time providing essential work that supports or advances the fundamental research activity of the qualifying organization.
• Additional Provisions Related to Compliance and Program Integrity:
  • Updated requirements to demonstrate that there is a bona fide job offer for a specialty occupation position. USCIS may request contracts, work orders, or similar evidence to confirm that a bona fide position exists for the beneficiary. The rule also revises the definition of a U.S. employer for H-1B purposes.
  • Measures enabling beneficiary-owners to access and participate in the H-1B program. The final rule codifies a petitioner’s ability to qualify as a U.S. employer, even where the beneficiary possesses a controlling interest in that petitioner.
  • USCIS confirms its authority to conduct site visits and clarifies the scope of inspections. Inspections may include telephonic and electronic verifications and on-site inspections. The rule also clarifies that refusal to comply with site visits may result in denial or revocation of the petition.
  • For third-party placements, USCIS will look at the third-party’s requirements for the beneficiary’s position in assessing whether the position qualifies as a specialty occupation.

WHAT THIS MEANS FOR EMPLOYERS

The regulation includes welcome changes that are expected to benefit employers.  Implementation of the regulation is expected to increase predictability in the adjudications of initial H-1B petitions, as well as extension petitions across multiple visa categories, where the terms of employment have not materially changed.  The expansion of cap-gap provisions for F-1 students is expected to reduce instances of disruption in work authorization.  The expansion of the H-1B cap exemption may provide additional flexibility for government and non-profit employers that conduct research.  Finally, the measure enabling beneficiary-owners to participate in the H-1B program is expected to promote access to H-1B nonimmigrant visas for entrepreneurs and start-up owners.

For questions, please contact your Gibney representative or email info@gibney.com.

United States Citizenship and Immigration Services (USCIS) has reached the Fiscal Year (FY) 2025 H-1B cap.

USCIS conducted its initial  H-1B cap lottery in March 2024, and employers with selected registrations had a 90-day window during to file H-1B cap petitions for designated beneficiaries. USCIS conducted an additional lottery and has received enough petitions to reach the mandated 65,000 H-1B visa regular cap and the 20,000 visas for advanced degree holders. There will be no third lottery.

WHAT EMPLOYERS CAN EXPECT
Employers may expect that over the next few days, USCIS will update non-selected registrants’ online accounts to change the status of pending FY 2025 registrations from “Submitted” to “Not Selected.”

PETITIONS NOT SUBJECT TO THE H-1B CAP
USCIS will continue to accept and process H-1B petitions that are not subject to the cap. These include filings for extensions of status, amended petitions, changes of employer, concurrent employment for existing H-1B workers, and petitions filed by organizations that are cap-exempt.

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

USCIS provided updated guidance in the USCIS Policy Manual with regard to the F-1 and M visa classifications utilized by international students for vocational, graduate and post-graduate study at U.S. academic institutions. The new USCIS policies address when students may be eligible for optional practical training (OPT) for Science, Technology, Engineering, and Mathematics (STEM) fields. The update also provides guidance on online study, school transfers, the grace period, and study abroad.

Background

F-1 and M-1 are two of the primary visa categories used by foreign students to attend academic programs in the U.S.  Following a period of full-time study, new grads are eligible to apply for one year of work authorization, known as Optional Practical Training (OPT), to gain practical work experience in their area of study.  (OPT is also available pre-degree completion in certain circumstances.)  Students who have earned a degree in a designated STEM field are eligible to apply for a 24-month extension of post-completion OPT, to work for a total of 36 months.

Key Takeaways

• Online study: Students may count one class, three credits (or the equivalent) per semester toward a full course of study for online/distance learning.
• Transfers: Students may transfer between Student and Exchange Visitor Program (SEVP)-certified schools at the same academic level or move between educational levels. Transfers are also permitted during the 60-day grace period following an authorized period of post-completion of OPT.  Previously transferring students were required to be pursuing a full course of study or be engaged in post-completion optional practical training (OPT) until the transfer release date.
• Grace Period: During the 60-day grace period, in addition to transferring schools as noted above, students may change their education level or file an application or petition with USCIS to change to another nonimmigrant or immigrant status.
• OPT Eligibility: Students are eligible for post-completion OPT after completion of an associate’s, bachelor’s, master’s, or doctoral degree program.
• STEM OPT: Technical corrections to the STEM OPT guidance and clarifies the time periods during which students may apply for STEM OPT.
• Study Abroad: Students enrolled in an ICE SEVP-certified school during a study abroad program may remain active in SEVIS if the program lasts less than 5 months. For study abroad programs that are over 5 months, a new Form I-20 is required.
• Extensions: The guidance also corrects the period during which students may apply for extensions

What this Means for Employers

The new guidance is effective immediately and will apply to any requests or applications that are pending or filed on or after the publication date.  It also supersedes any prior guidance related to the areas that it covers. The changes and clarifications are promising. USCIS has modernized its approach to online courses, a growing area for U.S. colleges and universities.  The new guidance also makes it easier for students to remain in valid status during transfers and other changes to their academic programs. Finally, the guidance clearly establishes eligibility and protocols for OPT and STEM OPT.

Also Good to Know…

International students are on the rise! Over 1 million students from more than 210 places of origin studied at U.S. academic institutions during the 2022/2023 school year, contributing approximately $40 billion to the U.S. economy. This was a substantial increase in student enrollment from the prior years.  A majority of international students are pursuing degrees in STEM fields, with Computer Science and Business Administration as the most popular majors.  In 2023, over 160,000 students participated OPT, a 37% increase from the previous year.  (See https://www.boundless.com/research/international-students-studying-in-the-united-states-trends-and-impacts/ for more statistics.)

For more information, please contact your designated Gibney attorney or email info@gibney.com.

The Department of State released the September  2024 Visa Bulletin. USCIS will continue to accept employment-based Adjustment of Status applications based on the Final Action Dates chart. Most Employment-Based Categories will remain unchanged under Final Action Dates for September with further retrogression observed for EB-3 Professional, Skilled Worker and Other Workers for most countries, as detailed below.

Employment-Based (EB) Priority Date Summary for Final Action Dates

USCIS confirmed that it will honor the Final Action Dates chart for purposes of eligibility to file an Adjustment of Status application. The Final Action Dates  are as follows:

EB-1, First Preference Category

• EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current.
• EB-1 China and India will hold steady with a Final Action Date cutoff of November 1, 2022 and February 1, 2022, respectively.   

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will remain at March 15, 2023.
• China: Final Action Date will maintain a cutoff date of March 1, 2020.
• India:  Final Action will hold steady at July 15, 2012.

EB-3, Third Preference Category (Professional and Skilled Workers)

• EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will retrogress by approximately one year to December 1, 2020.
• China: Final Action Date will remain at September 1, 2020.
• India: Final Action Date will hold steady at October 22, 2012.

Other Workers

• Other Workers will retrogress by one month to December 1, 2020, for all countries except China, India and Philippines which will hold steady from last month:
  • India will remain at October 22, 2012.
  • Philippines will hold steady at May 1, 2020.
  • China will hold steady at January 1, 2017.

EB-5, Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cut-off date of December 1, 2020 and December 15, 2015, respectively. All other countries will remain current.
• The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.

Individuals with a priority date that is before the published cut-off date may file an Adjustment of Status application based on the dates outlined above.

What Should Employers Expect?

As predicted in the July Visa Bulletin, further retrogression in the EB-3 Worldwide category was implemented in the September Visa Bulletin. However, the Dept. of State anticipates that the Final Action Dates for EB-3 Professional, Skilled Worker and Other Workers will advance in October 2024 with date movement dependent on worldwide demand and the estimated FY 2025 category limit. Due to a steady increase for employment-based visas during the fiscal year, the Dept. of State notes that numerical limits to most employment-based preference categories for FY 2024 are expected to be reached during September, if not sooner. Accordingly, Employers should file Adjustment of Status applications for eligible applicants as soon as possible as most employment-based categories are expected to reach their numerical limits in the near future.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

With the second round of the H-1B cap lottery just completed, the United States Citizenship and Immigration Service (USCIS) has now released statistics for this year’s H-1B cap selections as well as statistics on H-1B alternatives such as O-1A and EB-2 NIW cases.

USCIS reported that the total number of unique H-1B beneficiaries this year for fiscal year (FY) 2025 was approximately 442,000. USCIS selected 114,017 beneficiaries, resulting in 120,603 selected registrations in the initial selection, and an additional 13,607 beneficiaries in the second lottery, resulting in 14,534 selected registrations, for an overall total of 135,137 (about 30%) selected registrations for FY 2025. Trends on H-1B alternatives show an upward trend in filings and favorable approval rates, particularly for jobs in STEM fields.

Background

The H-1B program allows U.S. employers to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent.  Currently there is an annual numerical limit of 65,000 visas each fiscal year (known as the “Regular cap”). There are an additional 20,000 H-1B visas available for beneficiaries with a master’s degree or higher from a U.S. institution of higher education (known as the “Master’s cap”). The Regular cap is further reduced by carve-outs for the H-1B1 visa for nationals of Chile and Singapore under the provisions of free trade agreements between the U.S. and each country, leaving the actual number of Regular cap H-1B visas that are available at 58,200.

Each year, USCIS selects more registrations than there are visa numbers available based on its projections of how many selected employers will file petitions and receive USCIS approval.

The current limit on H-1B visas was set in 1990 when the H-1B category was created by Congress. The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) and the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) made significant changes to policy and procedures for the H-1B classification, including providing temporary increases to the numerical limits. Under ACWIA, the number of available H-1B visas increased to 115,000 in FY 1999 and 2000. AC21 further increased the number of available visas to 195,000 for FY 2001, FY 2002, and FY 2003. In FY 2004, the H-1B cap reverted to 65,000 visas per fiscal year and remains at that level. Except for the special allocation of visas for the Master’s cap, established in 2006, there have been no increases to the number of H-1B visas that are available each year since the sunset of the ACWIA and AC21 provisions.

Key Takeaways from this H-1B Cap Season

The number of eligible registrations dropped by a noteworthy 38.6%, a welcome correction under the new beneficiary-centric selection process. Under the new procedures implemented by the Improving the H-1B Registration Selection Process and Program Integrity rule, now each unique beneficiary is entered into the selection process once, regardless of how many registrations have been submitted on their behalf. This measure was enacted as an attempt to combat fraud in the process that was seen in prior years when multiple employers would jointly file registrations for the same beneficiary to gain an unfair advantage in selection rates. Overall, there was an average of 1.06 registrations per beneficiary in FY 2025 as compared to 1.70 for FY 2024.

The number of unique employers submitting registrations in FY 2025 (approximately 52,700) was comparable to the number in FY 2024 (approximately 52,000). The number of unique beneficiaries in FY 2025 (approximately 442,000) was slightly lower than the number in FY 2024 (approximately 446,000).

Good News on H-1B Visa Alternatives

Due to the limited numbers of H-1B visas available, U.S. employers are driven to leverage alternatives to the H-1B classification in order to retain talent in their workforce.

USCIS has also released statistics on some of the widely-used alternatives to the H-1B visa category, including the O-1A visa for individuals with extraordinary ability and the National Interest Waiver (NIW) immigrant visa petition, which provides a fast track to U.S. permanent residence by bypassing the PERM labor certification process. Generally, the results are positive:

• O-1A filings have doubled since 2018, with an overall approval rate at 92% for FY 2023.
• National Interest Waiver (NIW) immigrant visa petition filings have quadrupled since 2018, and represented 43% of all I-140 EB-2 filings in FY 2023. The approval rate for NIW cases was at 79% in FY 2023.

The USCIS release further analyzes statistics for these petition types filed on behalf of individuals working in science, technology, engineering, or math (STEM) fields. Following on policy guidance issued by USCIS in January 2022 that set forth standards for O-1 and NIW adjudications for STEM workers and emphasized the prioritization of STEM NIW beneficiaries, or O-1, NIW there has been a general improvement in approval rates across both categories.

• STEM O-1A approvals have doubled since 2018. The approval rate has increased by approximately 78% since FY 2021, although there was a slight decrease in the number of approvals from FY 2022 to FY 2023.
• STEM NIW filings have tripled since 2018 and there was a marked increase from 13,550 cases receipted in FY 2022 to 20,950 cases receipted in FY 2023. The USCIS data shows that the vast majority of these cases filed in FY 2022 and FY 2023 were approved.

What Employers Need to Know

The H-1B program, which is based on numerical limits set over 30 years ago, still remains terribly short of meeting the needs of the U.S. economy in the global competition for talent, particularly in STEM fields. While it is welcoming to see positive trends in O-1A extraordinary ability petitions and NIW immigrant visa petitions, these classifications are only available to select foreign nationals who have achieved a high level of acclaim in their field of endeavor or are working in a limited number of industries.

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

U.S. Citizenship and Immigration Services (USCIS) provided updated guidance on the eligibility requirements for the International Entrepreneur Rule (IER). Starting on October 1, 2024. USCIS will increase investment and revenue thresholds for inflation, as permitted by existing regulations which allow for increases every three (3) years.

Background

The Obama/Biden Administration introduced the International Entrepreneur Rule in 2017 for high-potential startups. The rule allows the Department of Homeland Security (DHS) to grant a period of authorized stay (parole) to noncitizen entrepreneurs on a case-by-case basis.

Key Elements of the Entrepreneur Rule:

• Entrepreneurs may be either living abroad or already in the US, and must own at least 10% of the US startup business
• Start-up entities must have been formed in the US within the past five years
• Spouses may apply for employment authorization after being paroled into the US (children are not eligible for employment authorization)
• Entrepreneurs may be granted an initial parole period of up to 2½ years
• Parole may be renewed for an additional 2½ years, for a maximum of 5 years
• Up to three entrepreneurs are eligible per startup

Increase to Investment/Revenue Thresholds

Starting on October 1, 2024. USCIS will increase investment and revenue thresholds for inflation.

For new applications, entrepreneurs must show at least $311,071 (up from $264,147) in investment from qualified US investors or at least $124,429 (up from $105,659) in qualified government awards or grants. If the startup only partially meets this criteria, alternate evidence of potential for rapid growth and job creation may be presented.

For a second period of authorized stay, entrepreneurs must show that the startup has received at least $622,142 (up from $528,293) in qualified investments, government grants or awards, created at least five qualified jobs, or reached at least $622,142 (up from $528,293) with an average of at least 20% in annual revenue growth.

The application fee will not increase.

New Criteria for Qualified Investors

USCIS also updated the criteria for qualified investors, requiring investors to have a history of substantial investment in successful startups.

The individual/organization must have made investments in startup entities of at least $746,571 (up from $633,952) in total within the last five years. After such investment, at least two of the startup entities must have created at least five qualified jobs or generated at least $622,142 (up from $528,293) in revenue with annual revenue growth of at least 20%.

Backlog Resolution

USCIS has indicated that as of May 2024, all applications have either been approved, denied or issued an RFE, and there is no backlog.

For questions, please contact your Gibney representative or email info@gibney.com.

USCIS announced today that it completed the second H-1B cap lottery for fiscal year (FY) 2025 H-1B cap. All employers with selected registrations have been notified. Employers with selected registrations from the second lottery may file an H-1B petition for the beneficiary of a selected registration during the 90-day period from August 8, 2024 to November 7, 2024.

USCIS did not conduct a second selection for the advanced degree exemption (the master’s cap).

What’s Next

• Employers with selected registrations will see updates in their myUSCIS accounts, including a selection notice and details of when and where to file the H-1B cap petition.
• Only employers with selected registrations may file H-1B cap-subject petitions for FY 2025 and only for the beneficiary named in the applicable selected registration notice; no substitution of beneficiaries is permitted.
• An H-1B cap-subject petition for a selected registration must be properly filed within the filing period specified on the relevant registration selection notice.
• Registration selection only indicates that employers are eligible to file H-1B cap-subject petitions; it does not signify that the petition will be approved.
• Petitioners filing H-1B cap-subject petitions must submit evidence and establish eligibility for approval based on existing statutory and regulatory requirements.

Important Filing Reminders

• As of April 1, 2024, USCIS adjusted feesfor most immigration applications and petitions.
• The new 04/01/24 edition of Form I-129, Petition for a Nonimmigrant Worker must be used.
• A final premium processing fee rulethat increased the filing fee for Form I-907, Request for Premium Processing Service took effect February 26, 2024.

Additional Information

USCIS has reported that during the registration period for the FY 2025 H-1B cap, it saw a significant decrease from FY 2024 in the total number of registrations submitted and, more importantly, in the number of eligible registrations submitted, returning the submission rates to FY 2023 levels. This drop was attributed to USCIS’s implementation of a new selection process this year to combat abuse of the H-1B registration process which took place in FY 2024.

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

 

USCIS has announced that it will soon conduct a second round of H-1B cap lottery selection for fiscal year (FY) 2025 H-1B cap from the previously submitted registrations. USCIS has not indicated when the lottery will take place, but stated that all employers with selected registrations from the second lottery will be notified through their USCIS online accounts. Employers with selected registrations will be able to file an H-1B petition for the beneficiary of a selected registration during the 90-day period to be specified by USCIS.

USCIS will not be conducting a second selection for the advanced degree exemption (the master’s cap), as this cap already has been met. However, the second round of selection for the H-1B cap will include registrations that were eligible for the master’s cap as well as the regular cap.

As previously reported, USCIS conducted its initial H-1B cap lottery in March 2024, and selected employers had a 90-day window during which to file H-1B cap petitions for selected beneficiaries. A second lottery selection will be conducted because the number of H-1B petitions ultimately submitted and approved during the initial H-1B filing period were not sufficient to meet the annual statutory H-1B cap. H-1B cap registrations that were not selected in the initial lottery remained in a reserve and the second lottery will be conducted from this reserve.

WHAT THIS MEANS FOR EMPLOYERS AND FOREIGN NATIONALS:

• Employers with selected registrations will see updates in their myUSCIS accounts, including a selection notice and details of when and where to file the H-1B cap petition.
• Only employers with selected registrations may file H-1B cap-subject petitions for FY 2025 and only for the beneficiary named in the applicable selected registration notice; no substitution of beneficiaries is permitted.
• An H-1B cap-subject petition for a selected registration must be properly filed within the filing period to be specified on the relevant registration selection notice.
• Registration selection only indicates that employers are eligible to file H-1B cap-subject petitions; it does not signify that the petition will be approved.
• Petitioners filing H-1B cap-subject petitions must submit evidence and establish eligibility for approval based on existing statutory and regulatory requirements.

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