Tag: Immigration

As previously reported,  under a new policy, USCIS will consider E and L nonimmigrant dependent spouses to be employment authorized  incidental to their status. This means that upon admission and issuance of a valid I-94 document showing  E or L-2 spousal status,  E and L nonimmigrant spouses will automatically be authorized to work without the need to apply to USCIS for an Employment Authorization Document (EAD).

The L or E spouse who wishes to work without obtaining an EAD  must present an I-94 admission document with a spousal annotation for Form I-9 employment verification purposes.  U.S. Customs and Border Protection Headquarters (CBP HQ) has now confirmed that as of January 31, 2022,  it has implemented admission codes so that the E and L spouse’s I-94 issued at a Port of Entry to the U.S. will bear the required annotation. The I-94 will be annotated with an “S” next to the E or L-2 status designation, signaling to prospective employers that the individual is authorized to work during the validity period of the I-94. Spouses admitted in E or L-2 status should review their I-94 document immediately upon admission to ensure that it contains the appropriate annotation.

E and L Spouses without Annotated I-94s

E and L spouses who were admitted prior to January 31, 2022 and who possess an I-94  without the “S” annotation must still present an EAD for work authorization.  As USCIS may take several  months to process  the EAD application, these individuals may consider departing the U.S. and reentering at a Port of Entry to secure a new, “S”-annotated I-94 from CBP. However, individuals should confer with immigration counsel prior to international travel to confirm that they possess the appropriate documentation for readmission to the U.S. and that their travel will result in issuance of a new I-94.  For example, reentry to the U.S. after a brief trip to Mexico or Canada typically does not result in issuance of a new I-94.

There are anecdotal reports that some CBP Deferred Inspection offices may be willing to amend the I-94 record to include the “S” annotation without international travel. This is discretionary. The local CBP Deferred Inspection office with jurisdiction over the admission should be contacted  in advance to ascertain whether it will consider the request.

For those spouses who were admitted to the U.S. prior to January 31, 2022 and who have filed an application to extend their L or E status while in the U.S., USCIS is also expected to implement the “S” annotation on the I-94 issued with the Notice of Approval (I-797).

Work Authorization for H-4 Spouses

As a reminder, this benefit is only available for E and L spouses.  Nonimmigrant H-4 spouses are required to have a valid I-94 document showing H-4 status and an EAD for employment. However, pursuant to new USCIS policy, H-4 spouses may receive an automatic extension of work authorization when they file to renew their EAD provided:

• The I-765 application to renew the EAD is timely filed prior to the EAD expiration date and
• The H-4 spouse has an unexpired I-94 showing valid H-4 status.

If the spouse has filed an I-539 application to extend H-4 status, the H-4 spouse will not qualify for the auto-extension of the EAD until the underlying H-4 status is granted.

The automatic extension of the EAD will be valid until:

• Expiration of the underlying I-94 showing H-4 status;
• 180 days from the prior EAD expiration; or
• Adjudication of the I-765 extension application, whichever comes first.

L-2 and E spouses who are relying on an EAD for employment may also benefit from  the automatic extension of the EAD under the same terms and conditions described above.

Gibney will continue to monitor implementation of the policies, and will provide updates. In the interim, if you have any questions, please contact your designated Gibney representative or email info@gibney.com.

USCIS formally confirmed that it will continue using its electronic registration process for fiscal year (FY) 2023 H-1B cap season. The registration period will run from March 1 through March 18, 2022.

H-1B CAP FY ‘23 REGISTRATION DETAILS

• 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 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 FY2023 H-1B cap.
• The Department of Homeland Security recently withdrew a final rule that would have made the registration selection wage-based. Thus, as in previous years, there will be a random selection process once the initial registration period closes on March 18.
• After the first round of selection, 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 no later than April 1, 2022.
• Employers may file an H-1B cap petition for selected registrants only; no substitutions are permitted.
• If by the end of the first filing window USCIS has not received enough petitions to reach the annual quota, they may designate subsequent filing windows until all the visa numbers are allocated.

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.

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.
• 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 CAP FY ’22 Numbers

• USCIS received 308,613 H-1B CAP registrations.
• Approximately 48% of registrations were submitted under the advanced degree cap.
• Over 37,000 U.S. employers submitted an H-1B CAP Registration on behalf of their employees.
• USCIS conducted three round of selections (in April, August and November) in an effort to reach the annual quota.

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

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

USCIS is expected to continue using its electronic registration process for fiscal year (FY) 2023 H-1B cap season. The registration period will run in March 2022 for a minimum of 14 calendar days.

H-1B CAP FY ‘23 Registration Overview

• 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 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 FY2023 H-1B cap.
• The Department of Homeland Security recently withdrew a final rule that would have made the registration selection wage-based. Thus, as in previous years, there will be a random selection process once the initial registration period closes in March.
• After the first round of selection, 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 no later than April 1, 2022.
• Employers may file an H-1B cap petition for selected registrants only; no substitutions are permitted.
• If by the end of the first filing window USCIS has not received enough petitions to reach the annual quota, they may designate subsequent filing windows until all the visa numbers are allocated.

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.

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.
• 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 CAP FY ’22 – Numbers

• USCIS received 308,613 H-1B CAP registrations.
• Approximately 48% of registrations were submitted under the advanced degree cap.
• Over 37,000 U.S. employers submitted an H-1B CAP Registration on behalf of their employees.
• USCIS conducted three round of selections (in April, August and November) in an effort to reach the annual quota.

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 will publish more information about the cap registration process in the weeks ahead. Gibney will provide additional information as it becomes available. For questions, please reach out to your Gibney representative or email info@gibney.com.

Effective immediately, USCIS will consider requests to expedite processing of applications to renew Employment Authorization Documents (EADs)  for health care workers.

Who Qualifies?

Qualifying health care workers may request expedited issuance of their EAD if they have:

• A pending EAD renewal application filed on Form I-765;  and
• An EAD  that expires within 30 days or less, or has already expired.

A qualifying health care worker is defined very broadly in the DHS advisory memorandum (“Healthcare / Public Health” section, pages 7-9).  In addition to individuals providing direct patient care, it includes, but is not limited to:

• Workers, including laboratory personnel, that perform critical clinical, biomedical and other research, development, and testing needed for COVID-19 or other diseases;
• Workers required for effective clinical, infrastructure, support services, and administrative operations, among other functions,  across the direct patient care and full health care and public health spectrum;
• Workers needed to provide laundry services, food services, reprocessing of medical equipment and waste management;
• Workers that manage health plans, billing and health information and who cannot work remotely;
• Workers at manufacturers including biotechnology companies and distributers of medical products and equipment, and pharmaceuticals;
• Pharmacy staff; and,
• Home health workers.

Please refer to the DHS advisory memo referenced above for a comprehensive list.

How to Request Expedite

According to the USCIS guidance for requesting an expedite , requestors may contact USCIS by phone to request the expedite and should be prepared to provide evidence of their profession or current employment as a health care worker.  USCIS does not indicate how quickly it will process the expedite request; only that it will process the application faster than its standard posted processing times, which are typically numerous months

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