Tag: Immigration

USCIS announced that the initial electronic registration period for the fiscal year (FY) 2024 H-1B cap season will run from noon Eastern on March 1 through noon Eastern on March 17, 2023.

H-1B CAP FY ‘24 REGISTRATION DETAILS

• Cap-subject H-1B employers intending to sponsor H-1B workers must first register each intended beneficiary electronically with USCIS during the designated registration period (March 1 through March 17).
• There is a $10 fee for each registration.
• If the number of registrations received by March 17 exceeds the number of H-1B visas available under the annual quota as expected, USCIS will randomly select a sufficient number of registrations projected to reach the FY 2024 H-1B cap.
• USCIS expects to conduct the random selection and notify employers of selected registrations by March 31, 2023.
• After the first round of selection, employers will have a 90-day window during which to file H-1B cap petitions for the beneficiary named in the selected registration. The petition filing period is expected to start no later than Monday, April 3, 2023.
• Employers may file an H-1B cap petition only for the beneficiary named in the selected registration; no substitutions are permitted.
• If by the end of the first 90-day filing window USCIS has not received enough petitions to reach the annual quota/H-1B cap, USCIS may designate subsequent filing windows until the H-1B statutory quota is reached.

More information about H-1B cap and the electronic registration process is available at Gibney’s Alert – Plan Now For H-1B Cap Season.

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

 

 

 

U.S. Citizenship and Immigration Services (USCIS) again extended certain COVID-19-related flexibilities, this time through March 23, 2023.  However, USCIS anticipates that this will be the final extension for these accommodations.

WHAT THIS MEANS FOR EMPLOYERS AND FOREIGN NATIONALS

Under this policy, petitioners and applicants have 60 additional calendar days after the due date to respond to USCIS requests and notices issued between March 1, 2020 and March 23, 2023 (inclusive), including:

• Requests for Evidence
• Notices of Intent to Deny, Revoke or Rescind
• Notices of Intent to Terminate EB-5 regional centers
• Notices of Intent to Withdraw Temporary Protected Status
• Motion to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant

For USCIS decisions issued between November  1, 2021 and March 23, 2023 (inclusive), applicants will have 90 additional calendar days from the date of decision notice to file a Form I-290B appeal or motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings.

Absent unforeseen developments with the pandemic, USCIS does not intend to extend these flexibilities beyond March 23, 2023.

USCIS SIGNATURE FLEXIBILITY POLICY

As a reminder, reproduced signature flexibility on forms and documents is now permanent USCIS policy. Under the policy, USCIS will accept all benefit forms and documents bearing an electronically reproduced signature. Note that this is different than an electronic signature. The USCIS policy requires that  the document may be scanned, faxed, photocopied or similarly produced, provided that the copy is of an original document containing an original handwritten (or “wet”) signature.   The original signed form or document bearing the wet signature should be retained, as USCIS may request the original document at any time.

Effective January 25, 2023, USCIS resumed concurrent processing of  I-539 applications to extend/change nonimmigrant status  and I-765 applications for employment authorization filed by H-4 and L-2 spouses and minor children when the applications are filed with the principal H or L visa holder’s I-129 petition for nonimmigrant worker.

To benefit from the policy, the I-129, I-539, and I-765 applications must be properly filed at the same USCIS Service Center at the same time.  If filed concurrently, all of the applications will be adjudicated together, regardless of whether filed under regular or premium processing service.

This reversal in USCIS policy is the result of a settlement agreement with the Department of Homeland Security in Edakunni v. Mayorkas,  a class action law suit that challenged H-4 and L-2 adjudication delays. These delays left many L-2 and H-4 spouses and minor children in status limbo and spouses without work authorization, even after the principal visa holder’s petition was approved.

Prior to 2019,  L-2 and H-4 dependent applications were  generally adjudicated concurrently with the principal visa holder’s  petition, but policies implemented by the Trump Administration, hostile to spousal work authorization, derailed adjudications, resulting in significant processing delays and loss of work authorization for many H-4 and L-2 spouses.

The commitment  to once again bundle the adjudication of the applications essentially returns USCIS to its pre-2019 adjudication practice.  The Edakunni settlement agreement is valid for two years.

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

U.S. Citizenship and Immigration Services (USCIS) further expanded  premium processing for Form I-140, Immigrant Petitions for Alien Workers, marking the final phase of implementing premium processing for employment-based immigrant petitions.

Effective January 30, 2023, premium processing will be available for the following petitions:

• All I-140 petitions filed on behalf of multinational executives and managers (EB-1(3) classification), including pending petitions and initial filings.
• All I-140 petitions for persons seeking a National Interest Waiver (EB-2(1) NIW classification), including all pending petitions and initial filings.

HOW TO APPLY

Petitioners who wish to request premium processing must file the Form I-907, Request for Premium Processing Service, and pay a supplemental fee of $2,500. USCIS will have 45 days from receipt of the premium processing request and fee to adjudicate the petition.

WHAT’s NEXT?

USCIS will expand premium processing service offerings to additional benefits, as follows:

• March 2023: F-1 students seeking OPT and F-1 students seeking STEM OPT extensions who have a pending Form I-765, Application for Employment Authorization.
• April 2023: F-1 students seeking OPT and F-1 students seeking STEM OPT extensions who are filing an initial Form I-765, Application for Employment Authorization.

USCIS expects to announce the specific effective date for the above-referenced categories in February.

LOOKING AHEAD

USCIS intends to expand premium processing service to the following applications:

• May 2023: Certain F-1 students and J-1 exchange visitors with pending Form I-539, Application to Extend/Change Nonimmigrant Status.
• June 2023: F-1 students and J-1 exchange visitors filing initial Form I-539 applications.

The author wishes to thank Law Clerk Jesse Wang for his contributions to this alert.

Gibney will continue to provide premium processing service updates as USCIS expands its offerings. If you have any questions, please contact your designated Gibney representative or email info@gibney.com.

U. S. Citizenship and Immigration Services (USCIS) will conduct its annual electronic registration process for the Fiscal Year (FY) 2024 H-1B cap in March 2023. Employers should start planning for cap registration now by identifying foreign nationals they intend to register for the H-1B cap lottery.

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 is $10 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.
  • Note: USCIS has issued a proposed rule that, if implemented, will increase the registration fee substantially. However, the rule is not expected to be finalized and implemented before this year’s registration period.
• The number of registrations submitted are expected to exceed the number of H-1B visas available under the annual statutory quota.
• As in previous years, there will be a random selection process once the initial registration period closes in March.
• After USCIS conducts the random selection process, it will notify employers 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, 2023.
• If by the end of the first filing window (June 30, 2023) 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.

Historical H-1B Cap Statistics

In FY 2023

• USCIS received 483,927 H-1B cap registrations.
• Approximately 31% of registrations were submitted under the advanced degree cap.
• Over 48,000 prospective U.S. employers submitted an H-1B cap registration on behalf of an intended beneficiary.
• USCIS conducted only one random selection process after the March registration period, initially selecting 127,600 registrations, which proved enough to reach the annual quota.

In FY 2022

• USCIS received 308,613 H-1B cap registrations.
• Approximately 48% of registrations were submitted under the advanced degree cap.
• Over 37,000 prospective U.S. employers submitted an H-1B cap registration on behalf of an intended beneficiary.
• USCIS conducted three rounds of selections (in April, August, and November 2021) to reach the annual quota.

USCIS will announce specific dates for the March registration period  in the weeks ahead.     Gibney will also provide updates as they are announced. In the interim, additional information is available 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.

U.S. Citizenship and Immigration Services (USCIS) continues to extend certain COVID-19-related flexibilities through Jan. 24, 2023.

What This Means for Employers and Foreign Nationals

Under this policy, petitioners and applicants have 60 additional calendar days after the due date to respond to USCIS requests and notices issued between March 1, 2020 and Jan. 24, 2023, including:

• Requests for Evidence
• Notices of Intent to Deny, Revoke or Rescind
• Notices of Intent to Terminate EB-5 regional centers
• Notices of Intent to Withdraw Temporary Protected Status
• Motion to Reopen an N-400 Pursuant to 8 CFR 335.5, Receipt of Derogatory Information After Grant

For USCIS decisions issued between Nov. 1, 2021, and Jan. 24, 2023, applicants will have 90 additional calendar days from the date of decision notice to file a Form I-290B appeal or motion, or Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings.

USCIS Signature Flexibility Policy

As a reminder, reproduced signature flexibility on forms and documents is now permanent USCIS policy. Under the policy, USCIS will accept all benefit forms and documents bearing an electronically reproduced signature. Note that this is different than an electronic signature. The USCIS policy requires that  the document may be scanned, faxed, photocopied or similarly produced, provided that the copy is of an original document containing an original handwritten (or “wet”) signature.   The original signed form or document bearing the wet signature should be retained, as USCIS may request the original document at any time.