Articles Posted in H-1B Lottery

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Unsurprisingly, this week we learned that the Trump administration is taking further steps to toughen the process of applying for an H-1B visa extension/renewal request, and that of other highly sought-after non-immigrant work visa types filed using Form I-129 Petition for Nonimmigrant Worker such as the H, O, P, L, and R work visas. The news comes as part of the President’s ongoing plan to prioritize the employment of American workers over foreign workers, outlined in the President’s Executive Order “Buy American, Hire American.”

On October 23, 2017, the United States Citizenship and Immigration Services (USCIS) announced that the agency will be updating its adjudication policy “to ensure petitioners meet the burden of proof for a non-immigrant worker extension petition.” The change in policy specifically provides that USCIS officers will “apply the same level of scrutiny to both initial petitions and extension requests” for the H-1B visa as well as other nonimmigrant visa types.

Per USCIS, this policy will now apply to “nearly all non-immigrant classifications filed using Form I-129 Petition for Nonimmigrant Worker.” This means that all nonimmigrant worker visa renewal requests, made using Form I-129, will be subject to the same level of scrutiny that was applied during the foreign worker’s initial non-immigrant work visa request.

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Today, September 18, 2017, the United States Citizenship and Immigration Services (USCIS), announced that the agency will be resuming premium processing for all H-1B visa petitions subject to the fiscal year 2018 cap. This means that petitioners who filed an H-1B cap subject petition or H-1B cap exempt petition (for the advanced degree exemption) subject to fiscal year 2018, may upgrade to premium processing starting today.

USCIS previously announced that the agency had resumed premium processing of H-1B petitions filed under the Conrad 30 waiver program, as well as interested government agency waivers, and certain cap-exempt H-1B petitions.

Premium processing for all other H-1B petitions including extensions of stay will remain temporarily suspended. USCIS will announce when premium processing will resume for other remaining H-1B petitions not subject to the fiscal year 2018 cap. Petitioners who cannot file for premium processing may request for their petitions to be processed expeditiously, however such requests will only be granted on a discretionary basis.

What is premium processing?

Premium processing service refers to an optional premium processing service offered by USCIS to employers filing Form I-129 (Petition for a Non-immigrant Worker) or Form I-140 (Immigrant Petition for Alien Worker). Premium processing guarantees 15 calendar day processing to petitioners who make use of the service. Applications that are not processed within 15 calendar days, receive a refund of the $1,225 premium processing fee, and are processed expeditiously. To make use of the service, petitioners must file Form I-907 with their application and include the appropriate fees. The I-907 request for premium processing service can be filed together with an H-1B petition or separately pending a decision. The service is only available for pending petitions with USCIS.

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On April 18, 2017, the President signed the controversial executive order, Hire American, Buy American, “in order to promote the proper functioning of the H-1B visa program.”

The President’s executive order directs the heads of various departments to suggest reforms to the H-1B visa worker program, a lottery based work visa program reserved only for professionals working in specialty occupations. The EO specifically aims to “ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

Since the President signed the executive order, no reforms or regulations have been passed by Congress to enforce the provisions of the order on the H-1B visa worker program, however enforcement of the provisions of the executive order are beginning to be seen through the adjudicatory measures of USCIS immigration officials.

As of late, the United States Citizenship and Immigration Services (USCIS) has become a lot tougher in adjudicating H-1B visa applications. This means that securing an H-1B work visa will become a lot more difficult going forward. For the last few months, USCIS has been aggressively issuing more numerous and more stringent “requests for evidence” in comparison to previous years. This phenomenon has manifested itself generally in response to work visa applications for highly skilled workers, and is not just reserved to H-1B work visa applications.

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Great news for cap-exempt H-1B applicants! Effective immediately, the United States Citizenship and Immigration Services (USCIS) will resume premium processing services for certain cap-exempt H-1B petitions.

As you may recall in early April, USCIS temporarily suspended expedited processing of all H-1B petitions to reduce H-1B processing times and prioritize processing of H-1B extensions nearing the 240-day mark.

Today, July 24, 2017, USCIS announced that certain cap-exempt H-1B petitioners can now take advantage of premium processing services.

Please note that H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program are not affected by the suspension.

What is premium processing?

Premium processing service refers to an optional premium processing service offered by USCIS to employers filing Form I-129 (Petition for a Non-immigrant Worker) or Form I-140 (Immigrant Petition for Alien Worker). Premium processing guarantees 15 calendar day processing to petitioners or applicants who make use of the service. Applications that are not processed within 15 calendar days otherwise receive a refund of the $1,225 premium processing fee. To make use of the service, petitioners or applicants must file Form I-907 with their application and include the appropriate fees. The I-907 request for premium processing service can be filed together with an H-1B petition or separately pending a decision.

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With the H-1B season quickly coming to a close, we are happy to announce that 83% of our clients were selected in this year’s master’s cap, while 56.67% of our clients were selected in the “general cap.” These estimates are above the national average. Of the petitions that were selected, the majority were filed with the California Service Center. Selections in this year’s lottery were made up until the very last minute. This fiscal year, USCIS received a total of 199,000 petitions, less than usual, and the computer-generated lottery was conducted on April 11, 2017 a bit later than usual given that the filing period opened on April 3, 2017. As in previous years, USCIS first began the selection process for the advanced degree exemption or “master’s cap,” and then proceeded with the selection process for the “general cap” to fill the 85,000-visa cap. During FY 2017, USCIS received over 236,000 petitions during the filing period which opened on April 1, 2016, and the computer-generated lottery was conducted on April 9, 2016.

USCIS has now completed data entry for all cap-subject petitions selected during fiscal year 2018. This means that USCIS will now begin the process of returning all H-1B cap-subject petitions that were not selected in this year’s lottery, along with their filing fees. While USCIS has indicated that they cannot provide a definite time frame as to when these unselected petitions will be returned, in previous years unselected petitions have traditionally been returned during mid-June to the end of June.

If you have not received a receipt notice in the mail notifying you of your selection, and your checks were not cashed by the Department of Homeland Security, between April 1st and May 3rd., unfortunately it is not likely that you were selected in this year’s lottery. For safe measure, applicants may wish to wait about a week or so to see if any late notices are received.

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Image Courtesy of Gage Skidmore

USCIS has finally announced that the H-1B computer-generated lottery took place on April 11, 2017 to select the necessary petitions to meet the 65,000 visa cap for beneficiaries holding a U.S. bachelor’s degree or its equivalent, as well as the 20,000 visa cap for beneficiaries holding a U.S. master’s degree or higher. The announcement came a bit late this H-1B season, but you can now rest easy knowing that it has taken place.   On April 7th USCIS announced that they had received more than enough H-1B petitions necessary for fiscal year 2018. USCIS disclosed that they received 199,000 H-1B petitions this filing year.

Our office has already received 3 receipt notices for the “master’s” cap or advanced degree exemption, and 2 receipt notices for the “regular” cap as of April 20, 2017. 

USCIS will continue to mail receipt notices for selected petitions throughout the month of April and likely into early May.

If your petitioner has been monitoring their bank account closely and has noticed that the filing fees were charged to the account, that means that the H-1B petition was selected. Even if the filing fees have not yet been charged to your petitioner’s bank account, that does not mean that your H-1B petition was not selected. H-1B applicants must wait patiently to see if they were selected in this year’s lottery.

USCIS will not begin mailing out unselected H-1B petitions until around June through the month of July.

As a reminder, premium processing for H-1B petitions was suspended on March 3rd and will remain suspended for up to six months.

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On Friday April 7, 2017, the United States Citizenship and Immigration Services (USCIS) announced that it has received more than enough H-1B petitions for fiscal year 2018, to meet the general cap, which allocates 65,000 visa applications to H-1B beneficiaries possessing a U.S. bachelor’s degree or its equivalent. In addition, USCIS announced that it has received more than the 20,000 visa applications necessary to count toward the U.S. advanced degree exemption for beneficiaries possessing a U.S. master’s degree or higher. This announcement has traditionally been made on April 7th each fiscal year. USCIS has not yet announced whether the randomized lottery has already occurred to select the necessary petitions to meet the general cap and master’s cap. Last H-1B season, USCIS conducted the randomized computer-generated lottery on April 9th therefore the announcement will be imminent.

How does the lottery work?

USCIS will first begin the selection process for the 20,000 available visas that will count toward the advanced degree exemption or master’s cap. Then, unselected advanced degree petitions that were not selected in the first round, will be placed in the lottery toward the general 65,000 visa cap giving these individuals a second chance of being selected.

Chances of selection

This year our office estimated that individuals who applied for the advanced degree exemption (U.S. master’s or higher) will have roughly a 65-70% chance of selection, while applicants for the general cap will have roughly a 35-40% chance of selection.

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27053193071_ff14b4669a_zOn March 31, 2017, USCIS made legal news by issuing a policy memorandum that undid a memo that USCIS’s Nebraska Service Center issued nearly two decades ago. USCIS issues policy memorandums periodically, but the one that USCIS issued last March was newsworthy because some have claimed that the memo has altered – for the worse—the way USCIS will evaluate H-1B applications (petitions) for foreigners who seek to come to the United States and work as computer programmers.

But readers need not fear too much. The policy memo, when read correctly, is far more modest in its effects than some have feared. To begin with, the memo only affects those who aspire to work in the U.S. as “computer programmers” – not all those who aspire to do something I.T. related. Although lay folks may clump together all I.T. jobs within the phrase “computer programmer,” USCIS uses this phrase very particularly when it reviews H-1B applications. By USCIS’s lights, the phrase does not encompass Programmers/Analysts, Software Consultants, Computer Consultants, and the like.  Thus, whatever the reach of the policy memo (discussed below), it leaves untouched wide regions of the I.T. industry.

So, what exactly does the March 2017 memo do? To understand that, it is helpful to briefly consider the memo that the 2017 one rescinded – a memo issued by the Nebraska Service Center in December 2000. Back in the days when the world worried about the Y2K bug shutting down computers, USCIS struggled to understand whether, as a matter of law, computer programming was special-enough an occupation – in legal parlance, whether computer programming was a “specialty occupation”— such that the U.S. government should grant H-1B visas to foreigners skilled in this field. (A “specialty occupation” is one that requires a complex body of theoretical knowledge that is typically associated with a bachelor’s degree or higher.)   This struggle was reflected in a memo that the Nebraska Service Center issued. In that memo, the Nebraska Service Center asserted that computer programming is generally a “specialty occupation” because the majority of computer programmers employed in the field possessed at least a bachelor’s degree (according to 1998 statistics).  But the 2000 memo failed to “provide the specific specialties the [bachelors] degrees were in . . . . .”

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On March 31, 2017, the United States Citizenship and Immigration Services (USCIS) issued a new policy memorandum providing new guidance relating to the adjudication of H-1B petitions for computer programmers. The new memorandum will supersede and replace the policy memorandum that had been in place since the year 2000, which previously governed adjudication procedures for H-1B computer related occupations.

The new memorandum seeks to update the outdated provisions of the 2000 memorandum because the policies set out in that memorandum no longer reflect the current policies of the agency. The main purpose for rescinding the 2000 memorandum is not to change the H-1B application process for employers who seek to employ foreign workers in computer related occupations, rather the new memorandum clarifies the proper adjudication procedures for computer related occupations at all service centers.

Why the Change?

The Occupational Outlook Handbook is a handbook published by the Department of Labor’s Bureau of Labor Statistics which includes information relating to the training and education required for various employment positions. The OOH is of particular importance for H-1B petitioners and practicing attorneys, because USCIS consults the OOH as a guide to inform their decision regarding the general qualifications necessary for a particular occupation, and whether the occupation is to be considered a “specialty occupation.” The OOH however does not on its own establish whether a position is a “specialty occupation,” rather adjudicating officers focus on the position itself and the job duties and qualifications of the beneficiary, to determine whether the position is to be considered a specialty occupation.

The main problem with the 2000 policy memorandum was that it relied on an outdated OOH description of the position of “computer programmer,” creating inconsistencies that are no longer followed by adjudicating officers today.

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In this series, our office brings you up to speed on all things immigration.

Reminders for H-1B applicants for Fiscal Year 2018

Beginning April 3, 2017 USCIS will begin to accept cap-subject H-1B petitions for fiscal year 2018. USCIS has recently announced that premium processing has been temporarily suspended beginning April 3, for a 6-month period, that means that petitioners CANNOT file Form I-907 request for premium processing while premium processing has been suspended. As a reminder, for the general cap (U.S. bachelor’s degree holders or the foreign equivalent) only 65,000 H-1B visas are available per fiscal year, while 20,000 H-1B visas have been allocated for the advanced degree exemption (U.S. Master’s degree holders or higher level of education). Our office has estimated that this H-1B season, advanced degree holders will have a 65 to 70% chance of being selected in the lottery, while individuals qualifying for the general U.S. bachelor’s cap will have a 35 to 40% chance of selection.

For more information about the H-1B visa please click here.

I-130 Consular Processing

If you have applied for an immigrant visa with the National Visa Center, a process that is also known as consular processing, and you are preparing your civil documents for shipment to the National Visa Center or for your immigrant visa interview, please be aware that the Department of State has recently made changes to the Country Reciprocity tables, requiring new or additional documents for certain foreign nationals depending on their country of nationality. All original civil documents must be presented at the immigrant visa interview by the intended beneficiary.

To view the updates please click here.

To review the complete Visa Reciprocity Table, please click here.

What is happening with Trump’s Muslim Travel Ban and what is a Temporary Restraining Order?

Trump’s revised executive order banning the admission of foreign nationals from 6 Muslim-majority countries (Syria, Somalia, Sudan, Libya, Iran, and Yemen) and the admission of refugees is currently on hold. A federal judge from the state of Hawaii has issued what is known as a TRO or Temporary Restraining Order.

What is a TRO?

A TRO is a provisional form of relief granted by the federal courts that prevents a party from doing a certain thing so that the moving party does not suffer harm. The relief provided by a TRO is immediate, because the order is only granted under emergency circumstances. A TRO goes into effect for 14 days and can be extended for another 14 days (maximum 28 days). A TRO is not permanent.

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