Articles Posted in Highly Skilled Workers

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Fresh off the press! In this blog post we will discuss a new proposed rule that is set to be published in the Federal Register on September 4, 2019. We have reviewed an advance copy of this proposed rule and will tell you everything you need to know about the new rule.

At a Glance

The proposed rule will require petitioners filing H-1B cap-subject petitions to pay a $10 registration fee for each petition they submit to USCIS for the H-1B cap selection process beginning with the H-1B fiscal year 2021 cap season.

Overview

As you may recall, on January 31, 2019, DHS published a final rule requiring petitioners seeking to file H-1B cap-subject petitions (including those eligible for the advanced degree exemption) to first electronically register with USCIS during the designated registration period (“H-1B registration final rule”).

USCIS stated that the new H-1B registration system would be implemented beginning with H-1B fiscal year 2021 to ensure the registration system and process work correctly.

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In this post we bring you the latest immigration news.

Final Rule Inadmissibility on Public Charge Grounds

The Department of Homeland Security has posted the official version of final rule “Inadmissibility on Public Charge Grounds,” in the Federal Register.

The Final Rule will become effective at 12:00 a.m. EST on October 15, 2019.

Who does the rule apply to?

The rule will be applied to applications and petitions postmarked (or electronically submitted) on or after October 15, 2019.

The rule will not apply to applications and petitions pending with USCIS prior to October 15, 2019.

To read the official version of the rule please click here.

USCIS Completes Return of Unselected H-1B Petitions

As of August 15, 2019, USCIS has returned all FY2020 H-1B cap-subject petitions that were not selected in the lottery. Unselected petitions contain a rejection notice explaining that the petition was not selected in the lottery.

If you submitted a FY 2020 H-1B cap-subject petition that was delivered to USCIS between April 1 and April 5, 2019, and you do not receive a receipt notice or returned petition by August 29, 2019, contact USCIS for assistance.

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We are happy to report that on July 10, 2019 the House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044), a bill that if enacted, would amend the Immigration and Nationality Act to eliminate the per-country numerical limitation for employment-based immigrants, and increase the per-country numerical limitation for family-sponsored immigrants.

What is H.R. 1044?

H.R. 1044 is a piece of legislation that was first introduced before the House of Representatives on February 7, 2019 by Representative Zoe Lofgren.

Employment-Based Sponsorship

The bill seeks to drastically change the way that our employment-based green card system works by eliminating the “per country cap” that limits the number of green cards that may be issued to applicants per fiscal year depending on their country of origin also known as country of chargeability.

Currently, employment-based workers fall into one of five “preference categories” including EB-1 Priority Workers, EB-2 Professionals Holding Advanced Degrees/Persons of Exceptional Ability, EB-3 Skilled Workers, Professionals, EB-4 Special Immigrants, and EB-5 Investors. Each of these categories is subject to Congressional numerical limitations, as well as per-country limitations.

H.R. 1044 proposes to remove the per-country limitations to enable applicants to obtain employment visas based on merit, and not based on country of origin. The bill would also eliminate the 7% cap for employment-based visas and remove an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% would be allotted to immigrants from any single country.

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The H-1B season for Fiscal Year 2020 has officially come to a close.

The United States Citizenship and Immigration Services (USCIS) has begun the process of returning all H-1B cap-subject petitions that were not selected in the H-1B lottery for fiscal year 2020.

As you may recall, the H-1B lottery for FY 2020 took place on April 10, 2019. Petitioners who were selected in the lottery were mailed receipt notices of selection from USCIS during the month of April. If you or your petitioner did not receive such a notice, then your petition was not selected in the lottery and will be returned.

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USCIS announced today May 17, 2019, that the agency has completed data entry for all H-1B petitions selected for fiscal year 2020, including petitions filed under the U.S. advanced degree exemption.

USCIS will now begin the long process of returning all H-1B cap-subject petitions that were not selected in the random computer-generated lottery that took place on April 10, 2019. USCIS will provide an announcement once it has completed the return of unselected H-1B petitions.

Petitioners who have not had the H-1B filing fees cashed, can expect to receive the return of their H-1B petition.

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Great news! Our office has begun to receive our first I-797 receipt notices in the mail for petitions that were filed with premium processing in the lottery. So far, our office has received four such receipt notices for individuals who filed under the advanced degree exemption. All four of these notices came from the California Service Center.

Over the next few weeks we expect to continue to receive receipt notices for individuals who filed under the regular bachelor’s cap. If you have not yet received a receipt notice, do not be discouraged, because it is still too early to tell if you have been selected in the lottery.

As we previously suggested, Petitioners should continue to monitor their bank accounts closely. If the filing fees are charged to the account, then that petition has been selected in the lottery.

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On April 5, 2019, USCIS announced that it received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap for fiscal year 2020.

As expected, the Regular cap (Bachelor’s cap) was reached within the first five business days of the FY 2020 application cycle.

USCIS still has not announced whether it has received a sufficient number of petitions to meet the 20,000 H-1B visa cap for the U.S. advanced degree exemption (Master’s cap).

USCIS has also not yet announced whether the H-1B lottery has been conducted. Last year, USCIS made the announcement on April 12th.

During the next few weeks Petitioners should keep a close eye on their bank accounts to see whether the H-1B filing fees have been charged to their accounts.

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It is an exciting and busy time at the Sapochnick Law Firm! Our Firm is gearing up for the long awaited H-1B season to kick off on Monday, April 1, 2019.

To help you put your best foot forward, we are sharing the ultimate running checklist for H-1B- cap-subject petitions. Please remember that employers cannot file an H-1B petition for an employee more than 6 months before the employee’s intended start date of employment. If selected in the lottery, H-1B visa workers can begin employment on October 1st.

How long is the H-1B visa good for?

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The start of the FY 2020 H-1B cap season begins on April 1, 2019. This year, USCIS will offer premium processing services in a two-phased approach to avoid temporary suspension of the service.

Change of Status H-1B Cap Petitions

Starting April 1, FY 2020 cap-subject H-1B petitioners requesting a change of status on their Form I-129, Petition for a Nonimmigrant Worker, may request premium processing by concurrently filing Form I-907, Request for Premium Processing Service.

However, to prioritize data entry for cap-subject H-1B petitions, USCIS will not begin premium processing for these petitions immediately.

USCIS will begin premium processing for these petitions no later than May 20, 2019 and will notify the public before premium processing begins for these petitions.

If a petitioner does not file Form I-907 concurrently with an FY 2020 H-1B cap-subject petition requesting a change of status, the petitioner must wait until premium processing begins to submit Form I-907.

All Other FY 2020 Cap-Subject Petitions

Premium processing services for all other FY 2020 cap-subject H-1B petitions will not begin until at least June 19, 2019. Cap-subject petitioners who are not requesting a change of status may not submit their premium processing request concurrently with their H-1B petition. These petitioners will be eligible to upgrade to premium processing once premium processing begins for this group. USCIS will notify the public with a confirmed date for premium processing for cap-subject petitioners not requesting a change of status. Continue reading

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The Trump administration is making another bold move, this time the target is H-4 dependent spouses of H-1B nonimmigrant workers seeking permanent residence.

The Department of Homeland Security has published a notice of proposing rule-making (NRPM) to rescind an Obama era rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B workers seeking permanent residence.

We are awaiting publication of the proposed rule in the federal register. At this time, the regulation has preliminarily appeared on the government website reginfo.gov.