Visa Lawyer Blog

Articles Posted in Highly Skilled Workers

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There can be no doubt that the Trump era has dealt a devastating blow to immigration, but perhaps the most affected individuals have been H-1B visa hopefuls and their employers.

Early on during the President’s administration, the President advocated for and implemented some of the most disastrous immigration policies ever seen—particularly because of the restrictive effect these polices have had in drastically reducing visa approvals for temporary workers.

Across the board, our office witnessed a staggering increase in the issuance of requests for evidence, and a high rate of denials for H-1B visa worker petitions, despite a highly qualified applicant base.

While these petitions were easily approved in past administrations, the reality began to set in that things would be much different under President Trump. Data has shown that from fiscal year 2015 to fiscal year 2019, H-1B denial rates for new H-1B petitions increased drastically from 6 percent to 21 percent., while denial rates for H-1B visa extensions increased to 12 percent in fiscal year 2019.

Where did it all begin?

USCIS began to aggressively limit H-1B visa approvals following the passage of the President’s executive order “Buy American and Hire American” signed on April 18, 2017.

With this order, the President single-handedly targeted one of the most sought-after visa programs in the United States—the H-1B visa program for highly-skilled temporary foreign workers. The order specifically directed the Attorney General and Secretaries of State, Labor, and Homeland Security to suggest reforms to ensure that H-1B visas would only be approved for the most-skilled or highest-paid workers.

While the President’s restrictive policies on immigration gained him a loyal following, they ultimately narrowed the playing field significantly for prospective H-1B workers.

Buy American and Hire American effectively gave the Department of Homeland Security—and by extension the United States Citizenship and Immigration Services—a broad range of power to develop and enforce restrictive policies limiting the issuance of H-1B visas.

Thereafter, USCIS went to work producing rule-making, policy memoranda, and implementing operational changes to carry out the President’s agenda with the goal of drastically limiting approvals for H-1B workers.

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Welcome back to Visalawyerblog! As you all know, USCIS recently announced that it has completed the selection process to meet the 65,000/20,000 annual numerical limitations for H-1B fiscal year 2021.

All accountholders should have been notified of selection via their USCIS online accounts by March 31,2020. We can confirm that our office received all notices of selection before March 31, 2020.

If you were selected, the following status will appear on the petitioner’s USCIS online account:

Selected: Selected to file an FY 2021 H-1B cap-subject petition.

What’s Next?

Now that the selection process has been completed, petitioners who properly registered the beneficiary through the mandatory H-1B electronic registration process and were selected in the lottery are eligible to file a FY 2021 H-1B cap-subject petition with USCIS.

Petitioners who were not selected cannot file a petition with USCIS.

Please note that selection does not mean that an H-1B petition has been approved. The petitioner must still establish eligibility for petition approval at the time of filing and the application must go through adjudication based on existing statutory and regulatory requirements.

When can I file?

H-1B cap-subject petitions for FY 2021, including those petitions eligible for the advanced degree exemption, may now be filed with USCIS if based on a valid selected registration (as of April 1st). 

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A new decision issued by a federal judge in the case Itserve Alliance Inc., et al., v. L. Francis Cissna, will dramatically change the way that the United States Citizenship and Immigration Services (USCIS) adjudicates H-1B petitions for Information Technology companies.

The new ruling invalidates key provisions of the CIS 2010 Guidance Memorandum (also known as the Neufeld Memo) and the CIS 2018 Policy Memorandum (PM-602-0157) for two reasons.

Firstly, the court found that the policies outlined in these memorandums were inconsistent with previous regulations that were lawfully passed by the government through the formal notice-and-comment rule-making process, as required by law.

Secondly, the court found that USCIS violated the law when it abandoned previous regulations and began applying their own policies without first going through the required formal notice-and-rulemaking process. Since these policies were not passed through the formal rule-making process, their application was found to be unlawful and unenforceable.

Background

During the start of the Trump administration, USCIS began adopting a narrow policy designed to limit the number of H-1B petitions that would be approved. Throughout this period, our office saw the highest number of requests for evidence and denial rates ever experienced in over a decade in practice. Other immigration attorneys across the country observed the same trends.

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In this post we bring you the latest immigration related COVID-19 updates. During this difficult time, we would like to extend our heartfelt regards to you and your families. We hope you are staying safe and taking the necessary precautions to prevent the spread of COVID-19. The sooner we abide by government measures, the sooner we can overcome this pandemic as a Nation. Additionally, please remember that although our office is closed to the public, we continue to function behind the scenes to file your petitions on a timely basis. If you have any questions regarding your immigration options, or your currently pending case, we would be glad to assist you by telephone, Zoom, or Skype.

President Extends Federal Social Distancing Guidelines to April 30

This past Sunday, March 29, 2020, the President of the United States extended the Nation’s social distancing guidelines for another 30 days, following warnings from health advisers of the serious consequences that could result if Americans were allowed to return to normal life. Pursuant to this order, social time will continue to be limited only to necessary outings such as grocery shopping, medical appointments, etc. until April 30.

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Great news! Today, March 27, 2020, USCIS announced that it has received enough electronic registrations to reach the FY 2021 H-1B cap—just 7 days after the registration period closed on March 20, 2020.

USCIS randomly selected from among registrations that were properly submitted to meet the 65,000/20,000 annual numerical limitations for the regular cap and advanced degree exemption.

Petitioners who have been selected will be notified of their selection no later than March 31, 2020 (4 days). Only petitioners with selected registrations will be eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

How will I be notified?

Now that the selection process has been completed, USCIS will send electronic notices to all registrants with selected registrations that are eligible to file an H-1B cap-subject petition on behalf of the individual named in the notice within the filing period indicated on the notice.

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It has been nearly two weeks since the President of the United States declared a public health emergency for COVID-19, forcing the American economy to come to a screeching halt. Thereafter, states enacted their own measures requiring non-essential businesses across the country to shutter temporarily until the virus has been contained. Although these measures have been undoubtedly necessary to prevent the rapid spread of the virus, the majority of Americans nationwide have lost their livelihoods overnight.

This past week lawmakers have been busy drawing up legislation that would provide emergency financial assistance for individuals, families, and businesses in the United States.

This afternoon Congress approved the Coronavirus Aid, Relief and Economic Security Act (CARES), and the bill now heads to the President’s desk for signature.

Although this legislation is sweeping in scope, this post will specifically discuss financial relief for individuals and families, and more importantly which individuals will qualify to receive financial assistance.

What does the CARES Act do for individuals and their families?

Under the Act, most single individuals earning less than $75,000 can expect to receive a one-time payment of $1,200. Married couples filing jointly (earning less than $150,000), would each receive a check ($2,400) and families would receive $500 per child. For example, a family of four earning less than $150,000 can expect to receive $3,400.

Rebates would begin to phase out at $75,000 for singles, $112,500 for heads of household, and $150,000 for joint taxpayers at 5 percent per dollar of qualified income, or $50 per $1,000 earned. Rebates phase out completely at $99,000 for single taxpayers with no children and $198,000 for joint taxpayers with no children.

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Welcome back to Visalawyerblog! In this post, we bring you the latest immigration news for the week.

USCIS Temporarily Closing Offices to the Public March 18-April 1 to Reduce Spread of COVID 19 

In response to the widespread COVID 19 pandemic, the United States Citizenship and Immigration Services (USCIS) has announced that effective March 18, 2020 the agency will suspend in-person services at its field offices, asylum offices, and Application Support Centers (ASC) nationwide in an effort to help slow the spread of the Coronavirus.

USCIS plans to suspend in-person services until at least April 1st.

What if I have a scheduled appointment or naturalization ceremony?

USCIS has stated that all applicants and petitioners with scheduled appointments and naturalization ceremonies impacted by this closure will receive notices in the mail.

In addition, USCIS asylum offices will send interview cancellation notices and automatically reschedule asylum interviews. When an interview is rescheduled, asylum applicants will receive a new interview notice with the new time, date and location of the interview.

When USCIS resumes normal operations, USCIS will automatically reschedule ASC appointments impacted by the office closure. Impacted applicants and petitioners will receive a new appointment letter in the mail.

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Great news for FY 2021 H-1B registrants! USCIS has published step-by-step video instructions showing you how you can submit an electronic registration on the USCIS website without the use of an attorney or representative. It is not too late to register. The registration period closes noon ET on March 20, 2020.

USCIS Adds FAQs to Website

USCIS has also included a helpful and detailed FAQ section about the H-1B electronic registration process on its website addressing various topics regarding the H-1B registration process and filing process itself.

We have included these FAQs in this post for your convenience. Questions marked in red are those that we consider to be of most interest to petitioners.

For further information about the H-1B electronic registration process please click here.

Q: What happens if the prospective beneficiary does not have a last name? What do you enter into the system?

  • A: If there is only one name for a beneficiary, it should be entered as the last name. The first and middle name fields will have check boxes that indicate “Beneficiary does not have a first name” or “Beneficiary does not have a middle name.” These boxes should be checked in these instances. Do not enter placeholders, such as “FNU”, “LNU”, “Unknown”, or “No Name Given.

Q: Is there an appeal process for registrations determined to be invalid duplicates?

  • A: Registrations that are determined to be duplicates will be invalid. A registrant who submits duplicate registrations will not be able to appeal the invalidation.

Q: If you are registering for the master’s cap based on the expectation that the beneficiary will earn a qualifying advanced degree, and you are actually selected under the master’s cap, but, the beneficiary does not obtain their qualifying advanced degree, is there a risk that the cap-subject H-1B petition for that beneficiary will be denied?

  • A: If a registration is submitted requesting consideration under the INA 214(g)(5)(C) advanced degree exemption because the beneficiary has earned, or will earn prior to the filing of the petition, a master’s or higher degree from a U.S. institution of higher education, and the registration is selected under the advanced degree exemption, the beneficiary must be eligible for the advanced degree exemption at the time of filing the I-129 petition. If the beneficiary is selected under the advance degree cap and has not earned a qualifying master’s or higher degree from a U.S. institution of higher education at the time the petition is filed, the petition will be denied or rejected.

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H-1B season has officially kicked off!

The new mandatory H-1B electronic registration system for fiscal year 2021 opened yesterday at noon ET on March 1, 2020 and will remain open until noon ET on March 20, 2020.

In order to have a chance of being selected, from now on all prospective petitioners and their authorized representatives seeking to file H-1B cap-subject petitions for FY 2021, including for beneficiaries eligible for the advanced degree exemption, must first register during the registration period (March 1, 2020 to March 20, 2020) and pay the associated $10 registration fee for each beneficiary.

Only petitioners with a selected registration may participate in the H-1B filing process.

Registering is Easy

Petitioners and their authorized representatives must create a myUSCIS online account and submit registrations for each beneficiary via their online account during the registration period.

Per USCIS:

Prospective H-1B cap-subject petitioners or their representatives are required to use a myUSCIS online account to: 1) register each beneficiary electronically for the selection process and 2) pay the associated $10 H-1B registration fee for each registration submitted on behalf of each beneficiary. Prospective petitioners or their representatives will be able to submit registrations for multiple beneficiaries in a single online session. Through the account, they will be able to prepare, edit and store draft registrations prior to final payment and submission of each registration.

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It’s official. Yesterday, the United States Citizenship and Immigration Services (USCIS) published a notice in the Federal Register formally implementing the mandatory registration requirement for H1B petitioners seeking to file a cap-subject petition for Fiscal Year 2021. The notice went into effect on January 9, 2019, the date of publication.

Beginning March 1, 2020, before a petitioner can file an H-1B cap-subject petition, including petitions eligible for the advanced degree exemption, the petitioner must first electronically register with USCIS. Only petitioners with a valid registration selection will be eligible to file an H-1B petition with USCIS.

The initial registration period for FY 2021 will open on March 1, 2020 and is expected to close on March 20, 2020. The actual end date will be provided on the USCIS website.

Who must register?

H-1B cap-subject petitioners, including those eligible for the advanced degree exemption, seeking to file a FY 2021 H-1B cap petition will be required to first register electronically with USCIS and pay the associated $10 H-1B registration fee for each submission

Prospective petitioners or their authorized representatives must electronically submit a separate registration naming each alien for whom they seek to file an H-1B cap-subject petition. Duplicate registrations are prohibited.

What happens after the registration period closes?

Once the registration period closes, USCIS will conduct the initial selection process.

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