Articles Posted in Technology Workers

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UPDATE: Please see our blog post here for the complete details of the newly released order. 

Today, Monday June 22, 2020, President Trump is expected to sign a new executive order that will extend his previous April 22nd order set to expire today, and will extend restrictions to apply to H-1B, H-2B, L-1, and J foreign workers to protect American jobs as the economy recovers from the COVID-19 lockdowns nationwide. The new executive order is expected to pause new H-1B visa petitions for foreign workers, H-2B visas for nonagricultural seasonal workers, certain J work and education exchange visitor visas, and L executive transfer visas for managers of multinational corporations. The President confirmed issuance of the order in a recent interview with Fox News.

The executive order is expected to be in effect until at least the end of the year and will not impact those who have already been issued or approved an H, L, or J visa.

Although the executive order has not yet been released to the public, a senior official from the Trump administration has spoken to the media on condition of anonymity confirming the issuance of the order. The official stated that the administration has justified issuance of the new order as a way to eliminate competition with foreign workers and make jobs available to American workers during this pandemic.

To read the April 22nd proclamation click here.


Are there any exemptions?


Yes. The order will include a number of exemptions for food processing workers seeking H-2B visas, H-2A agricultural workers, health care professionals working to mitigate the effects of COVID-19, J-1 medical physicians, cases that are deemed in the national interest, as well as all other exemptions originally included in the April 22nd Presidential proclamation which are as follows:

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New rumors are yet again circling regarding the possibility of a future executive order banning the entry of certain non-immigrants from the United States. An official speaking on condition of anonymity has fueled these rumors divulging information that the Trump administration is getting ready to issue a new executive order that would temporarily suspend the entry of L-1, H-1B, H-2B, and J-1 non-immigrants for a period lasting several months.

A copy of the executive order has allegedly been leaked to the media; however, our office has not been able to find a draft copy of such an order. It is also important to note that even if a version of the executive order has been leaked, the official version of a future executive order banning non-immigrants might look substantially different.


What is being said about the potential executive order?


The order is rumored to suspend the entry of L-1, H-1B, H-2B, and J-1 non-immigrants for a temporary period lasting several months.

Like previous executive orders suspending immigrant and non-immigrant entry, the order will contain numerous exceptions, although these exceptions have not yet been made clear. We believe exceptions will likely apply to essential workers such as health professionals, those working to mitigate the effects of COVID-19, and essential workers in food-related industries.

As it relates to J-1 visas, it is rumored that only summer workers, camp counselors, trainees, and interns will be impacted, not medical physicians.

TAKEAWAY: If you have a valid L-1, H-1B, H-2B, or J-1 non-immigrant visa and you are abroad, you should consider returning to the United States as soon as possible.


Who will the order likely impact?


The order is rumored to impact only those in L, H, and J non-immigrant status outside the United States, however, the Trump administration is considering adding regulatory changes to the order that would impact OPT students and new H-1B applicants in the United States. This includes provisions that would end the STEM OPT program, and provisions tightening H-1B visa requirements to narrow the definition of “specialty occupation,” require higher wages, and increase H-1B filing fees.

TAKEAWAY: STEM OPT applications and extensions should be submitted as early as possible to avoid a negative impact.

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A brand-new bill called the H-1B and L-1 Visa Reform Act of 2020 (S. 3770) sponsored by Republican Senator Chuck Grassley has recently surfaced. As you might have already guessed, the bill seeks to make changes to the current H-1B and L visa programs to reduce fraud and abuse within the H-1B and L visa programs, provide protections for American workers, and enforce stricter requirements for the recruitment of foreign workers. The H-1B visa program is aggressively targeted in this new piece of legislation.


Proposed Changes to the H-1B visa program


First, as it relates to the H-1B visa worker program, the bill proposes changes to existing wage requirements.

The law would require employers to pay the highest wage from three categories:

1) the locally determined prevailing wage level for the occupational classification in the area of employment

2) the median average wage for all workers in the occupational classification in the area of employment; or

3) the median wage for skill level 2 in the occupational classification found in the most recent OES survey.

Second, the bill would make changes to current law and require U.S. employers seeking to hire H-1B workers to publish job postings on a website established by the Department of Labor. After filing the labor condition application, the employer would be required to post the job on the website for at least 30 calendar days. The job posting would have to include a detailed description of the position, including the wages and other terms and conditions of employment, minimum education, training, experience, and other requirements for the position, as well as the process for applying for the position.

Third, all H-1B employers would be required to prove that they have tried to recruit American workers for jobs offered to H-1B workers. Under current law, only H-1B dependent employers (those with more than 50 full time employees of which at least 15% are H-1B employees) are required to recruit American workers for H-1B positions. This would be a drastic change in the law creating additional burdens for U.S. employers seeking to hire foreign workers with specialized skills.

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On May 7th just days after the President signed his controversial April 22nd executive order limiting the immigration of certain aliens to the United States for 60 days, Republican senators rallied together to urge the President to pass more immigration restrictions—this time targeting nonimmigrant foreign workers.

Republican Senators Tom Cotton of Arkansas, Ted Cruz of Texas, Chuck Grassley of Iowa, and Josh Hawley of Missouri fired off an impassioned plea to the President asking him to suspend all new guest worker visas for a period of 60 days, and certain categories of new guest worker visas for at least the next year until unemployment levels have returned to normal.

In their letter, the Senators justified their request stating that, “the United States admits more than one million nonimmigrant guest workers every year, and there is no reason to admit most such workers when our unemployment is so high.” The letter continued “given the extreme lack of available jobs for American job-seekers as portions of our economic begin to reopen, it defies common sense to admit additional foreign guest workers to compete for such limited employment.”

The Senators praised the President for passing the April 22nd proclamation but said that more needs to be done because guest worker programs “remain a serious threat to the U.S. labor market’s recovery.”

The Senators said that exceptions to the 60-day suspension should be rare and limited to time-sensitive industries such as agriculture and issued only on a case-by-case basis when the employer can demonstrate that they have been unable to find Americans to take the jobs.

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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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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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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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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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Today, USCIS will begin accepting H-1B petitions subject to the FY 2020 cap. Any FY 2020 cap-subject H-1B petitions filed before April 1st will be rejected.

Beginning today, 65,000 H-1B visas will be available for the regular cap, and 20,000 H-1B visas for advanced degree holders.

Selection

Important changes will be implemented for the H-1B cap selection process.

In January, the Department of Homeland Security announced a final rule amending regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption.

The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, which will be in effect for the FY 2020 cap season.

USCIS will first select H-1B petitions submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions, a number projected to reach the advanced degree exemption.

Premium Processing Available for COS Cap Subject H-1B Petitions Only

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.

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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