USCIS announced today that it has completed the H-1B Cap random selection processes for both the H-1B Master's Cap and the general H-1B Cap. USCIS first conducted a random selection process to determine which of the eligible Master's Cap cases would be processed pursuant to the 20,000 exemption for H-1B petitions filed on behalf of beneficiaries who possess a U.S. Master's degree or higher. Those not selected in the Master's Cap lottery were then entered into the pool with the general H-1B Cap petitions, and a second random selection process was conducted to select those cases that would be processed under the general H-1B Cap.
USCIS has indicated that H-1B petitions selected for full processing should receive a formal receipt notice no later than June 2, 2008. USCIS also indicated that the total processing time for selected petitions should be approximately 8-10 weeks, although H-1B petitions filed under the premium processing program will be adjudicated within a 15-day period beginning today (April 14). H-1B petitions not selected by USCIS for processing will be returned to the employer and/or attorney with the filing fees.
Finally, USCIS has stated that it has "wait-listed" an unspecified number of H-1B petitions that could be granted an H-1B Cap number if a previously-selected H-1B petition is later denied, withdrawn, or otherwise found to be ineligible. USCIS indicated that it would send a letter to "wait-listed" petitioners to inform them of their "wait-list" status, and that they expected they would either issue a receipt notice for the petition, or reject it and return of filing fees, within 6-8 weeks.
Monday, April 14, 2008
Thursday, April 10, 2008
H-1B Cap Reached
USCIS has announced that they received enough H-1B petitions during the April 1 to April 7 filing period to exhaust both the general H-1B Cap and the special 20,000 Masters Cap for H-1B petitions filed on behalf of candidates with a U.S. Masters degree or higher. It was widely expected this would the case for the general H-1B Cap, while it was not entirely clear if the Masters Cap would also be met during the initial filing period. This announcement means that any new H-1B petitions filed after April 7 will not be accepted.
To view the USCIS announcment regarding the H-1B Cap being reached, click here.
USCIS subsequently announced that during the initial filing period it received an estimated 163,000 H-1B petitions, including more than 31,200 for the Masters Cap. If this figure is accurate, it is significantly lower than most projections, some of which predicted the total number of filings could reach 200,000 to 300,000, and the selection odds should only be slightly lower than last year when about 120,000 petitions were received.
USCIS has stated that it expects to conduct the random lottery process next week to determine which H-1B petitions will be processed. USCIS will first conduct a random lottery to determine which of the 31,200 Masters Cap petitions will be selected for processing under the 20,000 Masters Cap. The 11,200 H-1B petitions not selected will then be entered into a second random lottery with the approximately 131,800 remaining general H-1B Cap petitions to determine which 56,200 will be processed under the general H-1B Cap.
To view the USCIS announcment regarding the number of H-1B Cap petitions received, click here.
Once USCIS completes the random lotteries, it will issue receipt notices for those petitions selected. The petitions not selected will be rejected and returned with the filing fees.
As Ellis Porter learns of any new H-1B Cap information, we will pass it along to you.
To view the USCIS announcment regarding the H-1B Cap being reached, click here.
USCIS subsequently announced that during the initial filing period it received an estimated 163,000 H-1B petitions, including more than 31,200 for the Masters Cap. If this figure is accurate, it is significantly lower than most projections, some of which predicted the total number of filings could reach 200,000 to 300,000, and the selection odds should only be slightly lower than last year when about 120,000 petitions were received.
USCIS has stated that it expects to conduct the random lottery process next week to determine which H-1B petitions will be processed. USCIS will first conduct a random lottery to determine which of the 31,200 Masters Cap petitions will be selected for processing under the 20,000 Masters Cap. The 11,200 H-1B petitions not selected will then be entered into a second random lottery with the approximately 131,800 remaining general H-1B Cap petitions to determine which 56,200 will be processed under the general H-1B Cap.
To view the USCIS announcment regarding the number of H-1B Cap petitions received, click here.
Once USCIS completes the random lotteries, it will issue receipt notices for those petitions selected. The petitions not selected will be rejected and returned with the filing fees.
As Ellis Porter learns of any new H-1B Cap information, we will pass it along to you.
Thursday, April 3, 2008
OPT Extension Regulation Proposed
Immigration and Customs Enforcement ("ICE") has started the process to implement a new regulation that would benefit F-1 students. Upon graduation, most F-1 students are eligible for 12 months of employment authorization called Optional Practical Training (OPT). The idea behind OPT is that it provides the F-1 student with the opportunity to apply knowledge gained from their program of study to a more practical work experience with an employer.
The proposed new regulation, entitled "Extending Period for Optional Practical Training for 17 Months for Qualified F-1 Students," would extend an F-1 student's period of OPT eligibility from 12 to 29 months. This change would benefit F-1 students in two important ways:
(1) it would eliminate the "cap gap" problem for students who were ineligible to request an in-country change of status along with the H-1B cap petition because their OPT expired in the summer months. To be eligible for an in-country change of status, F-1 students have to show that they have OPT valid from the time their H-1B Cap petition is filed on April 1 until no more than 60 days before October 1 (F-1 students remain in status for 60 days following the expiration of their OPT).
(2) it would also allow F-1 students a second chance to enter an H-1B Cap lottery in a subsequent year if their H-1B petition was not selected the first time.
It has been suggested that if passed, this regulation would only apply to F-1 students studying in particular fields. However, the exact text of the regulation is not yet known.
Please note this is a proposed regulation. It could take up to 90 days for the regulation process to be finalized, and this regulation could ultimately be approved, revised, or rejected. We will keep you posted.
The proposed new regulation, entitled "Extending Period for Optional Practical Training for 17 Months for Qualified F-1 Students," would extend an F-1 student's period of OPT eligibility from 12 to 29 months. This change would benefit F-1 students in two important ways:
(1) it would eliminate the "cap gap" problem for students who were ineligible to request an in-country change of status along with the H-1B cap petition because their OPT expired in the summer months. To be eligible for an in-country change of status, F-1 students have to show that they have OPT valid from the time their H-1B Cap petition is filed on April 1 until no more than 60 days before October 1 (F-1 students remain in status for 60 days following the expiration of their OPT).
(2) it would also allow F-1 students a second chance to enter an H-1B Cap lottery in a subsequent year if their H-1B petition was not selected the first time.
It has been suggested that if passed, this regulation would only apply to F-1 students studying in particular fields. However, the exact text of the regulation is not yet known.
Please note this is a proposed regulation. It could take up to 90 days for the regulation process to be finalized, and this regulation could ultimately be approved, revised, or rejected. We will keep you posted.
Tuesday, April 1, 2008
April 1 is Here
Well, the date we've been pointing to for a long time, April 1, 2008, is finally here. Tens of thousands of H-1B Cap petitions from around the country will arrive at USCIS' doorstep today and throughout the next several days. With H-1B petitions arriving by the truckload, I'm sure it's quite a sight to behold. Just remember, pursuant to the USCIS' latest guidance on mailing procedures, don't attempt to hand-deliver your H-1B petition or send it via taxi cab (I'm not making this up, apparently this has been attempted!).
Keep in mind that under the new H-1B Cap regulations, USCIS will continue to accept H-1B Cap cases for the first five business days of April, meaning that H-1B cap cases received through Monday, April 7 will all be treated equally for H-1B Cap counting purposes.
With respect to the selection lottery logistics, it could take up to several weeks before the results are known and receipt notices are issued to those petitions selected. If last year is any guide, other unexpected processing issues will surely arise.
Finally, don't forget that although USCIS will accept requests for premium processing for H-1B Cap cases, the 15-day premium processing timeline will be suspended until after USCIS completes its initial case intake and performs the cap selection lottery. USCIS is expected to restart the premium processing clock once the lottery process has been completed.
As we have been doing for the past several weeks, we will be sure to keep you updated on all the latest H-1B Cap news as it happens.
Keep in mind that under the new H-1B Cap regulations, USCIS will continue to accept H-1B Cap cases for the first five business days of April, meaning that H-1B cap cases received through Monday, April 7 will all be treated equally for H-1B Cap counting purposes.
With respect to the selection lottery logistics, it could take up to several weeks before the results are known and receipt notices are issued to those petitions selected. If last year is any guide, other unexpected processing issues will surely arise.
Finally, don't forget that although USCIS will accept requests for premium processing for H-1B Cap cases, the 15-day premium processing timeline will be suspended until after USCIS completes its initial case intake and performs the cap selection lottery. USCIS is expected to restart the premium processing clock once the lottery process has been completed.
As we have been doing for the past several weeks, we will be sure to keep you updated on all the latest H-1B Cap news as it happens.
Wednesday, March 26, 2008
More H-1B Pressure in D.C.
The pressure on Congress to fix the H-1B fiasco continues to mount, as indicated in this editorial from the Washington Post.
H-1B visas are reserved for the world's best and brightest, and barring their entry is economic self-sabotage. The cap keeps out doctors, engineers and other specialists -- people who save lives and often create jobs for others in America. One need only look at the national origins of founders of companies such as Google and Sun Microsystems to realize that foreign talent has helped keep the U.S. economy on the cutting edge.Congress is clearly getting pressured from all sides. Let's hope it works.
Tuesday, March 25, 2008
Analysis of New H-1B Cap Regulation
The new H-1B Cap regulation is fairly straightforward, as summarized in our earlier post. That said, after further analysis of the new H-1B Cap regulation, here are some additional thoughts:
Multiple Filings
USCIS indicated they found approximately 500 instances of multiple filings last year. USCIS will now reject all duplicative petitions from employers who file more than one application for the same individual, even for different positions. The employer's filing fees will not be returned. If the duplicative filings are not discovered by USCIS until after the random selection process, or even after approval, USCIS can reject/revoke all duplicative petitions later.
The multiple filing prohibition does not automatically prevent two related employers (for example, two subsidiaries of the same parent company) from filing separate H-1B petitions for the same employee. However, USCIS will likely issue a Request for Evidence (RFE) in this situation, and the burden is on the employer to show that there was a legitimate business need for doing so.
The new H-1B Cap regulations does not, however, prevent two unrelated employers from filing separate H-1B Cap petitions for the same individual.
H-1B Cap Random Selection Period
Last year, all cases received during the first two business days of the H-1B Cap filing period were eligible for the random selection process. USCIS has now increased this period to the first five business days. So assuming USCIS receives enough H-1B petitions to meet the cap within the first five days (which they most likely will), all H-1B petitions received during the first five business days will all be entered into the random selection process. Accordingly, an H-1B petition received on April 7 (the fifth business day) will be treated exactly the same as an H-1B petition received on April 1.
Master's Cap Random Selection Process
If USCIS receives more than 20,000 Master's Cap exemption cases within the first five business days, it will conduct a random selection selection process among all Master's Cap cases to determine which 20,000 will qualify for the exemption. Those Master's Cap cases not selected will then be entered into the general H-1B Cap random selection process, and thus have a chance to receive one of the general H-1B Cap numbers.
Multiple Filings
USCIS indicated they found approximately 500 instances of multiple filings last year. USCIS will now reject all duplicative petitions from employers who file more than one application for the same individual, even for different positions. The employer's filing fees will not be returned. If the duplicative filings are not discovered by USCIS until after the random selection process, or even after approval, USCIS can reject/revoke all duplicative petitions later.
The multiple filing prohibition does not automatically prevent two related employers (for example, two subsidiaries of the same parent company) from filing separate H-1B petitions for the same employee. However, USCIS will likely issue a Request for Evidence (RFE) in this situation, and the burden is on the employer to show that there was a legitimate business need for doing so.
The new H-1B Cap regulations does not, however, prevent two unrelated employers from filing separate H-1B Cap petitions for the same individual.
H-1B Cap Random Selection Period
Last year, all cases received during the first two business days of the H-1B Cap filing period were eligible for the random selection process. USCIS has now increased this period to the first five business days. So assuming USCIS receives enough H-1B petitions to meet the cap within the first five days (which they most likely will), all H-1B petitions received during the first five business days will all be entered into the random selection process. Accordingly, an H-1B petition received on April 7 (the fifth business day) will be treated exactly the same as an H-1B petition received on April 1.
Master's Cap Random Selection Process
If USCIS receives more than 20,000 Master's Cap exemption cases within the first five business days, it will conduct a random selection selection process among all Master's Cap cases to determine which 20,000 will qualify for the exemption. Those Master's Cap cases not selected will then be entered into the general H-1B Cap random selection process, and thus have a chance to receive one of the general H-1B Cap numbers.
Wednesday, March 19, 2008
USCIS Releases Interim Rule on H-1Bs
USCIS has finally released the anticipated regulations dealing with multiple H-1B Cap filings and other H-1B Cap procedural issues.
Among the highlights:
Click here to view the USCIS announcement
Click here to view the USCIS Fact Sheet: Changes to the FY2009 H-1B Program
Click here to view USCIS Questions and Answers: USCIS Announces Interim Rule on H-1B Visas
Click here to view the full text of the interim final rule.
Ellis Porter will provide further analysis of the new interim H-1B rule after we have a chance to review it in more detail.
Among the highlights:
- USCIS will deny or revoke multiple petitions filed by an employer for the same H-1B worker, and will not refund the filing fees submitted with multiple or duplicative petitions.
- USCIS will deny petitions that incorrectly claim an exemption from any H-1B numerical limits, and filing fees will not be returned.
- In years when USCIS implements the random selection process for petitions, USCIS will include petitions in the random selection process that are filed during the first five business days available for filing H-1B petitions for a given fiscal year (used to be just the first two such days)
- If more than 20,000 Master's Cap petitions are received within the first five days, USCIS will conduct a random lottery among the Master's Cap petitions and select those that will be accepted under the Master's Cap. Those Master's Cap petitions not selected will entered into the general H-1B Cap random lottery, which would be performed subsequently.
Click here to view the USCIS announcement
Click here to view the USCIS Fact Sheet: Changes to the FY2009 H-1B Program
Click here to view USCIS Questions and Answers: USCIS Announces Interim Rule on H-1B Visas
Click here to view the full text of the interim final rule.
Ellis Porter will provide further analysis of the new interim H-1B rule after we have a chance to review it in more detail.
H-1B Cap Logistics Updates: Deliveries and Receipt Notices
Delivery of H-1B petitions on April 1
USCIS has confirmed it has already had discussions with the U.S. Postal Service and major courier firms (FedEx, UPS, DHL) and advised them to expect an extremely large volume of deliveries on April 1. USPS and the courier firms will be on special alert from April 1-7.
H-1B Cap Receipt Notices
USCIS is stating that this year, receipt notices will be issued only for those cases that receive an H-1B cap number. Cases not selected will be rejected without a receipt notice. Last year, many cases initially received receipt notices, only to be rejected later, which lead to a great deal of confusion about the significance of receiving a receipt notice. Based on these statements from USCIS, if a receipt notice is issued for an H-1B Cap case this year, that should be solid evidence that the case has been accepted under the H-1B Cap.
USCIS has confirmed it has already had discussions with the U.S. Postal Service and major courier firms (FedEx, UPS, DHL) and advised them to expect an extremely large volume of deliveries on April 1. USPS and the courier firms will be on special alert from April 1-7.
H-1B Cap Receipt Notices
USCIS is stating that this year, receipt notices will be issued only for those cases that receive an H-1B cap number. Cases not selected will be rejected without a receipt notice. Last year, many cases initially received receipt notices, only to be rejected later, which lead to a great deal of confusion about the significance of receiving a receipt notice. Based on these statements from USCIS, if a receipt notice is issued for an H-1B Cap case this year, that should be solid evidence that the case has been accepted under the H-1B Cap.
Monday, March 17, 2008
H-1B Cap Multiple Filing Regulation Cleared for Publication
We have been informed by sources within the American Immigration Lawyers Association (AILA) that the Office of Management and Budget (OMB) has cleared for publication an interim regulation titled "Petitions Filed on Behalf of H-1B Temporary Workers Subject to the Annual Numerical Limitation." It is AILA's understanding that this rule relates to the filing of duplicate petitions in the upcoming H-1B Cap "lottery."
Generally speaking, once a regulation is cleared by OMB, it goes back to USCIS for final signature, and then is forwarded to the Federal Register for publication. Typically, this process can take a few days, a few weeks, or sometimes longer. However, due to the looming April 1 filing deadline, it is expected this regulation will be published in the very near future.
Generally speaking, once a regulation is cleared by OMB, it goes back to USCIS for final signature, and then is forwarded to the Federal Register for publication. Typically, this process can take a few days, a few weeks, or sometimes longer. However, due to the looming April 1 filing deadline, it is expected this regulation will be published in the very near future.
New Legislation Introduced to Raise H-1B Cap
On the heels of Bill Gates' testimony before Congress, two new pieces of legislation have been introduced in the U.S. House of Representatives that seek to raise the H-1B Cap:
The Innovation Employment Act
Introduced by Rep. Gabrielle Giffords (D-Arizona), the Innovation Employment Act would increase the H-1B cap to 130,000 a year, and create an unlimited cap exemption for H-1B petitions filed by foreign graduate students attending U.S. colleges and studying science, technology and related fields. The bill would also increase penalties for H-1B fraud, prohibit companies from hiring H-1B workers for third-party placements, and prohibit companies with over 50 employees from hiring more H-1Bs if more than half of their staff are H-1B workers.
The SUSTAIN Act
Introduced by House Judiciary Committee ranking member Lamar Smith (R-Texas), the Strengthening United States Technology And Innovation Now (or SUSTAIN) Act would raise the H-1B cap to 195,000 in 2008 and 2009.
While both pieces of legislation are encouraging, their chances of passage are unclear at the moment. Also, it does not appear any action on H-1B Cap relief would be taken before the April 1 filing deadline. Congress just began a two-week break, and is not scheduled to return to session until March 31.
The Innovation Employment Act
Introduced by Rep. Gabrielle Giffords (D-Arizona), the Innovation Employment Act would increase the H-1B cap to 130,000 a year, and create an unlimited cap exemption for H-1B petitions filed by foreign graduate students attending U.S. colleges and studying science, technology and related fields. The bill would also increase penalties for H-1B fraud, prohibit companies from hiring H-1B workers for third-party placements, and prohibit companies with over 50 employees from hiring more H-1Bs if more than half of their staff are H-1B workers.
The SUSTAIN Act
Introduced by House Judiciary Committee ranking member Lamar Smith (R-Texas), the Strengthening United States Technology And Innovation Now (or SUSTAIN) Act would raise the H-1B cap to 195,000 in 2008 and 2009.
While both pieces of legislation are encouraging, their chances of passage are unclear at the moment. Also, it does not appear any action on H-1B Cap relief would be taken before the April 1 filing deadline. Congress just began a two-week break, and is not scheduled to return to session until March 31.
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