Initial H-1B registration period for the fiscal year 2024 H-1B cap will open at noon Eastern on March 1 and run through noon Eastern on March 17, 2023. During this period, prospective petitioners and representatives will be able to complete and submit their registrations using our online H-1B registration system.

For more on the process refer here

Now is the time for employers to prepare for a successful 2020 H-1B filing season. You’re probably wondering how best to go about this, given the complexities that arose relative to specialty occupations, degrees and wage issues last year. Please note that USCIS has complete discretion whether to deny a case outright or issue a Request for Evidence (RFE). We cannot stress strongly enough the importance of planning and developing strong documentation in support of your case. In so doing, we recommend that you carefully consider and document the below points, as follows:

• If employee has a US master’s degree from a public or non-profit nationally accredited university, apply under the Master’s cap. You can do so whether or not the offered position requires a master’s or bachelor’s degree. The degree, transcript and evidence that the University is public, non-profit and accredited must now be submitted to the Department of Labor with the Labor Condition Application
• It is critical to show the nexus between the offered position’s job duties and the degree requirement
• Select the O*NET code and OFLC Wage level carefully so that the actual wage is reflective of a specialty occupation requiring a degreed professional. Be cautious about Level 1 entry-level wages. We advise paying a higher wage, or be prepared to explain why the position is both entry level and qualifies as a specialty occupation. You may wish to obtain an expert opinion for the latter
• Consider whether the prospective employee will consular process outside the US or do they qualify for a change of status? It’s best to consular processing to preserve OPT if valid beyond October 1st, and to file a change of status case if OPT expires prior to October 1st to protect work authorization under the “cap gap” policy (travel should be avoided in this scenario during case processing)
• To establish that a job qualifies as a specialty occupation under USCIS regulations, one or more of the following criteria must be met with supporting documentation: (1) A bachelor’s or higher degree or its equivalent that is normally the minimum entry requirement for the position; the required degree must be related to the position to be filled.; or (2) The degree requirement is common to the industry, or in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree; or (3) The employer normally requires a degree or its equivalent for the position; or (4) The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

We are uncertain at this time if USCIS will implement a designated H-1B Cap Pre-Registration lottery process for employers in time for this filing season. USCIS stated that this would reverse the order by which the agency selects H-1B petitions under the cap and the advanced degree exemption with the end goal being to increase the number of beneficiaries with master’s or higher degrees from US universities. We will continue to provide updates on this as more information is released.

We would suggest that another strategy for securing the talent that you need in your organization is to consider processing a PERM Labor Certification case with the Department of Labor that is not subject to lottery selection. This can be done for a prospective employee inside or outside the USA or for your F-1 OPT employee as a backup to your H-1B filing, creating a direct path to permanent residency.

Our office is available to assist you with your case filing strategy and case submissions. We are already in planning mode. We can be contacted at info@immigrationcompliancegroup.com

…Which came as a complete surprise to the business community, particularly at a time when his administration has done nothing but attack legal immigration, making the H-1B application process nearly unbearable for employers since the release of his “Buy American – Hire American” Executive Order. So, what could Trump do if he was ‘really’ interested in high skilled immigration?

The long-awaited final rule to modernize and improve several aspects of employment-based nonimmigrant and immigrant visa programs, in order to retain EB-1, EB-2 and EB-3 immigrant workers and high-skilled nonimmigrant workers, is moving forward and has made it through the OMB review process.  It was published in the Federal Register on November 18, 2016 and will be effective in 60 days.   USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017, just before President Obama leaves office.

Among other things, DHS is amending its regulations to:

• Clarifies and improves longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.

• Better enables U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.   This means that you can use the previous employer’s I-140 petition to extend your H-1B with a new employer even if it is withdrawn (as long as it was withdrawn more than 180 days after approval), or in the event of the termination of the employer’s business.  So, there is no I-140 portability; you will still need a new labor certification and I-140 petition to file your adjustment of status application.

• The final rule provides two grace periods of up to 10 days, consistent with those already available to individuals in 13 some nonimmigrant classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications. The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, allowing nonimmigrants in the above classifications a reasonable amount of time to enter the US and prepare to begin employment. The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time to depart the US or take other actions to extend, change, or maintain lawful status.

• Establishes a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period provided their authorized stay is valid for at least 60 days after such cessation. If not, the grace period will end on the date the authorized date is set to expire. This will obviously enable own to more readily pursue new employment and an extension of their nonimmigrant status.

• The Final rule allows allows certain high-skilled individuals in the United States  to apply for work authorization, given:

1. They are the principal beneficiaries of an approved Form I-140 petition,
2. An immigrant visa is not authorized for issuance for their priority date, and
3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion. Such employment authorization may only be renewed in limited circumstances and only in one year increments.

• Automatically extends the employment authorization in the same category and validity of Employment Authorization Documents for up to 180 days from the date of the prior EAD’s expiry (EADs or Form I-766’s) or until djudication of the EAD nrenewal application, for certain individuals who apply on time to renew their EADs.  The Form I-9 rule is also updated to permit an I-797 receipt notice to be accepted as a permissible I-9 document, in conjunction with the expired EAD, to re-verify the foreign national’s work authorization. This additional 180-day period will not apply to those categories that first require the approval of an underlying application before the EAD renewal can be adjudicated.

• Eliminates the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

• Clarifies various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap program.

For more information, please refer here for the Final Rule.  If you have any questions, please contact our office.  We will continue to keep you posted on the implementation of these new policies.

By:  Allison McDonnell, ICG Content Coordinator

President-elect, Donald Trump, will take office as the United State’s 45^th president on January 20, 2017.  Trump ran his presidential campaign from a clear anti-immigration platform.  His ten-point plan, which includes limiting legal immigration, could have substantial effects on business immigration in the U.S.  However, it is still too soon to tell exactly which stances Trump’s administration will, or will be able to, follow through on.  Changes on the business-related immigration side are likely to come in incremental stages and later on, as his first priority will be undocumented immigrants with criminal records.

H-1B Visa Program

Throughout his campaign, Trump spoke out against the H-1B visa program, arguing that it is an abused process used to replace American workers with cheap labor.  He claimed several times that his intentions are to end the program completely.  However, experts say that the program will more than likely not be eradicated, but simply reformed.  For one, Trump, himself, understands the value of high tech global talent.  In addition, the fact that he desires a strong relationship with India, whose tech workers are among the largest group of beneficiaries of the H-1B program, will likely keep him from abolishing the program all together.  With popularity of reform from several congressmen and Trump’s base, it is likely that smaller caps and more stringent qualifications will be imposed.

E-1 and E-2 Treaty Trader and Investor Visas

Trump has been less vocal about planned changes to employment-based visas outside of the H-1B visa.  While it is likely that Trump will make major reforms to the H-1B program, we could also see some changes to the E-1 and E-2 visa classifications, given that they are increasingly the second-best option behind the H-1B visa for many immigrants.  For one, a tougher application of legal standards in immigration court and in consular processing may be applied to all visa categories.  In addition, caps could be implemented, which may be country-specific.  However, since a key part of the E-2 visa program is job creation, it could quite possibly go the other way, with the category growing in number.

Employment Eligibility Verification:  I-9 and E-Verify Programs

Considering employment draws immigrants to the United States, it is likely that we will see stricter enforcement of the Form I-9 verification process under Trump’s presidency.  Starting next year, there will likely be more ICE officers and immigration judges hired to expedite cases.  This increase in staff may lead to an increase in the number of worksite inspections for I-9 compliance.  It is also possible that there will be an increase in penalties and fines for any violations uncovered.  Therefore, it is important for employer’s to ensure that their paperwork, policies, and practices are in order in case of an audit.  Given that Trump may overturn President Obama’s Deferred Action for Childhood Arrival (DACA), employers also need to be aware of which of their current foreign-born employees may become immediately undocumented and take proper action.

Trump has consistently applauded the E-Verify process for its systematic ability to filter out unauthorized employment.  In his position paper on immigration, he would mandate that the E-Verify process be used across the U.S.  Although, Trump will likely meet the same resistance as Congress has in the past, when it tried and failed several times to implement mandatory E-Verify.  That being true, Trump may still be able to strengthen or increase the program through unilateral executive orders.

In Closing

Although it is still too soon to tell precisely which of Trump’s campaign promises he will have the time, resources, or support to follow through on, it is a good idea to be informed and alert to the timing and the next steps required concerning your immigration matters and remain proactive, both as an employer and employee.  If you haven’t moved forward on a viable case, we would recommend that you meet with immigration counsel to prepare for the upcoming months under the new administration.  You can contact our office here.

USCIS received 233,000 new H-1B petitions last year against a quota of 85,000, and this year is expected to be even higher for FY 2017. Approximately one-half of the submitted petitions were not accepted for processing. As the economy has grown and and gained momentum, employers have been planning for months and making a list of candidates for whom they want to file H-1Bs.  The demand is expected to be huge this filing season, and the quota will be met in lightening speed. There are 5 business days to submit your cases, from April 1 to April 7, 2016 to access the opportunity of securing an extremely limited number of new H-1B slots.

So, planning is of the utmost importance.  Here are some important tips to get ready for H-B case filing on April 1^st:

• Assess your employment needs. Start to assess the number of H-1B petitions that your firm wishes to file. Coordinate with your immigration provider and assess legal and government filing fees.
• Do you need to obtain Credential Evaluations for your foreign educated applicants? Get this done early as the evaluation services will be swamped. Assess the relationship between the applicant’s degree and the position being offered. Does the degree equate to a 4-year US degree? If not, can the applicant produce employment verification letters so that previous work experience can be used to develop an evaluation that creates a nexus between their education and the offered position and to meet the degree requirement? It takes time to obtain these letters; therefore, close analysis of degree issues is of the utmost importance. These issues are being scrutinized more closely by USCIS each year. Lastly, if you wish to sponsor the applicant for their green-card in the future, make sure that the strategy you adopt for the H-1B can take you into a successful green-card process.
• Get the Labor Condition Application (LCA) early. It can take up to 7 business days to receive LCA’s from the Department of Labor (and longer as the clock ticks toward April 1^st). Once you have identified your hiring needs and obtained the necessary documentation to start the H-1B process, file the Labor Condition Application to avoid delays. Even though early filing means a shorter validity period for the H-1B petition, it is still advisable to have a timely filed and certified Labor Condition Application in hand for a complete case filing with USCIS.
• Start gathering necessary H-1B documentation right now. Develop your detailed job descriptions (not a list of requirements, but actual daily job duties and responsibilities).  Work with your legal team and the applicants that you wish to sponsor. Obtain degrees, transcripts, credential evaluations, employment letters, status documentation. These are required documents and do take time to analyze and assemble and, if missing, create delays and RFE’s.
• Be prepared for last minute changes in procedures and requirements. Last-minute changes in USCIS and Labor Department processes often arise with each new H-1B filing season.  Our office, of course, will keep you apprised as we continue to monitor any changes in procedure or requirements.

We are already accepting H-1B cases for processing and welcome your business.  Contact info@immigrationcompliancegroup.com or call 562 612.3996.

USCIS is seeking public comments on a proposed rule that would modernize and improve certain important aspects of employment-based nonimmigrant and immigrant visa programs. USCIS is also proposing regulatory amendments to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs).

Read the notice of proposed rulemaking published in the Federal Register on December 31, 2015: Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers. The public has until February 29, 2016 to comment.

Among other things, the DHS proposals to amend its regulations entail the following:

…  To clarify and improve longstanding agency policies and procedures implementing sections of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA) related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
…  To better enable U.S. employers to employ and retain certain foreign workers who are beneficiaries of approved employment based immigrant visa petitions (I-140 petitions) while also providing stability and job flexibility to these workers. The proposed rule will increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.
…  To improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval
…  To clarify when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I 140 petitions because the employer withdrew the petition or because the employer’s business shut down.
…  To allow certain high-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization if they:

1.         Are the beneficiaries of an approved I-140 petition,

2.         Remain unable to adjust status due to visa unavailability, and

3.         Can demonstrate that compelling circumstances exist which justify issuing an employment authorization document.

Such employment authorization may only be renewed in limited circumstances.

…  To clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, clarification concerning which H-1B nonimmigrants are exempt from the statutory cap to ensure that those who are contributing to US research and the education of Americans may remain in the USA; and protections for whistleblowers.
…  To establish a one-time grace period during an authorized validity period of up to 60 days for certain high-skilled nonimmigrant workers whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.

These proposed changes do not take effect with the publication of the notice of proposed rulemaking. Instead, they would take effect on the date indicated in the final rule when the final rule is published in the Federal Register.  Here is the proposed rule.  To submit comments, follow the instructions.  You may submit comments, identified by DHS Docket No. USCIS-2015-0008, by one of the following methods:

Federal eRulemaking Portal: You may submit comments to USCIS by visiting http://www.regulations.gov. Follow the instructions for submitting comments.  By email: You may submit comments directly to USCIS by emailing them to: USCISFRComment@dhs.gov. Please include DHS Docket No. USCIS-2015-0008 in the subject line of the message.

The Department of Labor:  Modernizing the Permanent Labor Certification Program (PERM)

DOL is engaging in rule making that will consider options to modernize the PERM program to be more compatible to changes in the US workforce, to further align the program design with the objectives of the US immigration system and the needs of workers and employers, and to enhance the integrity of the labor certification process.  This is not expected to be proposed until April 2016.

With the rash of RFE’s increasing year by year, this article is extremely informative and useful.

The important take away…..Work with evaluators that analyze USCIS policy and trends and that understand the education that is required for the type of visa being applied for.  Oftentimes there is a rush to secure an evaluation before nailing down the job title and job description with the client; this is a mistake.

So, whose fault is it REALLY and why does it matter whose fault it is anyway?

Sometimes it is the attorney or evaluators fault, but sometimes it is CIS’s fault.

Sometimes it is the fault of the evaluation but not the evaluator.

Sometimes it is CIS’s fault.

Sometimes it is the candidate’s fault.

Sometimes it is no one’s fault at all.

For more, refer here

We thank Sheila Danzig, TheDegreePeople.com, for this excellent article.

It’s almost that time of year again for H-1B filing season FY 2016 (commencing April 1, 2015), and  it’s not too early for employers to be discussing hiring needs with their management team and assessing where in the organization they wish to sponsor H-1B professionals, and identifying  potential candidates that they may want to sponsor for H-1B status. This could include, for example, recent graduates employed pursuant to F-1 Optional Practical Training, foreign nationals in TN status that the company may wish to sponsor for permanent residence, and candidates in L-1 status working for other employers or in some other non-immigrant classification who would need to change their status to H-1B in order to extend their stay and accept new employment.

The H-1B job offer and the job description must be for a specialty occupation that requires a minimum of a bachelor’s degree or its foreign equivalent.

What is the definition of a specialty occupation? A specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its US equivalent.  For example, architecture, engineering, IT, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, and the arts are considered specialty occupations.

Small to medium-size companies are frequently asked to justify why the position  requires someone with a bachelor’s degree and to explain, through various types of evidence including organizational charts, examples of work being produced, the education of previous employees in the position, etc., why their business is more unique than other similar businesses in their industry that they would require a candidate with a bachelor’s degree in a particular position.

Bachelor’s Degree equivalency can be attained through a single-source foreign degree that meets US standards, a combination of a degree and work experience, or a work experience alone equivalency that meets the “3 for 1” rule; namely, that 3 years of work experience is equivalent to 1 year of university level education (this requires an expert credential evaluation by a service or university that is authorized to evaluate work experience for degree equivalency).

Note: Bear in mind that if you have a skilled immigration professional that has a strategy in place for their green-card sponsorship (permanent residency), it is essential that the degree and its equivalency be carefully reviewed so that it will be compatible with the classification under which they will file their labor certification, the first step in the green-card process.

USCIS now requires very detailed job descriptions for H-1B visa petitions that contain the position summary, duties and responsibilities, as well as the percentage allocation spent on each job duty. It is hard to imagine that a job description with a 15-bullet point list of duties and a full page in length is insufficient, but when you work with a skilled immigration practitioner, this can be successfully argued against the O*NET occupational classification system and the Occupational Outlook Handbook, which is the primary source of job information for USCIS and the Department of Labor.

In summary: Employers need to be prepared with complete job descriptions for their H-1B prospective employees and document the need for a degreed professional thoroughly in their casework.

Discuss your H-1B requirements as well as any other business immigration matters by contacting us at info@immigrationcompliancegroup.com, or call 562 612.3996.

The U.S. technology industry might finally get the immigration reform that it wants. Bipartisan Senate groups introduced two tech-focused bills this month.  The Immigration Innovation Act – which increases the cap on H-1B Visas from 65,000 to 115,000, eliminates per-country limits on visa petitioners and lets spouses of H-1B visa holders work – came out of conversations with corporate tech leaders.

The Startup Act, which already has been introduced on three earlier occasions, creates a new visa category for foreign entrepreneurs.

For more:  http://www.bloombergview.com/articles/2015-01-22/obama-immigration-reform-h-b1-visas-and-silicon-valley