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U.S. Citizenship and Immigration Services announced today that the filing period for H-1B cap-subject petitions has closed and that it will conduct a lottery to select petitions that will be eligible for processing.
This marks the fourth consecutive year that the H-1B cap was reached within the first week of filing. Caps are set at 65,000 visas for individuals with undergraduate or equivalent degrees and 20,000 visas for individuals with master’s degrees or higher from U.S. universities.
USCIS has not yet set a date for the computer-generated lottery, citing the “high number of petitions” filed since April 1. The agency must complete initial intake for all filings before the lottery can be held.
The lottery is a two-step process. First, petitions for individuals holding U.S. master’s degrees and higher are placed in a pool, from which 20,000 petitions are randomly selected. Unselected petitions from the first draw are put in a pool with the petitions for candidates holding undergraduate degrees or equivalent. In the second draw, 65,000 petitions are selected.
Employers whose petitions are selected will receive receipt notices and, if approved, employees will be eligible to begin work in H-1B status beginning Oct. 1, the start of the 2017 fiscal year. Petitions subject to the cap that are not selected or that are received after today will be returned with their filing fees.
USCIS will continue to accept H-1B petitions that are exempt from the cap, as well as petitions to extend the amount of time an H-1B holder can stay in the country, to change the terms of employment for an H-1B holder, to allow H-1B holders to switch employers or to allow H-1B holders to work concurrently in another H-1B job.
BAL Analysis: As anticipated, H-1B petitions exceeded the cap within the first week of filing. USCIS has not released information about how many petitions were received, but the number is likely to significantly exceed congressionally mandated quotas. BAL will continue to update clients as USCIS tallies the petitions, conducts the lottery and begins processing.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact BerryApplemanLeiden@bal.com.
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U.S. Citizenship and Immigration Services is proposing a new fee schedule for visa and other immigration-related applications and petitions.
According to the agency, it is adjusting its fees because “the current fee schedule does not adequately recover the full costs of services provided by USCIS.”
The proposed fee schedule has not been released, but is expected to be published this month and then open to a public comment period until June. By statute, the agency may review fees biennially and recommend revising them to better reflect government costs in providing services.
BAL Analysis: Employers and individuals should expect increases in government processing fees for immigration-related applications, including nonimmigrant petitions and visa applications.
U.S. Citizenship and Immigration Services began accepting H-1B cap-subject petitions today. The agency has already said it expects the number of petitions filed to exceed the maximum number of H-1B visas available this year within five business days.
This would mark the fourth straight year that the H-1B cap is reached within the first week of filing.
Congress set the annual cap on H-1B visas at 65,000, plus 20,000 additional visas for people with a master’s degree or higher from a U.S. university. For those filing for the first time or in need of a refresher, here is how the process is likely to unfold over the next few weeks:
Petitions that are filed with a request for premium processing are eligible for expedited 15-day processing. USCIS announced in March that premium processing would begin no later than May 16, meaning employers should expect to wait until late May for adjudication of those petitions.
BAL Analysis: The H-1B cap has been reached in the first week of filing in each of the past three years, and there is every indication that the same thing will happen this year. USCIS received nearly 233,000 H-1B cap-subject petitions during last year’s filing period, up from about 172,500 in 2014. BAL will continue to file H-1B cap petitions for the duration of the filing period, and will continue to report on the status of the cap and the lottery in the coming days.
Until further notice, employers may continue to use the current Form I-9, Employment Eligibility Verification, beyond the expiration date of March 31, 2016 stamped on the form, according to U.S. Citizenship and Immigration Services.
The agency is working on a new version of Form I-9, and will provide updated information as the new version becomes available. USCIS is currently accepting comments from the public on proposed revisions to the form. Additional information about this process can be found on the agency’s website.
Employers must complete Form I-9 for all newly hired employees to verify their identity and authorization to work in the U.S.
IMPACT – MEDIUM
What is the change? The Saudi Ministry of Labor is strictly enforcing measures that require foreign workers to adhere to the job specified by their work permit.
What does the change mean? Employers are legally prohibited from employing a foreign worker in a job other than the job title for which the work permit was granted or for a job unrelated to the company’s permitted activities.
Background: The job title of foreign employees must be related to their academic degree and not be on the list of restricted jobs. The list of jobs reserved for Saudi nationals include head of personnel department, director of labor affairs, director of personnel relations, employment clerk, receptionist (general, hotels and hospitals), cashier and typist.
BAL Analysis: Employers should be aware of the stricter enforcement by the Ministry of Labor and are reminded that they must take legal steps before a foreign worker engages in a new profession. For an inter-company transfer of sponsorship, the job title must be amended within seven days from issuance of the iqama under the new employer.
This alert has been provided by the BAL Global Practice group and our network provider located in the Saudi Arabia. For additional information, please contact your BAL attorney.
U.S. Citizenship and Immigration Services (USCIS) has announced that it has begun transferring some petitions, including H-1B, L-1, and other petitions, from its Vermont Service Center to its California and Nebraska Service Centers to balance workloads.
The transfer of cases will not interrupt or change the filing of H-1B petitions during cap season. The filing location and filing instructions for initial petitions has not changed; the case load transfer is an internal USCIS procedure.
Some cases in the following categories may be transferred to the Nebraska Service Center:
Some cases in the following categories will be transferred to the California Service Center:
If a case is transferred, USCIS will send the petitioner a notice. The agency has said that the transfers will not delay processing. Applicants may continue to check processing times on the USCIS webpage, but those who receive a notice that their case has been transferred should wait two weeks from the notice date before referring to the processing times.
BAL Analysis: The transfer of some cases will not affect the original receipt number of pending cases, or the filing of new cases. Employers may upgrade a previously filed H-1B or L-1 petition to the expedited premium-processing service. If the case was transferred, the premium processing request and additional USCIS fee will be filed at the service center to which the case was transferred. USCIS has published alerts with additional information regarding the Nebraska Service Center and California Service Center transfers.
Beginning Friday, individuals traveling to the United States on the Visa Waiver Program must carry fraud-resistant electronic passports (e-passports), even if they have a valid Electronic System for Travel Authorization (ESTA).
U.S. embassies and consulates are reminding foreign nationals traveling to the U.S. on the Visa Waiver Program to check their passports before the upcoming change takes effect.
What is an e-passport? E-passports contain an electronic chip with biographic and biometric information, and are indicated by a symbol on the cover of the passport. Travelers may check if their passport is valid, and view the e-passport symbol, on the State Department’s Visa Waiver Program webpage.
Background: Several new restrictions to the Visa Waiver Program, including the e-passport requirement, became law in December. The program currently allows nationals of 38 participating countries to be pre-screened and obtain an ESTA without having to apply for a visa at a consulate. While most countries issue e-passports, many older passports do not meet the new legal standards and individuals may need to have them replaced with an e-passport.
BAL Analysis: All travelers planning to travel to the U.S. using the Visa Waiver Program – including those with a valid ESTA – should confirm that they hold an e-passport before boarding their flight. Those who do not have an e-passport must apply for a visitor visa and attend an interview at a U.S. consular post.
U.S. Citizenship and Immigration Services has released a final policy memorandum that provides guidance to officers on determining what constitutes a “same or similar” occupational classification for green card applicants seeking to change jobs without jeopardizing their approved immigrant visa petitions.
Key elements of the guidance:
The full policy memorandum may be viewed here on the USCIS website.
Background: A draft version of the policy memorandum was released in November and USCIS accepted comments from the public until Jan. 4. The final version becomes effective today.
The memorandum affects beneficiaries of approved immigrant visa petitions whose adjustment of status applications have been pending for 180 days or more. These applicants are eligible for “job portability,” which allows them to change jobs and preserve the original petition, provided that the new job is in the “same or similar occupational classification” as the original job.
BAL Analysis: Job portability is an important issue for employers who may wish to provide career advancement or lateral movement to foreign employees during the green card application process. The policy memorandum focuses on SOC codes, reasoning that they provide some measure of objectivity for adjudicators. However, in the final version, USCIS clarifies that SOC codes are neither the only factor nor a mandatory one in the assessment, and should not limit officers’ flexibility to consider other evidence. BAL will monitor officers’ interpretation and application of the guidance, which will determine whether it accomplishes the agency’s goal of providing greater flexibility for employers and employees.
Beginning April 1, all travelers using the Visa Waiver Program to travel to the United States must hold fraud-resistant electronic passports, or e-passports, which contain an electronic chip with biographic and biometric information.
The new requirement is one of several tighter restrictions to the program, which became law in December under the federal budget bill.
Under this provision, countries participating in the Visa Waiver Program must certify that they issue e-passports and must put a system in place to validate e-passports at their ports of entry by Oct. 1. Most Visa Waiver Program countries already issue e-passports, but travelers holding older passports may have to update them.
BAL Analysis: Visa Waiver Program travelers should confirm that they have an e-passport, which can be identified on the face of the travel document, before attempting to travel to the U.S. starting April 1. Individuals who are no longer eligible to enter the U.S. under the program due to the change in law must apply for a visitor visa at a U.S. consular post.
Later this year, Chinese nationals holding 10-year visitor visas will be required to enroll in a new Electronic Visa Update System (EVUS) that is currently being developed by U.S. Customs and Border Protection (CBP).
Once the system is implemented in November, Chinese nationals (mainland only) who hold 10-year visitor (B1/B2, B1, and B2) visas will be required to enroll online before traveling to the United States. Travelers will have to renew their enrollment every two years or when their passport expires, whichever occurs first.
In 2014, the U.S. and China reciprocally lengthened the validity period of visitor visas to 10 years, reducing the need for frequent travelers to renew these visas every year. The bilateral agreement contemplated that each country may require the other’s 10-year visa holders to periodically update their biographical information. The CBP has said that it may expand EVUS to other foreign nationals in the future.
BAL Analysis: Chinese nationals are not required to take action now and may continue to travel to the U.S. on valid 10-year visitor visas until EVUS is implemented. Beginning in November, Chinese nationals with existing, valid 10-year business or tourist visas will be required to enroll in EVUS before making their next entry to the U.S. Those applying for new 10-year visitor visas will be required to enroll in EVUS before making their first trip to the U.S.