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Now that H-1B cap season has closed, many employers will be searching for other options for foreign skilled workers who were not selected in the lottery.
Alternatives to H-1B visas have become increasingly important to business planning in recent years. This week, a record 233,000 H-1B cap petitions were filed, from which the lottery selected a maximum quota of 85,000 (which includes the 20,000 reserved for holders of advanced U.S. degrees), leaving companies to find other ways to retain thousands of candidates who will not obtain H-1B status.
Some other visa options for temporary workers are:
F-1 student visas. Recent graduates can extend F-1 status allowing them to perform work directly related to their major area of study for up to 12 months through Optional Practical Training (OPT). Students who hold degrees in science, technology, engineering or mathematics that appear on the STEM-Designated Program List may apply to extend their OPT status for an additional 17 months, as long as their employer is enrolled in E-Verify. An option for foreign employees whose H-1B petitions were rejected this year is to apply for F-1 status by enrolling as a full-time student at a Student and Exchange Visitor Program (SEVP) approved school, and to apply for OPT or Curricular Practical Training (CPT), which allows employment during the course of study under certain circumstances.
J-1 exchange visitors. Employers may explore the J-1 exchange visitor visa, typically for students and graduates of foreign universities. Companies may bring a foreign candidate to the U.S. as a trainee for up to 18 months or as an intern for up to 12 months. It is important to note that employers may not use this visa category to fill positions that are filled or would be filled by either full-time or part-time employees. This visa category is also subject to other limitations; for example, exchange visitors must not only prove their intent to return to their home country but some foreign nationals are required to return to their home country for two years at the end of their J-1 status.
O-1 “extraordinary ability” visas. Candidates who have demonstrated excellence in business, science, education, art or athletics may qualify for an O-1 visa. This category requires evidence of distinguished achievements such as published articles, peer-reviewed activities, major awards, high salaries or employment in a critical capacity for a well-known organization.
L-1 intra-company transfers. Companies with international offices may transfer foreign employees in managerial or specialized knowledge positions from a foreign branch, affiliate, parent, or subsidiary office to their U.S. offices under the L-1 program. However, only employees who have worked for at least one year in the company’s foreign operations are eligible. Some companies may consider sending select candidates to work abroad and then apply for them to return to the U.S. with L-1 status the following year. Individuals possessing “specialized knowledge” (L-1B visas) may stay for up to five years in the U.S., while managerial workers (L-1A visas) may stay for up to seven years.
Country-specific nonimmigrant visas. Certain foreign citizens qualify for temporary, nonimmigrant status based on country-specific agreements with the U.S. These include H-1B1 specialty occupation visas for citizens of Chile and Singapore, E-3 specialty occupation status for Australian citizens, and TN classification for citizens of Canada and Mexico for professional categories enumerated in the North American Free Trade Agreement (NAFTA).
BAL Analysis: Employers are encouraged to work with their BAL attorney to explore alternatives for their current job candidates as well as to map out long-term options for their workforce.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
On April 9, U.S. Citizenship and Immigration Services issued a binding, precedent decision that requires an employer to file an amended petition with USCIS whenever an H-1B worker moves to a worksite that was not covered by a Labor Condition Application (LCA) submitted with the initial petition. The decision imposes a significant operational and financial burden on companies that move H-1B workers between worksites.
Is an employer required to file an amended H-1B petition if there is a change in the place of employment?
In Matter of Simeio Solutions, the Administrative Appeals Office (AAO) issued a binding, precedent decision holding that a change in the place of employment of a beneficiary to a geographical area that requires the filing of a new LCA constitutes a material change in employment and requires the filing of an amended petition. 26 I&N Dec. 542 (AAO 2015).
The precedent decision explicitly supersedes earlier agency guidance, including the “Efren Hernandez” letter that indicated that an amended petition was not required if a new LCA was obtained prior to placing an H-1B worker at a new worksite. See Letter from Efren Hernandez III, Dir., Bus. and Trade Branch, USCIS, to Lynn Shotwell, Am. Council on Int’l Pers., Inc. (Oct. 23, 2003).
As discussed in greater detail below, there are circumstances when an employer may place an H-1B worker at a different worksite without the need to secure a new LCA. In those situations, the AAO precedent decision does not require an employer to file an amended H-1B petition unless there is a material change unrelated to the geographic change.
Is the precedent decision binding on all agencies and H-1B petitions?
Yes. Because the AAO decision was designated a precedent decision and published by the Justice Department, it is legally binding on Department of Homeland Security components responsible for enforcing immigration laws in all proceedings involving the same issue or issues. This means the policy will be applied by all USCIS service centers and it is expected that the policy will be followed by consular officers overseas.
When does the new policy go into effect?
The new policy is effective immediately.
Does the policy apply to changes in work location that occurred prior to the AAO decision?
The government has not stated whether an employer is required to file an amended petition if the change in worksite occurred prior to April 9, the date the precedent decision was published. A conservative approach would be to file an amended petition on behalf of any H-1B worker who is located at a worksite that was not covered by an LCA submitted with the initial petition.
Can an employee begin working at the new location before the amended petition is approved?
The AAO precedent decision does not address this question, though it is significant that the decision only references the need to file an amended or new petition and does not explicitly require the approval of the amended petition before the H-1B worker can begin working at the new worksite.
What are the consequences if the company does not follow the new policy?
USCIS regulations provide that “a nonimmigrant who is permitted to engage in employment may engage only in such employment as has been authorized. Any unauthorized employment by a nonimmigrant constitutes failure to maintain status.” 8 CFR § 214.1(e). The government may argue that an employee who works after the date of the decision at a location not covered by a new or amended petition violates his or her H-1B status. This would render the H-1B worker subject to removal (deportation) and, upon a formal determination by USCIS that the employee is out of status, would start the unlawful-presence clock that could trigger the 3- or 10-year inadmissibility bar.
USCIS regulations further provide that “[a]n extension of stay may not be approved for an applicant who failed to maintain the previously accorded status” and the employee could face difficulty obtaining a new H-1B visa at an overseas consulate. See 8 CFR 214.1(c)(4). It is also expected that USCIS will seek to revoke an H-1B petition if a Fraud Detection and National Security Directorate (FDNS) site visit reveals that the H-1B employee is working at a location not covered by an amended or new H-1B petition.
It is not yet known whether the Labor Department, like USCIS, will take the position that a company is failing to comply with its LCA obligations if it fails to submit an LCA to USCIS through an amended or new petition. If the Labor Department adopts the same interpretation, a company could face severe civil penalties, up to and including debarment from the immigration program, if it fails to comply with the new AAO precedent decision.
How can an employer minimize the impact of the AAO precedent decision?
The AAO decision will force companies to evaluate whether and when a new LCA is required, as that is the triggering event for filing an amended petition. In particular, companies will want to consider the following questions:
Companies should work with their BAL professionals to evaluate options and risks for roving employees.
U.S. Citizenship and Immigration Services will begin premium processing for cap-subject H-1B petitions April 27, the agency said Tuesday.
Before Tuesday, USCIS had said premium processing for H-1B processing would begin “no later than May 11, 2015.” The announcement that the premium processing will begin April 27 is particularly noteworthy given the extremely high number of H-1B petitions that were filed. Premium processing is an expedited service under which USCIS guarantees an approval notice, request for evidence, or denial within 15 calendar days.
USCIS received almost 233,000 H-1B cap-subject petitions during this year’s filing period, which began April 1. This year marked the third consecutive year in which the limit of H-1B cap-subject visas was reached within the first week of filing. The number of petitions filed topped last year’s tally by more than 60,000.
USCIS held a computer-generated lottery Monday to determine which of the petitions would be eligible for processing. Congressionally mandated caps limit the number of H-1B visas issued to 85,000 per year, a number which includes 20,000 reserved specifically for foreign nationals with a master’s degree or higher from a U.S. university.
BAL Analysis: The announcement that premium processing will begin sooner than originally estimated is good news for employers who are anxiously awaiting the outcome of the lottery. USCIS has already begun issuing a small number of initial H-1B cap receipts for premium processing cases and BAL expects that receipts will continue to be issued in the coming weeks.
According to the May 2015 Visa Bulletin, the priority date for the EB-2 category for China will advance over one year from April 1, 2011 to June 1, 2012. Indian workers in the EB-2 category will also see progress, as the priority date for this category will move ahead over seven months from Sept. 1, 2007 to April 15, 2008. All other EB-2 preferences categories will remain current.
In the EB-3 category, the Philippines will see substantial retrogression of more than seven years, with priority dates moving back to July 1, 2007 from Oct. 1, 2014. EB-3 China will advance by four months to May 1, 2011, while EB-3 India will advance only slightly by one week to Jan. 15, 2004. The priority date for EB-3 Rest of World and Mexico will advance by three months to Jan. 1, 2015.
Summary of May 2015 Visa Bulletin:
EB-1 Current across all countries
EB-2 China: June 1, 2012 India: April 15, 2008 All other countries: Current
EB-3 China: May 1, 2011 India: Jan. 15, 2004 Mexico: Jan. 1, 2015 Philippines: July 1, 2007 All other countries: Jan. 1, 2015
U.S. Citizenship and Immigration Services received nearly 233,000 H-1B cap-subject petitions during this year’s filing period, the agency said in a statement Monday. USCIS also confirmed that it has completed the lottery selection.
Petitions that were not selected will be returned with their filing fees. Premium processing for H-1B cap petitions will begin no later than May 11, USCIS said.
USCIS received about 60,500 more petitions than it did last year, and about 148,000 more than the cap placed on the number of H-1B visas that can be issued per year. The annual quotas for H-1B visas are 65,000 for undergraduate-degree holders and an additional 20,000 for foreign nationals with a master’s degree or higher from a U.S. university.
The computer-generated selection process, or lottery, was completed Monday, USCIS said.
The lottery took place in two phases: First, 20,000 petitions were drawn from those holding master’s degrees or higher; then 65,000 petitions were drawn from a pool consisting of those not selected from the first draw plus undergraduate-degree holders.
On April 7, USCIS announced that the number of petitions it had received exceeded the congressionally mandated caps. This year marked the third straight year that H-1B cap-subject visas were reached within the first week of filing.
USCIS continues to accept and process petitions that are not subject to the cap, including petitions to extend the time an H-1B holder can stay in the country, to change the terms of an H-1B visa holders employment, and to allow an H-1B holder to work concurrently in another H-1B position.
BAL Analysis: It was widely expected that the number of H-1B filings would greatly exceed the actual availability of H-1B visa numbers. With a 30 percent likelihood of winning an H-1B visa number, companies will be forced to consider alternative visa options or overseas assignments for high-skilled employees. Please consult with a BAL professional for advice regarding alternatives to the H-1B visa category and other strategic options to fulfill workforce needs.
The appeals panel of U.S. Citizenship and Immigration Services has clarified the definition of “doing business” for purposes of immigrant petitions for a multinational manager or executive.
An employer does not have to prove that it has been “doing business” with an unaffiliated third party, and may establish eligibility through proof of provision of goods and/or services to related companies within its multinational organization, the Administrative Appeals Office ruled in a precedential case yesterday.
Under regulations, the U.S. employer must establish that it has been doing business for at least one year.
In this case, the petitioning company, a U.S. subsidiary of a Chinese clothing company, provided extensive evidence of its provision of services to its foreign affiliate. USCIS denied the petition on grounds that the petitioner had not provided evidence of “‘doing business’ with independent corporations or entities.”
However, on appeal, the AAO concluded that USCIS imposed a stricter definition of “doing business” than the regulation requires.
The “definition of “‘doing business’ … contains no requirement that a petitioner for a multinational manager or executive must provide goods or services to an unaffiliated third party,” the AAO said, adding that a “petitioner may establish that it is ‘doing business’ by demonstrating that it is providing goods and/or services in a regular, systematic, and continuous manner to related companies within its multinational organization.”
The case is Matter of Leacheng International, Inc., 26 I & N Dec. 532 (AAO 2015).
A change to an H-1B employee’s place of employment to a geographical area that requires the filing of a new Labor Condition Application (LCA) constitutes a “material change in the terms and conditions of employment,” and the employer must file a new or amended H-1B petition, the Administrative Appeals Office (AAO) has ruled in affirming a decision by U.S. Citizenship and Immigration Services.
The employer, an information technology company, attested in its original H-1B petition that the employee would be stationed at its Long Beach, California facility, but later confirmed that the employee was no longer working on the same project or at the same location, and submitted a new LCA naming two other worksites as the employee’s places of employment: Camarillo, California, and Hoboken, New Jersey. In the original H-1B petition, the company attested that it would pay the employee an annual salary of $50,232 – a wage that proved to be $9,000 less than the wage required by law in the two locations where the employee was actually working.
Because the original wage attestation was now insufficient and no longer corresponded with the new LCA, the AAO found that this change in place of employment affected the employee’s underlying eligibility for H-1B status. The AAO concluded that this was therefore a material change in the terms and conditions of employment, which triggered the employer’s obligation to “immediately notify USCIS and file an amended or new H-1B petition, along with the corresponding LCA certified by the Department of Labor, with both documents indicating the relevant change.”
The case is Matter of Simeio Solutions, LLC, 26 I & N Dec. 542 (AAO 2015).
BAL Analysis: This decision will have an immediate impact on the way in which H-1B cases are processed, as employers must now file a new or amended H-1B petition in all cases involving a geographic change of place of employment that requires the filing of a new LCA.
The H-1B cap filing period this year went exactly as expected: The government was hit with a deluge of petitions, congressionally mandated caps were reached within days, and U.S. Citizenship and Immigration Services announced that it would hold a lottery to select petitions that will be eligible for visa processing.
Some would like to see the process change.
“We have to find ways to make progress and solve some of the real problems facing our nation,” said Sen. Orrin Hatch (R-Utah), when he and other senators introduced the Immigration Innovation (I-Squared) Act of 2015, a bill that would increase the number of H-1B visas available to employers.
The proposed legislation would increase the H-1B cap to at least 115,000 per year – and as high as 195,000 per year in some cases, depending on demand.
During the Great Recession, the quotas of 65,000 visas for foreign nationals with an undergraduate degree or equivalent and 20,000 for foreign nationals with advanced U.S. degrees took significantly longer to fill, but these trends have since been reversed. In 2009, it took almost nine months before caps were reached and in 2010, it took almost 10 months. In 2011, the time frame dropped under eight months and in 2012, it dropped to just over two months. In each of the last three years, however, the caps were reached within a week.
The demand for the H-1B visas is largely driven by the technology sector. Brookings Institution data from 2013 showed that computer-related occupations make up more than 70 percent of the jobs H-1B petitioners seek. Jobs at the top of the list include computer systems analysts, computer programmers, software developers and computer and information systems managers. Brookings also found that 90 percent of H-1B petitions were for positions that required high-level STEM (science, technology, engineering and mathematics) knowledge. H-1B demand is also high in business, finance, healthcare and life sciences.
There is precedent for raising the H-1B cap. As petitions piled up in the late 1990s, Congress raised the cap to 115,000 for the 1999 and 2000 fiscal years. Congress raised it again to 195,000 for fiscal 2001, 2002 and 2003. The legislation was not renewed, however, and in 2004 the cap dropped back to 65,000, where it was initially set in 1990. Congress subsequently enacted legislation to provide the 20,000 additional visas for foreign nationals with advanced degrees from U.S. universities – a cap I-Squared would lift entirely.
BAL Analysis: It’s difficult to determine whether the cap will be raised in the near future. I-Squared has some bipartisan support, but there are plenty of opponents to high-skilled immigration reform as well. Executive action does not appear to be an option, as the Obama administration has said the president does not have the authority to raise the H-1B cap unilaterally.
The H-1B cap filing period has closed, U.S. Citizenship and Immigration Services announced April 7.
The number of H-1B petitions filed during the first week of the application period exceeded the caps of 65,000 visas for foreign nationals with an undergraduate degree or equivalent and 20,000 visas for foreign nationals with master’s degrees or higher from U.S. universities. A lottery will now determine which petitions will be eligible for processing. Petitions received after April 7 will be returned with their filing fees.
USCIS has not confirmed the total number of petitions it received or set a date for the lottery.
“Before running the lottery, USCIS will complete initial intake for all filings received during the filing period, which ended April 7,” USCIS said.
The lottery will happen in two phases. Petitions for individuals holding U.S. master’s degrees and higher will be placed in the first pool. Once 20,000 are selected from that group, the remainder will be put in a pool with petitions for candidates holding undergraduate degrees or equivalent. Sixty-five thousand petitions will be drawn from the second pool.
Employers whose petitions are accepted in the lottery 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 2016 fiscal year. Petitions that are not selected will be returned with their filing fees.
BAL Analysis: As expected, H-1B petitions exceeded the cap within the first week of filing. The number of petitions is expected to surpass last year’s total of about 172,500. BAL will continue to update clients as USCIS tallies the petitions, conducts the lottery and begins processing.
U.S. Citizenship and Immigration Services began accepting H-1B cap-subject petitions today.
For companies that are filing for the first time this season or need a refresher on the process, here is what you can expect:
USCIS has already predicted that the quotas will be reached within the first five business days of filing, but within the first few days the agency should have a sense of the volume of petitions and how soon the cap will be reached. If the number of petitions exceeds the cap in the first five business days, as expected, USCIS will announce the news around April 7. The cap is set at 65,000 for H-1B candidates holding undergraduate degrees or equivalent, plus an additional 20,000 for those holding U.S. master’s degrees or higher. Even if the cap is reached before April 7, the regulations allow USCIS to accept petitions through the first five business days; if it receives an excess of petitions during that time frame, it will use a lottery system to randomly select the number of petitions required to meet the cap. Any cap-subject petitions received after the first five business days will be returned with their filing fees.
The lottery that USCIS is expected to run after April 7 may require a few days to prepare because the agency must count and confirm the number of petitions received before it can conduct the lottery. For example, last year, petitions topped 172,000 and the lottery was finished by April 10. The lottery consists of two draws: 20,000 petitions will first be selected from the pool of individuals holding U.S. master’s degrees or higher, and any unselected petitions from that pool will be placed into a second lottery from which 65,000 petitions will be drawn. Petitions for those holding U.S. master’s degrees or higher therefore have better odds, since they get two chances of being randomly chosen.
USCIS will issue receipt notices to those selected and will return all other petitions with their filing fees. For cases that were filed under regular processing, receipt notices may take longer than a month to be issued. For cases filed under premium processing, the agency has projected that it will begin adjudicating petitions no later than May 11; employers awaiting receipt notices may note that last year USCIS started premium processing earlier than its projected date. Employers will receive receipt notices via email for premium-processing cases accepted in the lottery, informing them that processing has begun. Rejected petitions will be sent by mail.
H-1B petitions that are not subject to the cap will continue to be processed regularly. Those exempt from the cap include current H-1B workers seeking to extend or change their stays who were subject to the cap in past years.
BAL Analysis: BAL will continue to file H-1B cap petitions through April 7 and will continue to report on the status of the cap and lottery in the coming days.