May 2016

USCIS Completes Data Entry of Fiscal Year 2017 H-1B Cap-Subject Petitions

USCIS announced on May 2, 2016, that it has completed data entry of all fiscal year 2017 H-1B cap-subject petitions selected in our computer-generated random process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS is unable to provide a definite time frame for returning these petitions. USCIS asks petitioners not to inquire about the status of submitted cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the unselected petitions have been returned

Additionally, USCIS is transferring some Form I-129 H-1B cap subject petitions from the Vermont Service Center to the California Service Center to balance the distribution of cap cases. If your case is transferred, you will receive notification in the mail. After receiving the notification, please send all future correspondence to the center processing your petition. If you are filing a Form I-907, Request for Premium Processing, to upgrade your Form I-129 H-1B petition to premium processing, send the completed Form I-907 with the appropriate fee to the center processing your petition.

April 2016

USCIS Completes the H-1B Cap Random Selection Process for FY 2017

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2016, that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption, also known as the master’s cap.

USCIS received over 236,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 9, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit.

As announced on March 16, 2016, USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will also not be counted towards the congressionally mandated FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States
  • Change the terms of employment for current H-1B workers
  • Allow current H-1B workers to change employers
  • Allow current H-1B workers to work concurrently in a second H-1B position. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming

USCIS Reaches FY 2017 H-1B Cap

U.S. Citizenship and Immigration Services (USCIS) has reached the congressionally mandated H-1B cap for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption.

USCIS will use a computer-generated process, also known as the lottery, to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced degree exemption.

USCIS will first randomly select petitions for the advanced degree exemption. All unselected advanced degree petitions will become part of the random selection process for the 65,000 general cap. The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.

Before running the lottery, USCIS will complete initial intake for all filings received during the filing period, which ended April 7. Due to the high number of petitions, USCIS is not yet able to announce the date it will conduct the random selection process.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted toward the congressionally mandated FY 2017 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States
  • Change the terms of employment for current H-1B workers
  • Allow current H-1B workers to change employers
  • Allow current H-1B workers to work concurrently in a second H-1B position

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

We encourage H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2017 Cap Season Web page.

Current Form I-9, Employment Eligibility Verification, Remains Effective After March 31, 2016

Until further notice, employers should continue using Form I-9, Employment Eligibility Verification.

This current version of the form continues to be effective even after the Office of Management and Budget control number expiration date of March 31, 2016, has passed. USCIS will provide updated information about the new version of Form I-9 as it becomes available.

Employers must complete Form I-9 for all newly hired employees to verify their identity and authorization to work in the U.S. To learn more about Form I-9 visit I-9 Central.

March 2016

Reminder for H-4 Applicants When Traveling Abroad

USCIS would like to remind individuals applying for a change of status to H-4 that if you travel abroad before approval of your Form I-539, Change of Status (COS) application, your application will be considered to be abandoned. This means USCIS will deny your application for change of status to H-4. If you filed your Form I-765, Application for Employment Authorization, and travel abroad before your change of status to H-4 is approved, it will be considered abandoned, along with your I-539 application. This will result in a denial of your Form I-765 even if you are re-admitted as an H-4 nonimmigrant. If re-admitted as an H-4 nonimmigrant, you would need to file a new Form I-765, with fee, in order to apply for employment authorization.

For more information, see the FAQs: Employment Authorization for Certain H4 Dependent Spouses webpage at www.uscis.gov

USCIS Will Accept H-1B Petitions for Fiscal Year 2017 Beginning April 1, 2016

WASHINGTON – On April 1, 2016, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions subject to the fiscal year (FY) 2017 cap. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.

The congressionally mandated cap on H-1B visas for FY 2017 is 65,000. The first 20,000 H-1B petitions filed for individuals with a U.S. master’s degree or higher are exempt from the 65,000 cap.

USCIS expects to receive more than 65,000 petitions during the first five business days of this year’s program. The agency will monitor the number of petitions received and notify the public when the H-1B cap has been met. If USCIS receives an excess of petitions during the first five business days, the agency will use a computer-generated lottery system to randomly select the number of petitions required to meet the cap. USCIS will reject all unselected petitions that are subject to the cap as well as any petitions received after the cap has closed.

Premium Processing for Cap-Subject Petitions

H-1B petitioners may still continue to request premium processing together with their H-1B petition. However, please note that USCIS has temporarily adjusted its current premium processing practice based on historic premium processing receipt levels and the possibility that the H-1B cap will be met in the first five business days of the filing season. In order to prioritize data entry for cap-subject H-1B petitions, USCIS will begin premium processing for H-1B cap-subject petitions requesting premium processing no later than May 16, 2016.

Filing Petitions

H-1B petitioners are reminded that when the temporary employment or training will be in different locations, the state where your company or organization’s primary office is located will determine where you should send your Form I-129 package, regardless of where in the United States the various worksites are located. Please ensure that when temporary employment or training will be in different locations, the address on page 1, part 1 of Form I-129 is for your organization’s primary office. Please note that when listing a “home office” as a work site location on Part 5, question 3, USCIS will consider this a separate and distinct work site location.

H-1B petitioners must follow all statutory and regulatory requirements as they prepare petitions in order to avoid delays in processing and possible requests for evidence. USCIS has developed detailed information, including an optional checklist, Form M-735, Optional Checklist for Form I-129 H-1B Filings, on how to complete and submit an FY 2017 H-1B petition. The optional checklist for FY 2017 will be available within the next week.

Cases will be considered accepted on the date USCIS receives a properly filed petition with the appropriate fees.

For more information on the H-1B nonimmigrant visa program and current Form I-129 processing times, visit the H-1B FY 2017 Cap Season Web page or call the National Customer Service Center at 800-375-5283 or 800-767-1833 (TDD for the hearing impaired). We encourage H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B FY 2017 Cap Season Web Page.

DHS Final Rule on OPT For STEM Students and Cap-Gap Relief

The Department of Homeland Security is issuing a final rule that will allow certain foreign students with science, technology, math, or engineering (STEM) degrees to extend their optional practical training or "OPT" period by 2 years, on top of the 1 year already allowed for graduates in all fields. The rule is scheduled to go into effect on May 10, 2016.

Giving foreign students the opportunity to stay in the United States after graduation to apply what they learned in their studies and receive practical training enhances the student's educational experience while allowing U.S. employers to benefit from the knowledge and skills graduates gain at U.S. colleges and universities.

International students make significant contributions to the United States, through the payment of tuition and other expenditures in the U.S. economy, and significantly enhance academic discourse and cultural exchange on campuses throughout the United States.

In addition, STEM students contribute to our nation through research, innovation, and the provision of knowledge and skills to help develop key industries and sectors of the U.S. economy.

With competition for international students increasing across the globe, a program providing additional opportunities for STEM graduates to apply their knowledge in a practical setting with a U.S. employer will enhance the reputation of the United States as a top destination for foreign students.

The final rule will give STEM graduates a total of three years of OPT, up from the 29 months that they are afforded under the current regulations. This will allow STEM graduates and employers the flexibility they require to complete complex research and development projects.

As with the prior STEM OPT rule extensions are permitted only for students employed by employers who participate in the USCIS electronic employment verification program known as E-Verify.

The rule also increases oversight of the STEM OPT program by implementing robust new integrity measures including:

  • Requiring individualized training plans developed by the employer and the student.
  • Requiring the student to regularly report to the university's designated school official.
  • Requiring the employer to attest that the student will not replace a full- or part-time, temporary or permanent U.S. worker.
  • Requiring an employer to offer the same terms, conditions, hours, and compensation to the STEM OPT student as similarly situated U.S. workers.
  • Allowing extensions only to students with degrees from accredited schools.

Authorizing site visits by ICE to verify training plans, compensation, and non-displacement attestations employers are required to sign.

USCIS Alert: Updated Edition of Form I-864P Posted

USCIS has published an updated edition of Form I-864P, Poverty Guidelines. The new edition is dated 03/01/2016 and previous editions should not be used.

More info here

February 2016

USCIS Processing Delays for H-1B Extensions

USCIS Service Center Operations (SCOPS) is aware of the issue of lengthy processing times both at the USCIS California Service Center and USCIS Vermont Service Center, and is working closely with USCIS Service Centers to work through the backlog. Of particular concern are H-1B extensions which are taking longer than the regulatory 240 day employment authorization for timely-filed H-1B Petitions for Extension of Stay.

January 2016

DOL Alert: Technical Problems with OFLC's iCERT System

DOL's Office of Foreign Labor Certification (OFLC) posted an announcement on its website that it has been experiencing technical network problems with the iCERT Visa Portal System, resulting in processing delays. Specifically, although the iCERT System's application and database are working properly, the network infrastructure supporting the system is exhibiting performance issues that are significantly impacting the ability to process case actions for employers. OFLC stated that it is working to fix the problem as soon as possible.

https://www.foreignlaborcert.doleta.gov/

District Court Extends Stay of STEM OPT Rule Vacatur for Additional 90 Days

The U.S. District Court for the District of Columbia granted DHS's motion for limited relief from the court's August 12, 2015, order, and ordered that vacatur of the 17-month STEM OPT extension be further stayed from its original deadline of February 12, 2016, until May 10, 2016. In its opinion, the court rejected the plaintiff's argument that it did not have jurisdiction to grant the requested relief. The court also found that, in light of the "unexpected and unprecedented" 50,500 public comments received in response to DHS's October 19, 2015, Notice of Proposed Rulemaking, "extraordinary circumstances" existed that warranted modifying the court's previous order pursuant to Federal Rule of Civil Procedure 60(b)(6).

New Law Increases H-1B and L-1 Petition Fees

The Consolidated Appropriations Act, 2016 (Public Law 114-113), signed into law by President Obama on December 18, 2015, increases fees for certain H-1B and L-1 petitioners. These petitioners must submit an additional fee of $4,000 for certain H-1B petitions and $4,500 for certain L-1A and L-1B petitions postmarked on or after December 18, 2015.

The additional fees apply to petitioners who employ 50 or more employees in the United States, with more than 50 percent of those employees in H-1B or L (including L-1A and L-1B) nonimmigrant status. These petitioners must submit the additional fees with an H-1B or L-1 petition filed:

  • Initially to grant status to a nonimmigrant described in subparagraph (H)(i)(b) or (L) of section 101(a)(15) of the Immigration and Nationality Act; or
  • To obtain authorization for a nonimmigrant in such status to change employers.

This fee is in addition to the base processing fee, Fraud Prevention and Detection Fee, American Competitiveness and Workforce Improvement Act of 1998 fee (when required), as well as the premium processing fee, if applicable. Public Law 114-113 fees will remain effective through September 30, 2025.

USCIS is in the process of revising Form I-129, Petition for a Nonimmigrant Worker and Form I-129S, Nonimmigrant Petition Based on Blanket L Petition to reflect the provisions of Public Law 114-113. Petitioners should continue to complete Item Numbers 1.d. and 1.d.1 of Section 1 of the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement (Page 19 of Form I-129) and Item Numbers 4.a. and 4.b. of the L Classification Supplement (Page 22 of Form I-129).

USCIS may begin rejecting petitions received on or after Feb. 11, 2016 that do not complete Item Numbers 1.d. and 1.d.1 of Section 1 of the H-1B and H-1B1 Data Collection and Filing Fee Exemption Supplement and Item Numbers 4.a. and 4.b. of the L Classification Supplement, or include the additional Public Law 114-113 fee, if applicable. During the 30 day period immediately following this web alert, USCIS may issue a Request for Evidence (RFE) to determine whether the additional fee applies to the petition. To avoid an RFE, petitioners should complete the questions on the Form I-129 noted in the paragraph above and submit the applicable fee when required. Because an RFE will be issued for the fee, rather than a rejection for the omission of the fee, USCIS will maintain the original filing date as the receipt date. Petitioners should wait to respond to the RFE before sending in the additional fee or an explanation of why the new fee does not apply.

If you previously submitted a petition with the additional fee and believe the fee was not required, please contact the National Customer Service Center at 800-375-5283 (TDD for the deaf and hard of hearing: 800-767-1833).

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