Posts Tagged ‘H-1B’

Employers with a Pending I-129 Extension/Change May Submit a Service Request after Seven Months

Friday, June 24th, 2016

Form I-129 is frequently used by employers because it covers several very popular employment-based visa categories, such as H, L, O, P, E, TN, and R. These submissions are handled primarily by USCIS’s California and Vermont service centers. Increasing backlogs and extended processing times have delayed adjudication and can frustrate employers, but the risk can be even greater to a beneficiary who has been working for months if the I-129 is ultimately denied.

For H-1B extensions and amendments sent to the California Service Center, the current processing time is eight months, according to the USCIS website, but other visa categories are being processed between two and five months. The Vermont Service Center (VSC) is taking even longer for H-1B extensions and amendments, and is experiencing processing delays for L visa petitions as well.  Even O and P petitions sent to the VSC are taking six months, which is longer than usual. This is particularly problematic because the beneficiary’s work authorization is automatically extended for 240 additional days when an extension or amendment filed. When adjudication exceeds eight months, it leaves the beneficiary unable to work legally.

Unfortunately, employers cannot pick and choose which service center to submit their I-129 petitions, as they are bound by geographic location. But, for those with a pending H-1B extension or amendment request, they no longer have to wait until their petition has exceeded the posted processing times to submit a service request.  Now, employers (or their attorneys) are now able to reach out to USCIS after 210 days (seven months) have passed since filing, which flags the delayed H-1B petition between one and three months earlier than current processing times. Hopefully, this new policy will help the USCIS service centers to identify pending cases that are nearing the expected deadline and to prioritize these cases so they can be adjudicated within the posted processing times — and, more importantly, before the extended grant of work authorization expires.

H-1B Cap Reached; 172,500 Petitions Received by USCIS

Monday, April 28th, 2014

USCIS announced that it received approximately 172,500 H-1B petitions for professional workers during the FY2015 filing period and that it completed the computer-generated random selection process (commonly known as a “lottery”) on 4/10/14 to meet the 65,000 general-category cap and the 20,000 cap under the advanced-degree exemption. Last year, 124,000 H-1B petitions were received by USCIS. This is the second year in a row since the economic downturn in 2008 that the H-1B cap has been met on the first day of filing.  Clearly, there is serious flaw in the laws governing H-1B visas, which, instead of responding to market and business needs, are fixed by a cap set more than 20 years ago.

USCIS announced that H-1B petitioners will be notified by regular U.S. regular mail whether their petitions have been selected for adjudication. Premium-processed cases can expect to obtain e-mail notification of acceptance, and many petitioners already have received such e-mails, although the adjudication of premium-processed H-1B cap cases will not begin until April 28, 2014.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap.  These include petitions for physicians with certain J waivers; petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations; and those petitions filed on behalf of H-1B workers who previously have been counted against the cap.

H-1B Professional Visas – Preparation Begins for April Filings

Monday, March 3rd, 2014

Once again it is H-1B filing season, and, once again USCIS is likely to receive the full allocation of visa petitions in the first week of filing commencing April 1.  Once the quota is reached, new H-1B visa requests will not be accepted until April 1, 2015, for work that commences on October 1, 2015 — more than 18 months from now!

Visas for professional specialty workers (H-1Bs) are, as they have been, capped at 65,000 per fiscal year. Another 20,000 visas are available to workers with advanced degrees (master’s or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 visas are set aside for nationals of Chile and Singapore under special rules.

While some H-1B petitions can be filed at any time because they are exempt from the numerical cap, the vast majority of H-1B applicants in business are subject to the cap.  Thus, employers should immediately identify first-time H-1B employees and begin preparing necessary petitions for the April 1 filing date. Employers and their employees should take time now to collect academic and work-experience documentation; secure translations and educational evaluations, where appropriate; organize wage and compensation data; and prepare detailed job descriptions.

Finally, now is also a good time for employers to review their company’s H-1B public access files to ensure that files are complete and in full compliance, as well as to determine that valid employer-employee relationships have been maintained.

Update on H-1B Processing

Friday, December 28th, 2012

The adjudication of H-1B cases filed since April 2012 has been woefully delayed and USCIS has provided little guidance on when these backlogs will be cleared. The H-1B cap was reach on June 11, 2012 for work commencing October, 1, 2012, but as late as mid-September more than 15,000 cases remained “untouched” by USCIS. While USCIS has finally completed its initial review of new cap-subject H-1B cases, it is still reviewing those cases that are pending due to requests for evidence (RFEs) and notices of intent to deny (NOIDs). What is perhaps more troubling is that H-1B extension and change of status cases also are experiencing severe delays, despite a stated agency goal of adjudicating all H-1B cases within two months. These delays, however, cause significant burdens on employers and their employees in a whole host of ways. For example, employees who are still waiting for their approvals may not be able to travel internationally even if in connection with their employment, which in turn can translate into delayed projects, defaults on contracts, or reassignments of work, all of which undermines employer competitiveness and profitability.

Before you know it, it will be H-1B cap-subject filing season again.  USCIS must do better.

Guidance for Certain Foreign Students (F-1) Now Applying for H-1Bs

Friday, May 4th, 2012

Now that the filing period for new H-1B specialty occupation visas for work commencing October 1, 2012 has begun, we provide below a general overview of the special rules that apply to certain F-1 foreign students who are applying for H-1Bs.

Under the immigration regulations, certain students with pending or approved H-1B petitions are permitted to remain in the United States in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire.  Under these special rules, the student’s F-1 status is extended and he or she can remain in the United States until the start date of the new, approved H-1B employment period. This special extension is called the “cap-gap” extension because it fills the “gap” between the normal end of F-1 status and the beginning of H-1B status. The gap often occurs because most students graduate or complete their post-completion Optional Practical Training (OPT) in May or June and H-1B visas, normally exhausted months earlier, are not available again until October 1.

To be eligible for the cap-gap extension, an F-1 student must have an H-1B petition filed on his or her behalf and that petition must be filed while the student’s authorized F-1 admission is still in effect. In other words, the petition must be timely filed during the academic course of study, the authorized period of post-completion OPT, or during the 60-day grace period. Once a timely filed request to change status to H-1B on October 1 has been made, the automatic cap-gap extension begins and continues until the H-1B petition adjudication process has been completed.

If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 (of that year). If, however, USCIS denies, rejects, or revokes the H-1B petition, the automatic cap-gap extension of status expires, and the student is granted (from the date of the notification of the denial, rejection, or revocation of the petition) the standard 60-day grace period before he or she is required to depart the United States. In some instances, however, where there has been a denial, the student is required to leave the United States immediately.

Other rules apply to F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees as well as instances where the F-1 student is terminated or laid off during the pendency of their H-1B petition.

The rules regarding work authorization and status for cap-gap foreign students are complicated and very specific. For example, an F-1 student who is already in his or her 60-day grace period when the H-1B petition is filed is unable to receive employment authorization even though F-1 status is automatically extended.  Also, students whose status is governed by the cap-gap extension cannot re-enter the United States in F-1 status during this period if they elect to travel. Instead, they are required to apply for an H-1B visa at a consular post abroad prior to returning. And, the earliest they can re-enter the U.S. is ten days prior to October 1.

Student are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the petition processing, with their Designated School Official (DSO) to ensure their status is properly extended on their Form I-20, and with their immigration attorney.

News in Brief

Friday, April 13th, 2012

H-1B Visa Count as of April 9: As of April 9, USCIS received 17,400 H-1B petitions counted toward the annual 65,000 cap and approximately 8,200 petitions toward the 20,000 cap exemption for those with advanced degrees.

Oral Arguments in Arizona Immigration Law on April 25:  On April 25, the Supreme Court will hear arguments on the legality of the Arizona immigration law, SB 1070.  The case involves a range of important questions regarding the role that states may play in the enforcement of federal immigration law.

Updated List of Countries with Limited or No Visa Services: U.S. embassies and consulates are sometimes forced to limit or, at times, suspend visa services because of natural disasters, civil unrest, war, and/or security concerns, among other reasons. The Department of State recently released an updated list of those countries with limited or no visa services. The list also provides information on where affected applicants can go to obtain visa services. See

Certain Employment-Based Visas (EB-2) Retrogress in May for Chinese and Indian Nationals: The visa priority date cut-off for May for highly skilled professional workers (EB-2 masters-level immigrants) from China and India will retrogress to August 15, 2007. The current cut-off date is May 1, 2010, which reflected a dramatic improvement from last year at this time. DOS cautions that it is impossible to speculate if the cut-off date will change before the next allocation of visas, effective October 1, 2012.

Global Entry Program Now at 24 Airports: Twenty-four airports now participate in the Global Entry program, a voluntary program that allows for the expedited clearance of pre-approved, low-risk travelers arriving in the United States. According to U.S. Customs and Border Patrol (CBP), the inspection and admission process takes only one minute at Global Entry kiosks. Travelers who wish to participate must apply via the CBP Global Entry website, or through the Global On-Line Enrollment System (GOES) website, Applications must be completed and submitted electronically.

DOJ Resource Page for Extension of Work Authorization for TPS or DED Beneficiaries: The Department of Justice now maintains a resource page containing the particularities of work authorization extensions for TPS (temporary protected status) or DED (deferred enforced departure) beneficiaries from nine countries: Haiti, Honduras, Nicaragua, El Salvador, Liberia, Somalia, Sudan and South Sudan and the Syrian Arab Republic (Syria). See

H-1B Professional Visa Cap Reached

Thursday, December 1st, 2011

On November 23, USCIS announced that it had received a sufficient number of cap-subject H-1B temporary professional visa petitions for employment commencing during the current fiscal year (October 1, 2011 to September 30, 2012). Cap-subject employers seeking to employ new professional workers now must wait until April 1, 2012 to file new petitions for employment commencing October 1, 2012.

H-1B visa petitions are filed by U.S. employers seeking to hire foreign nationals in specialty occupations involving the theoretical and practical application of a body of “specialized knowledge” (such as the sciences, medicine and health care, education, biotechnology). The minimum requirement for the foreign national is a bachelor’s degree or the equivalent work experience (or a combination of education and work experience).

Under the immigration laws, visas for professional specialty workers are capped at 65,000 per fiscal year. Another 20,000 visas are available to workers with advanced degrees (master’s or higher) obtained at U.S. institutions of higher education. Of the total 85,000 H-1B visas available, some 6,800 “H-1B1” visas are set aside each year for nationals of Chile and Singapore (a maximum of 1,400 for Chile and 5,400 for Singapore).

While the vast majority of H-1B applicants in business are subject to the cap, some H-1B petitions can still be filed because they are exempt from the numerical cap. These include petitions for physicians with certain J waivers, as well as petitions filed by institutions of higher education or related or affiliated nonprofit entities, by nonprofit research organizations, or by governmental research organizations. Also, petitions filed on behalf of current H-1B workers who have previously been counted against the cap are not counted again. This means H-1B petitions for extension of status, change of employment, or concurrent employment may be submitted at any time.

For the third year in a row, H-1Bs remained available for many months after the U.S. government began accepting applications. Prior to the financial crisis that took hold of the U.S. economy and American business, all 85,000 visas had been exhausted the first day of filing, April 1. This year, these visas were exhausted two months earlier than last year, a sign that the economy is, in fact, starting to recover.

Over the last many years, it is clear that the business marketplace has dictated the pace and demand for H-1B specialty workers. In times of economic prosperity and growth, H-1B visa numbers were exhausted immediately; in times of recession, visas numbers remained available much of each fiscal year.  And, before 1990 when the H-1B numerical limitation was enacted for the first time, the needs and demands of U.S. business governed the number of visa petitions filed and granted each year.

With job creation and business expansion key to fueling our economy and America’s competitive edge, when will Congress wake up and change this outdated, quota system?  The status quo keeps out some of the best and brightest skilled workers the world has to offer, and ignores the benefit immigrants bring to our shores. America needs a well-functioning business immigration system, one where immigration-related challenges and obstacles do not prevent or delay companies from launching a new venture, expanding an existing company, winning significant contracts for work, or missing opportunities.  Changing the H-1B visa system would be a meaningful and important first step.

New I-9 Handbook Addresses H-1B Portability and Nonimmigrant Extensions of Status

Friday, March 11th, 2011

USCIS recently issued new guidance for employers on the process of completing Form I-9, or employment eligibility verification, by issuing an updated version of The Handbook for Employers. Some of the most important changes address the issue of “portability,” or transferring an H-1B employee to another employer, and pending extension of status petitions. The Handbook now provides that an employee in valid H-1B status who ports to a new employer can begin to work with the new employer upon filing an H-1B petition with USCIS. Previously, the H-1B employee would have to wait to receive an I-797 receipt notice prior to beginning work with the new employer, which could take weeks or even months to arrive. With respect to extensions, the Handbook provides that an employee with a timely filed extension of status petition — in other words, a petition filed before the employee’s work authorization expires — is eligible for continued work authorization for up to 240 days beyond the expiration date of that authorization, as long as the extension remains pending. The Handbook provides a detailed explanation on how to complete the Form I-9 and the documentation to be attached for individuals in H, E, L, O, and P status.

Employers are encouraged to consult the new Handbook when reviewing their company’s I-9 compliance procedures. All employers must complete Form I-9 for every worker hired after November 6, 1986, and those with multiple foreign-national employees are encouraged to establish formal I-9 audit and compliance plans. A link to download the Handbook can be found at

Senate Votes for Increase in Certain H-1B and L-1 Filing Fees

Friday, August 20th, 2010

On August 5, the Senate passed a $600 million emergency spending bill aimed at improving border security.  In order to fund the legislation, the measure includes provision for significantly higher filing fees on many IT staffing companies as well as other companies with large numbers of foreign workers. Further action is required by the House of Representatives before it can be sent to the President for signature.

Certain H-1B Employers and Their Workers Face New Hurdles and More Reasons to Anticipate DHS Compliance Site Visits

Monday, March 1st, 2010

In a recent guidance memo, U.S. Citizenship and Immigration Services (USCIS) has appreciably altered its definition of what constitutes a valid employer-employee relationship as it relates to H-1B workers and imposes new rules on the types of activities in which H-1B workers can engage. The memo will have a significant impact on certain new H-1B petitions and certain extensions.

Under the new rules, workers who are placed at third-party worksites will no longer qualify for H-1B visas as employees. Nor will independent contractors, such as sales representatives. And, agents as petitioners will not be able to qualify as H-1B employers. The memo also departs from long-standing precedent to conclude that persons with a substantial interest in a petitioning company, in most cases, cannot qualify as a beneficiary of an H-1B visa. This means that co-owners of a business may not be able to obtain an H-1B. The guidance memo also requires that the petitioner establish that the employer-employee relationship exists throughout the requested H-1B validity period.

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