H-1B Premium Processing is back

USCIS announced on October 3, 2017 it will resume accepting Premium Processing requests for all H-1B petitions. Premium Processing is an optional service available for certain non-immigrant and immigrant visa categories that guarantees initial adjudication of a petition within 15 calendar days for an additional $1,225 fee. In April 2017, USCIS suspended Premium Processing for all H-1B petitions, citing major delays in regular processing times and the agency's desire to catch up on backlogs of H-1B petitions. The suspension has had a significant impact on employers seeking change of status requests for foreign national employees and for foreign nationals needing approval notices in order to apply for new visas when returning to the U.S. after temporary travel abroad.

As the impact of the suspension acutely impacted hospitals, colleges, universities, and affiliated non-profits, USCIS resumed Premium Processing for medical doctors under the Conrad 30 Waiver Program in late June and for cap-exempt institutions such as colleges, universities, affiliated non-profits, and non-profit research organizations in late July. On September 18, 2017 USCIS announced it would accept Premium Processing upgrade requests for H-1B petitions filed the first week of April for the FY2018 cap. According to the agency's press release dated October 3, 2017, "Premium processing is now available for all types of H-1B petitions," so now all employers may take advantage of Premium Processing if needed. If you have a question about Premium Processing requests or upgrades, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

USCIS to resume H-1B Premium Processing for certain cap-exempt petitions

On July 24, 2017, U.S. Citizenship and Immigration Services ("USCIS") announced it will resume premium processing for certain cap-exempt H-1B petitions effective immediately. Premium Processing Service is offered by USCIS for certain types of petitions, allowing employers or foreign nationals the option to pay an additional $1225 for an adjudication on the petition within 15 calendar days of filing.  USCIS suspended this service in April, citing the need to address current workloads for cases filed via regular processing and clear backlogs.

The H-1B visa has an annual cap of 65,000 visas each fiscal year. Additionally, there is an annual "master's cap" of 20,000 petitions filed for beneficiaries with a U.S. master's degree or higher. Certain petitioning employers are exempt from the annual cap, including institutions of higher education and certain nonprofits.  Specifically, USCIS announced - effective immediately -  that Premium Processing Service for H-1B petitions may resume if: 

  • the Petitioner is an institution of higher education; 
  • the Petitioner is a nonprofit related to or affiliated with an institution of higher education; 
  • the Petitioner is a nonprofit research or governmental research organization; or,
  • if the Beneficiary of the H-1B petition will be employed at a qualifying cap-exempt institution, organization or entity.

USCIS had previously announced that premium processing had resumed for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program as well as interested government agency waivers.  In this most recent announcement, USCIS indicated it will resume premium processing of other H-1B petitions as workloads permit and to watch for further announcements.

New trend in H-1B requests for evidence: Level 1 wages

Many attorneys who are members of the American Immigration Lawyers Association ("AILA") are reporting a significant increase in Requests for Evidence ("RFEs") related wage issues in H-1B petitions. USCIS Vermont and California Service Centers recently began issuing a large number of RFEs where the agency is questioning whether an H-1B position qualifies as a specialty occupation because it is entry level, or questioning whether the Level 1 prevailing wage is too low for the offered H-1B position, based upon the duties described in the H-1B petition.

H-1B occupations are those that meet one of four basic criteria to be considered a specialty occupation: 

  1. a Bachelor's or higher degree or its equivalent is normally the minimum entry requirement for the position; 
  2. the degree requirement for the job is common to the industry or the job is so complex or unique that it can be performed only by an individual with a degree; 
  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.

According to the U.S. Department of Labor ("DOL")'s prevailing wage policy guidance from 2009, a Level 1 (so called "entry-level" wage) is appropriate when a position requires a basic understanding of the occupation where an employee performs routine tasks that require limited, if any, exercise in judgment, working under close supervision. Attorneys report the RFEs they are receiving from USCIS quote this language from DOL and then state the positions described in the H-1B petitions are more complex than roles that would be assigned Level 1 wages, and therefore states employers have not sufficiently established the H-1B petitions are supported by certified Labor Condition Applications ("LCAs") that corresponds to the petitions.

Many employers file H-1B petitions for entry-level petitions and appropriately select Level 1 wages where the minimum requirement is a bachelor's degree or higher. For example, doctors, lawyers, engineers, architects and software developers, even at the beginning of their careers, must still possess a bachelor's degree, master's degree, or other professional degree as a minimum to do their job. Even the DOL worksheet included in the 2009 wage guidance indicates that if an occupation requires a bachelor's degree and up to two years of experience (for a Job Zone 4 occupation), it would appropriately be assigned a Level 1 wage.  Accordingly, employers and their immigration counsel should work to respond to these RFEs, consider citing DOL's own guidance, referencing typical O*Net taks work activities, knowledge, and Job Zone examples for the selected occupation and why that position is still clearly in Level 1 for wage purposes, while ensuring that the response still incorporates why the position qualifies as a specialty occupation.

We believe this increase in RFEs may be related to the USCIS policy memorandum, issued on March 31, 2017, that rescinded a prior USCIS memo that had acknowledged computer programmer positions are specialty occupations for H-1B purposes, and keeping in line with the current administration's "Buy American Hire American" agenda. It should be noted, however, that the March 31 policy memo was specific to entry level computer programmer positions and not a broader Level 1 wage policy for H-1B visas.  Indeed, there is nothing in the Immigration and Nationality Act or in implementing regulations that states a Level 1 wage is ineligible for H-1B petition approval.

If your company has received one of these Level 1 RFEs and need to devise a strategy for response, you can contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com to see if they may be able to assist.  Please keep in mind that USCIS provides a firm deadline for RFE responses and failure to respond in a timely manner may result in denial of the petition and the foreign national losing work authorization in the U.S. 

USCIS announces H-1B cap reached for 5th year in a row but sharp decline signals possible frustrations with the H-1B program

U.S. Citizenship and Immigration Services ("USCIS") announced on April ­7, 2017 that it had reached the H-1B cap for fiscal year 2018 ("FY2018"). The congressionally mandated cap is set at 65,000 H-1B visas plus an additional 20,000 H-1B visas available to foreign nationals with a U.S. Master's degree or other advanced degree obtained in the U.S.  

As a result of reaching the annual cap within the first five business days of April, USCIS ran a computed-generated lottery system. Per its usual procedure, USCIS first ran the U.S. Master's cap; those not selected in the first run were then placed in the regular H-1B cap for the second random lottery. USCIS then announced on May 3, 2017 that it had completed data entry for all FY2018 H-1B petitions. This means employers and attorneys can expect to see the agency cash filing fee checks and send receipt notices for petitions that were selected in the lottery. Once all the receipt notices are issued, USCIS will begin the process of returning petitions not selected in the lottery (including the uncashed filing fee checks). In its most recent announcement, USCIS indicated it is unable to provide a definite time frame for returning those petitions but typically employers can expect them to be returned in late May or early June. 

The total number of H-1B petitions received for FY2018 was 199,000 which is down 15% from the previous two years.  By comparison, USCIS has over the past five years received 124,000 in FY2014, 172,500 in FY2015, 233,000 in FY2016 and 236,000 in FY2017.  It is difficult to state with certainty why the decline occurred this year. Are employers frustrated with the high cost but low chances? Are foreign students accepting offers of employment abroad or not enrolling in U.S. universities as they did previously because securing work authorization after school is so difficult? Is it because the new STEM extension now allows for up to 2 additional years of OPT work authorization for certain graduates and employers are forcing foreign nationals to utilize this more cost effective yet short-sighted solution?  Or is the U.S. slipping in global competitiveness to more immigration-friendly countries?  The reason remains to be seen but Iandoli Desai & Cronin will be watching closely next year to see if the numbers decline again or if FY2018 was just a fluke. 

For updates on all H-1B related news, visit USCIS's H-1B FY2018 site and look for breaking news on our website's news and updates section.

Not selected in the H-1B lottery? Other work visa options to consider

Employers and foreign nationals disappointed in this year's H-1B lottery results may want to consider other work visa options. A few possibilities that are not subject to annual quotas include:

  • Cap-exempt H-1B visas - available where the beneficiary will be employed at an institution of higher education (even in some cases with a private company who maintains space on a college or university campus), a related or affiliated nonprofit entity, a nonprofit research organization, or a government research organization, or concurrently employed by both a cap-exempt employer and a private, otherwise cap-subject employer;
  • TN  visas - available to nationals of Canada and Mexico;
  • E-3 visas - available to nationals of Australia;
  • H-1B1 visas - available for nationals of Chile and Singapore (are subject to a quota but that quota is rarely met);
  • E visas - E-1 treaty trader and E-2 treaty investor visas are available for nationals of a number of countries (full list here);
  • F-1 student visas - F-1 students with a degree in a STEM field may be eligible under the new STEM OPT rules that permit work authorization for up to 3 years following graduation;
  • J-1 visas - available for interns or trainees in a variety of work categories if sponsored by a qualified J-1 entity, including umbrella sponsorship agencies;
  • L-1 visas - available to managers, executives or those with specialized knowledge who have worked abroad for at least 1 year within the past 3 years for an entity abroad related as a parent, branch, subsidiary, or affiliate of a U.S. entity;
  • O-1 visas - available for persons of extraordinary ability in the sciences, arts, education, business or athletics. 

Please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com to discuss these and other options for your professional employees.

USCIS now accepting H-1B petitions for FY2018

On April 3, 2017, U.S. Citizenship and Immigration Services ("USCIS") began accepting H-1B petitions for Fiscal Year 2018 ("FY2018"). In keeping with the trend of the last several years, USCIS confirmed it expects to receive more than the congressionally mandated cap of 85,000 petitions from employers within the first five business days of April (this year, April 3rd - April 7th). The cap consists of 65,000 H-1B visas available for beneficiaries with at least a bachelor's degree or equivalent and an additional 20,000 H-1B visas for beneficiaries with a U.S. master's degree or higher. After April 7th, the agency will use a computer-generated lottery system to randomly select the 85,000 petitions for adjudication. Last year USCIS received over 236,000 H-1B petitions in the first five business days of April. 

For updates on when USCIS reaches the cap, the lottery, whether there will be a re-start date for premium processing (discussed in further detail below), and other H-1B related news, visit USCIS's H-1B FY2018 site and look for breaking news on our website's news and updates section.

Alternatives to H-1B visa

In light of the increase in demand for H-1B visas over the past several years, employers and foreign nationals should also be aware of other work visa options. A few possibilities that are not subject to annual quotas include:

  • TN visas - available to nationals of Canada and Mexico;
  • E-3 visas - available to nationals of Australia;
  • H-1B1 visas - available for nationals of Chile and Singapore (are subject to a quotabut that quota is rarely met);
  • E visas - E-1 treaty trader and E-2 treaty investor visas are available for nationals of a number of countries (full list here);
  • F-1 student visas - F-1 students with a degree in a STEM field may be eligible under the new STEM OPT rules that permit work authorization for up to 3 years following graduation;
  • J-1 visas - available for interns or trainees in a variety of work categories if sponsored by a qualified J-1 entity, including umbrella sponsorship agencies;
  • L-1 visas - available to managers, executives or those with specialized knowledge who have worked abroad for at least 1 year within the past 3 years for a company abroad related as a parent, branch, subsidiary, or affiliate of a U.S. company;
  • O-1 visas - available for persons of extraordinary ability in the sciences, arts, education, business or athletics. 

In addition, employers and foreign nationals may want to consider cap-exempt H-1B visas, which are available if the beneficiary will be employed at an institution of higher education or affiliated non-profit, or concurrently employed by a cap-exempt employer and a private employer. Some universities are assisting in this process by opening up incubator space on-campus, allowing cap-subject employers to station their employees at colleges and universities. This model is known as Global Entrepreneur In Residence ("GEIR") programs, and has become very valuable in the past several years due to the limited number of H-1B visas and the high demand for them. For more information about any of these visa categories or GEIR options, please contact us at info@iandoli.com.   

Reminder: USCIS has temporarily suspended Premium Processing for all H-1B petitions

As noted in one of our previous updates, USCIS announced that it will temporarily suspend premium processing for all H-1B petitions effective April 3, 2017. Premium Processing is an optional service for certain nonimmigrant and immigrant visa petitions that guarantees initial adjudication of a petition within 15 calendar days for an additional fee of $1,225. As regular processing times for H-1B petitions have increased significantly over the past 18 months -- from 2-4 months to upwards of 9-12 months -- many petitioners have used Premium Processing to facilitate quicker start dates for H-1B employees and for obtaining approval notices they may need for international travel. USCIS has not announced a firm end date for the premium processing suspension but did indicate it could last for up to 6 months. This suspension has a major impact not only on the annual H-1B cap-subject lottery but also for hiring plans for cap-exempt institutions like universities and teaching hospitals, many of which have summer/fall start dates for foreign national employees.

As a reminder, USCIS accepts expedite requests on a case-by-case basis if a foreign national or an employer can demonstrate that one or more of the expedite criteria has been met. USCIS lists the following as criteria they will consider for reviewing expedite requests: severe financial loss to company or person; emergency situation; humanitarian reasons; nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; Department of Defense or national interest situation (note these requests must come from an official U.S. government entity and state the delay will be detrimental to the government); USCIS error; or compelling interest of USCIS. If you have a question about the premium processing suspension or need assistance with assessing an expedite request, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

USCIS will temporarily suspend Premium Processing for all H-1B Petitions

Last Friday U.S. Citizenship and Immigration Services ("USCIS") announced that it will temporarily suspend premium processing for all H-1B petitions starting April 3, 2017. Premium Processing is an optional service for certain nonimmigrant and immigrant visa petitions that guarantees initial adjudication of a petition within 15 calendar days for an additional fee of $1,225. As regular processing times have increased significantly over the past 18 months from 2-4 months to upwards of 9-12 months, many petitioners are paying to have their cases premium processed to facilitate quicker start dates and international travel. USCIS provided no end date but said this suspension could last up to 6 months thus having a major impact not only on the upcoming annual H-1B cap-subject lottery but also for hiring plans for cap-exempt institutions like universities and teaching hospitals, many of which have summer/fall start dates that are now in jeopardy. 

This is not the first time USCIS has suspended Premium Processing service. On May 26, 2015, USCIS temporarily suspended premium processing for extension of stay H-1B petitions. This was in response to the high volume of cases USCIS anticipated receiving due to new regulations allowing certain H-4 dependents to qualify for employment authorization. The suspension lasted two months until July 13, 2015.  

The following are examples of how the suspension of Premium Processing will impact foreign nationals and their employers over the coming months: 

  • H-1B Fiscal Year 2018 cap-subject petitions for both the regular cap and U.S. Master's Cap: The suspension will limit if/when foreign nationals can travel abroad during cap-gap, as an F-1 student seeking readmission to the U.S. during this period would need USCIS to have approved the H-1B petition and request for change of status.  
  • Cap-exempt H-1B petitions: The suspension will affect when H-1B foreign nationals may start working at cap-exempt employers such as universities, teaching hospitals. and non-profit research institutions, and may even impact hiring decisions if the candidate is not eligible to start working for several months while awaiting approval of the H-1B petition. This will impact employers seeking to file both change of status and consular processed H-1B petitions.
  • H-1B change of employer petitions: H-1B employees will still be able to "port" or change employers based on the new employer's petition being physically received by USCIS; however, their international travel may be affected once they are beyond the date of employment authorized on their prior H-1B approval notice until the new change of employer petition has been approved.
  • H-1B extension petitions: H-1B extension petitions can be filed up to 6 months in advance of a foreign national's expiration. If timely filed, a foreign national's status and work authorization is automatically extended for up to 240 days beyond the expiration date. USCIS has stated they are prioritizing these petitions to ensure adjudication before the 240 days expire. However, foreign nationals will not be able re-enter after traveling abroad once the date on their current H-1B approval notice has passed until their H-1B extension has been approved. 

USCIS has noted they will consider expedited processing requests on a case-by-case basis if the beneficiary/petitioner meets at least one of the notoriously difficult expedited processing criterion which include: severe financial loss to company or person, emergency situation, humanitarian reasons, nonprofit organization whose request is in furtherance of the cultural and social interests of the U.S., Department of Defense or national interest situation, USCIS error, or compelling interest of USCIS.

Please contact Iandoli Desai & Cronin P.C. at info@iandoli.com if you or your organization has any questions regarding timing or if you need assistance in preparing petitions this month.

Lengthy waits for visa appointment times in India continue

In July our newsletter included a warning about lengthy wait times for visas in India in several visa categories, including H-1B and L-1. The delays for visa appointments in India continue with the current wait times listed on the DOS website as:

- 105 days in Chennai (up from 82 days in July)
- 120 days in Kolkata (up from 96 days in July)
- 93 days in Mumbai (up from 67 days in July); and,
- 112 days in New Delhi (up from 90 days in July).

Only one Indian consulate has addressed these substantial backlogs for appointments.  Wait times are down to 2 days in Hyderabad (it was 118 days in July). To check the most recent postings for visa wait times, please visit the U.S. Department of State's website. Always remember to plan your visa stamping well in advance of any international travel, and whenever possible take advantage of the interview waiver system available at some consulates abroad for renewing your visa.