Tag: H1B visa

USCIS Releases H-1B Lottery Information: Registration Process Begins March 6

U.S. Citizenship and Immigration Services (USCIS) released guidance on the Fiscal Year (FY) 2025 H-1B lottery process. The registration system will be open from noon Eastern, March 6, 2024 until noon Eastern, March 22, 2024. The application fee will remain $10 for each case entered into the system.

This year, USCIS will implement a new “Beneficiary Centric Selection” process that will help to ensure all beneficiaries have an equal chance of selection, regardless of the number of times each beneficiary is registered. Please see “Winning Futures? The H-1B ‘Lottery’ Will Open Soon. USCIS Predicts Success” for more details.

Why is H-1B filing season important?

This is the only time of year (with minor exceptions indicated below) USCIS accepts H-1B specialty worker petitions for the next fiscal year, which begins Oct. 1, 2024. For a petition to qualify in the H-1B category, the job offered must be a specialty occupation in which a bachelor’s degree (or its equivalent) is normally the minimum requirement, and the foreign national employee must hold a bachelor’s degree (or its equivalent) in the specialty defined by the position. In some cases, a bachelor’s-level threshold may be met through a combination of the employee’s education and work experience.

There is an overwhelming demand for the annual allotment of 85,000 new H-1Bs. The number of H-1B approvals requested by employers has reached the annual H-1B cap every year for more than 10 years. Last year, USCIS received 780,884 registrations within the electronic lottery system for 85,000 H-1B slots. If you have an employee that needs a “new” H-1B visa, it is imperative that you take action during the H-1B filing season or you will have to wait a full year for another opportunity.

Electronic registration process in 2024

USCIS will use same the electronic registration system from years past to implement the new beneficiary centric selection process. Employers seeking to file H-1B cap-subject petitions must complete an electronic registration for every case the employer wishes to enter into the H-1B lottery. This year, the employer must enter a valid passport or travel number for each registrant. If selected, the passport or travel number used in the H-1B petition filing must be the same number used at the time of registration. This new approach, focusing on the individual registrant, should increase selection odds.

After the registration period closes, USCIS will conduct a random selection lottery from the registrations. The date of the lottery selection has not been announced but will likely occur on or about April 1, 2024. Employers whose cases are selected will then have at least 90 days to complete and file H-1B petitions with USCIS.

Dinsmore attorneys are available to assist employers in navigating the new application process, including completion of the electronic registration and subsequent preparation and filing of selected petitions. USCIS continues to develop its electronic registration system and is expected to release additional details as the registration period approaches.

Are there certain employees we should consider registering?

Yes, four situations come to mind:

  1. Students who hold F-1 visa status and who are working for your organization under a grant of Curricular Practical Training, Optional Practical Training or STEM Optional Practical Training work permission;
  2. Certain L-1 Intracompany Transferees or TN (USMCA/NAFTA) workers who work for your organization;
  3. Candidates who are not yet working for your organization but whom you have an interest in employing in the near future; and
  4. Dependent spouses who hold H-4 status and who have been authorized to work with an Employment Authorization Document (EAD).

Why F-1 students?

Some F-1 students may qualify for an Optional Practical Training (OPT) work permission that is limited to one year following completion of their degree. Other F-1 students may be eligible for an additional 24 months of STEM OPT work permission. Either way, OPT is time-limited. Furthermore, some additional students may hold Curricular Practical Training (CPT). CPT authorizes employment off campus while the student is still taking classes. These students may be pursuing their first degree in the U.S., or they may have returned to school for an additional degree following exhaustion of their first round of OPT if they were not selected in the H-1B cap lottery. Bottom line: If you have a student working for you on OPT or CPT, it is worth evaluating if they need an H-1B cap registration.

Why L-1 intracompany transferees?

The L-1 intracompany transferee visa category applies to foreign nationals who have been employed abroad in executive, managerial or specialized knowledge capacities for at least one year with a commonly owned foreign company, and who are in the United States working for the same or a related U.S. employer.

L-1 executives or managers (L-1A) may remain in the United States for a maximum of seven years. Specialized knowledge (L-1B) employees may remain for a maximum of five years. There is no possibility of an extension once the seven-or five-year limit has been reached and the time table to complete the permanent residence process continues to climb, especially for Indian foreign nationals.

Why H-4 spouses with employment authorization documents?

H-4 spouses are eligible to apply for an H-4 Employment Authorization Document (EAD) if their spouses in H-1B status have an approved I-140 petition. The H-4 EAD allows the spouse to obtain work authorization and engage in employment in the United States. H-4 spouses working with EADs may wish to have their H-4 statuses changed to H-1B for greater long-term employment security.

Why TN employees?

While TN workers under the U.S. Mexico-Canada Agreement (formerly known as NAFTA) are not limited in employment duration like their L-1 counterparts, pursuing permanent residence while holding TN status can be problematic. Employers may want to change their TN employees to the H-1B category to facilitate permanent residence (green card) sponsorship.

Are there any exemptions from the annual H-1B cap?

Persons already counted under the H-1B cap and who need an extension of stay are not subject to the annual limitation. Similarly, persons who already hold H-1B status and are transferring to a new employer are exempt from the cap. The annual limitation applies only to persons not yet counted against the annual cap. Also, certain types of educational or nonprofit organizations that file H-1B petitions are exempt from the H-1B numerical limitation.

© 2024 Dinsmore & Shohl LLP. All rights reserved.
by: Katie P. Jacob , Jazmin E. Harris of Dinsmore & Shohl LLP
For more news on H-1B Lottery Information, visit the NLR Immigration section.

January 2024 Update: US Department of State Announces Pilot Program for Stateside H-1B Visa Renewals

On January 18, 2024, the Department of State published an online tool that H-1B visa applicants can use to determine if they are eligible for the stateside visa renewal pilot program. Over time, it is likely that the Department of State will expand eligibility. We expect the online tool for the program described below to be updated as the program expands.

Domestic Visa Renewal Eligibility Assessment

In December 2023, the US Department of State announced a pilot program for stateside renewal of certain visas. For the first time in nearly two decades, a limited number of H-1B nonimmigrants will be able to renew their visas from within the United States.

All nonimmigrant visas are currently issued by US Embassy and Consular officials outside of the United States. Beginning on January 29, 2024, the State Department will begin allowing certain nonimmigrants to renew their expired and expiring visas inside the United States. Applicants meeting the requirements of the program may submit an online application between January 29 and April 1, 2024. This is welcome news as visa processing at Consulates and Embassies abroad has become increasingly unpredictable and fraught with delays.

This is a pilot program that will be available on a very limited basis initially. However, the State Department has indicated a desire to expand the program after the pilot allows for the resolution of any operational issues.

This pilot program will allow for limited renewal of nonimmigrant visas in the United States. Eligibility will be limited to applicants who(se):

  1. are renewing H-1B visas (H-4 and other visa classifications are not part of the pilot program);
  2. prior H-1B visa being renewed was issued by either:
  3. Mission Canada (i.e., US Consular posts located in Canada) with an issuance date from January 1, 2020 through April 1, 2023 OR
  4. Mission India (i.e., US Consular posts located in India) with an issuance date of February 1, 2021 through September 30, 2021;
  5. are nationals of countries which are not subject to reciprocity fees for H-1B visas;
  6. are eligible for a waiver of the usual in-person interview requirement;
  7. have submitted ten fingerprints in connection with a previous visa application;
  8. prior H-1B visa does not contain a “clearance received” notation;
  9. does not have an ineligibility basis that requires a waiver prior to visa issuance;
  10. 10.has an approved and valid H-1B petition;
  11. 11.was most recently admitted to the US in H-1B status;
  12. 12.is currently maintaining H-1B status in the US;
  13. 13.period of authorized H-1B admission has not expired; and
  14. 14.intends to reenter the US in H-1B status after temporary travel abroad.

Beginning January 29, 2024, eligible applicants may submit an application online through the State Department website. The State Department will allow approximately 4,000 applications each week, with 2,000 for applicants whose prior H-1B visas were issued by Mission Canada, and another 2,000 for applicants whose prior H-1B visas were issued by Mission India. Once the application limit has been reached, the application portal will be locked until the next allotment of application slots are released based on the schedule. On each Monday in February, the website will reopen for new submissions. The application period for the program will end the earlier of when all available application slots have been filled, or on April 1, 2024.

Applicants will be asked to complete an online application including:

  • a self-assessment of eligibility for the pilot program;
  • a Form DS-160 online visa application;
  • payment of the $205 non-refundable Machine-Readable Visa (MRV) fee; and
  • required documents, including:
    • a properly completed, electronically filed Form DS-160;
    • one photograph meeting Department of State specifications;
    • original passport, valid for at least 6 months beyond the visa application date;
    • original or copy of current Form I-797 Notice of Action (H-1B approval notice);
    • original or copy of the applicant’s Form I-94 (available online here); and
    • fee payment confirmation.

Processing time is expected to be approximately 6 to 8 weeks, with visaed passports returned to applicants via US postal service or courier. All documents must be submitted by April 15, 2024. The State Department aims to complete processing of all applications under this pilot program by the program’s conclusion date of May 1, 2024.

Prior to 2004, the State Department ran a similar program, allowing for H, L, O, I, E, and P visas to be renewed by mail through a State Department office in Washington, DC. Visa revalidation in the US was terminated in July 2004 due to the State Department’s inability to collect biometric data in the US as required by post-9/11 security enhancements.

The return of this program, and the ability of participants to secure a needed visa before departing the United States, will help alleviate the uncertainty associated with foreign travel for those who must secure new visas while abroad in order to return to the United States.

©1994-2024 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.
For more news on Stateside H-1B Visa Renewals, visit the NLR Immigration section.

A Holiday Gift From The State Department: Domestic Visa Revalidation Pilot Program And Visa Interview Waiver Guidance

Kris Kringle bestowed an old friend upon us for the 2023 holiday season, which, if successful, could permanently bring back stateside visa renewal.

Before biometrics were required for U.S. visas, foreign nationals (FN) legally in the U.S. on temporary (nonimmigrant) visas could renew their visa stamps through the Department of State. The process was typically efficient, resulting in a great time and expense saver for both the FN and U.S. employers. Then, biometrics became a requirement in 2002, and the State Department eliminated the program, reasoning that visa applicants’ biometrics were not available in the U.S.

History evolves, new challenges arise, and the State Department finds itself taking steps to resume this old process. The COVID-19 pandemic caused the global closure of U.S. consulates, resulting in an enormous backlog of visa processes. While the State Department has made significant progress in addressing some of these backlogs, the agency continues to struggle with lengthy wait times in many consular jurisdictions, causing considerable difficulty for individuals and businesses.

PILOT PROGRAM DETAILS
The Stateside Visa Revalidation Pilot Program was published in the Federal Register just before the Christmas holiday. However, this pilot holiday gift is limited.

Online applications will begin Jan. 29, 2024. Each week, the State Department will release approximately 2,000 application slots each for individuals whose most recent H-1B visas were issued by Mission Canada and by Mission India (approximately 4,000 combined total each week). The releases will be on Jan. 29; Feb. 5; Feb. 12; Feb. 19; and Feb. 26.

The criteria set out in the program notes:

The foreign national (FN) seeks to renew only an H-1B visa that was previously issued by Mission Canada or Mission India
20,000 renewals will be issued on a staggered schedule
To be eligible, the prior H-1B visa stamp must have been issued by Mission Canada with an issuance date from Jan. 1, 2020, through April 1, 2023, or by Mission India with an issuance date between Feb. 1, 2021, and Sept. 30, 2021
The FN is not subject to the payment of a “reciprocity fee” as part of a nonimmigrant visa issuance fee based on the country of birth
The FN is also eligible for a waiver of the in-person interview requirement based on a recent policy update
The FN submitted 10 fingerprints to the Department of State in connection with a previous visa application
An annotation of “clearance received” was not noted in prior visa stamps; this annotation will disqualify the FN for this program
No visa ineligibility that requires a waiver prior to visa issuance
Possess an approved and unexpired H-1B petition evidenced by an I-797 Notice
Most recently admitted to the United States in H-1B status
Currently maintaining H-1B status in the United States; a person on the 60-day grace period after a lay-off will not qualify
Must be in an unexpired period of authorized admission in H-1B status
Intends to reenter the United States in H-1B status after a temporary period abroad
NEW INTERVIEW WAIVER GUIDANCE
On a separate, but related, note, the State Department also published new Visa Interview Waiver guidance to replace expiring COVID-19 era policies; this guidance goes into effect on Jan. 1, 2024. This guidance applies to those individuals renewing visas abroad at a U.S. Consulate and allows Consular officers to waive interviews in certain instances.

The new interview waiver guidance will also make the following individuals eligible for interview waivers:

First time H-2 visa applicants (temporary agricultural and non-agricultural workers)
Other nonimmigrant visa applicants applying for any nonimmigrant visa classification who:
Were previously issued a nonimmigrant visa in any classification, unless the only prior issued visa was a B visa
Are applying within 48 months of their most recent nonimmigrant visa’s expiration date
This new guidance is indefinite in duration, but the State Department has indicated it will review this waiver guidance annually. This authority expands access to interview waiver eligibility, while also instituting some new restrictions from the 2023 authority. All nonimmigrant categories are considered under this authority. They can be mixed and matched and still be eligible for a waiver of interview, but are no longer eligible if their only prior visa issuance was a B visa. Overall, the population of people who are eligible for the in-person interview waiver will expand.

© 2023 BARNES & THORNBURG LLP

by: Tejas Shah , M. Mercedes Badia-Tavas of Barnes & Thornburg LLP

For more news on Domestic Visa Revalidation, visit the NLR Immigration section.

H-1B Proposal Modernizes H-1B Requirements and Oversight, Provides Limited Flexibility for F-1 Student Visa Program

The White House Office of Management and Budget (OMB) has reviewed and approved a Department of Homeland Security (DHS) proposal to bring oversight of the H-1B visa program to the modern era. This proposal also creates flexibility in the F-1 student visa program for students who are the beneficiaries of timely filed H-1B cap-subject petitions.

Based upon the information published by the Department of Homeland Security, the proposed rule will:

  • Revise the regulations relating to the “employer-employee relationship”
  • Provide flexibility for start-up entrepreneurs
  • Implement new requirements and guidelines for site visits, including those conducted in connection with petitions filed by H-1B dependent employers whose basic business information cannot be validated through commercially available data
  • Provide limited flexibility on the employment start date listed on the petition
  • Address “cap-gap” concerns
  • Bolster the H-1B registration process to reduce the possibility of misuse and fraud in the H-1B registration system
  • Clarify the requirement that an amended or new petition must be filed where there are material changes, including the streamlining notification requirements related to certain worksite changes

Written public comments must be submitted by Dec. 22, 2023, online at regulations.gov. The proposal, particularly the component aimed at reducing fraud and misuse in the H-1B registration system, is expected to be welcomed by H-1B petitioners and employee beneficiaries who have faced extreme challenges in the lottery in recent years.

Following DHS precedent, the proposed rule is expected to have a delayed effective date should it proceed.

With the fiscal year 2025 H-1B registration season fast approaching, employers and potential H-1B registrants should consider this new proposed rule when solidifying plans for the upcoming registration period.

This article was co-authored by Tieranny Cutler.

© 2023 BARNES & THORNBURG LLP
By Sarah J. Hawk of Barnes & Thornburg LLP
For more news on H-1B Oversight Proposal, visit the NLR Immigration section.