As of April 1st, the Trump Non-immigrant Visa ban which applied to certain new visas including H and L categories was allowed to expire. If you were subject to the ban you may now seek a visa. If you were denied a visa due to the ban, you may now apply again, paying the fee again. If you applied but, were placed in administrative processing, you should reach out to your HNM attorney to discuss whether or not it is appropriate to wait for a decision or to re-file. The DOS has updated its information on the resumption of Consular activities.
Category: Visas – H-1b, L-1, E, O, TN
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H-1b Cap Reached
The USCIS has announced today that the H-1b cap has been reached, the lottery conducted and the status of all registrations selected updated to show who was selected. The USCIS has not released the total number of registrations received but, anecdotally, it is being reported that less than 30% were selected indicating that the number of submissions was at least 250,000. Many practitioners, including myself, expected fewer filings than last year due to economic and COVID19 related concerns but, that does not appear to have been the case. It is expected that there will be a 2nd lottery held after the 90 day window expires and the USCIS knows how many registrations were selected for whom there was no filing made. If you were not chosen in the lottery, reach out to your HNM attorney who can discuss with you options that may be available.
Filings can begin on April 1st and there is a 90 day window for submissions. As of now, premium processing remains available for H-1b cap filings but, it is anticipated that it may be suspended at any time. We will update you as developments occur.
Last week, the USCIS announced that it would entertain Motions to Re-open/reconsider (MTR’s) on denials of H-1b petitions that were based on one of three memos that have since been rescinded either by Federal Court order or by USCIS action. The relevant memos are: computer programmer memo from 3-31-2017; the employer-employee relationship memo dated 1-8-2010 (commonly referred to as the Neufeld memo); and, the contracts memo dated 2-22-2018. Although there are many denials based upon one of theses three memos, it is likely that this action will provide limited relief as a practical matter. Most denials resulted in new filings or the beneficiary moved onto another opportunity or left the U.S. and the opportunity as presented in the petition is unlikely to remain. The most common scenario that may warrant re-visiting is for US grads who may still be on some form of student employment i.e. STEM OPT or CPT and have a denial from a prior cap lottery filing. In spite of the limited applicability, we applaud the efforts of the Biden Administration to offer the opportunity to correct an error based upon the faulty and/or illegal policies enacted by both the Trump and Obama Administrations. If you have any cases that you think may warrant review, please reach out to your HNM attorney for assessment.
The USCIS has recognized the difficulties that students are having as a result of delays in the issuance of I-765 receipts, the processing of 765 applications and the actual production of EAD cards so they have provided some relief. The steps taken by the USCIS will allow students to take full advantage of the 12 mo. period of OPT employment as opposed to being issued a shortened period due to processing delays. They also provided some refiling options following a lockbox rejection and other measures. You can review the new policy here.
The USCIS has announced that E3 petitions are now eligible for premium processing. This is welcome news given the current travel issues as a result of COVID-19, requiring many E3 petitions to be processed by the USCIS rather than by US Consulates in Australia or Canada. The processing time for E3 petitions had soared to over a year, in many cases. The filing fee for premium processing is $2500.00. The USCIS is in an enviable position wherein they were able to create demand by providing poor service and then charge a large additional fee to complete their task.
The USCIS has announced a free webinar to be held on Feb 24th for anyone interested in learning more about the H-1b cap lottery and the registration process. More info and a link to register can be found here.
Most of you may be painfully aware that the processing of H-4 extensions and H-4 EAD renewals has soared since the introduction of biometrics appointments in March of 2019. They are no longer being processed in days but, in years. Allegations have been raised charging that the delays are intentional and designed to thwart the ability of H-4 holders to work as part of the Trump Administration’s stated goal to eliminate the H-4 EAD rule. A summary of these charges was recently published in Forbes. A Federal Court is being asked to consider these claims in Gona vs. USCIS, filed on Feb 6, 2021. A copy of the memorandum filed in support of a preliminary injunction can be found here. A Federal Court in Texas denied similar claims in late January in the Kolluri case. In the interim, we can only hope that the Biden Administration will implement internal changes so that the process is once again timely and efficient.
The USCIS issued an email on Fri. to certain stakeholders which stated that they will begin to accept H-1b cap registrations for FY2022 H-1b cases on March 9th beginning at 12 eastern. The window for submitting registrations will end at noon eastern on March 25th. Notification to all “winners” will be given by March 31st. Filings may then commence. The registration fee will remain $10 and the information needed to register a potential applicant is also expected to be the same. We expect more information to be released this coming week and will update this and provide a live link when available. If you have the password to your organization’s myUSCIS online account, I suggest you check it to make sure it still works and if not, to immediately request a new password. After all of the changes proposed, it appeasers that this year’s lottery will work exactly like last year’s !
The USCIS has announced that the proposal to select H-1b lottery winners by wage level has been delayed until the end of this year to give the Administration time to review and assess the policy change. For this year’s H-1b cap lottery, FY 2022, the selection will remain random.
There were 3 new regulations announced by the Trump Administration prior to their demise. They included:
1. A change to the way the H-1b lottery was conducted to emphasize level of pay
2. A change to the DOL methodology for setting prevailing wages using the OES
3. A change to the definition of employer-employee
Last week, the Biden Administration issued a regulatory freeze, commonly done when a new Administration takes over so they can review what is commonly referred to as midnight regulations. Relative to the 3 regulations referenced above, this freeze means that the change to the employer-employee definition is dead. The DOL has already withdrawn its interpretive memo which was to accompany the new USCIS rule. (see our blog post from 1-22-2021) As for the change to the DOL methodology in setting OES wages, the freeze means a 60 day review and possible changes or a complete withdrawal. Please note that the new wages were not to take effect until July 1, 2021 so regardless of what happens, the upcoming H-1b cap lottery season should not be impacted. There also remains pending Federal litigation on this rule. The future of the 1st announced regulation favoring Level 4 wages in the lottery selection and the all but guarantee that Level 1 registrations would not be selected, it is not clear what the White House may do. As part of the proposed comprehensive immigration bill which was sent to Congress last week, the White House released a Fact Sheet that outlined the broad principles of the Biden Bill and they state a desire to promote “higher wages for non-immigrant, high-skilled visas” This may be an indication that they support a change to the H-1b lottery selection process. We expect to have more definitive information as the H-1b lottery draws closer.