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USCIS To Implement New Regulations for H-1B Cap Lottery

Posted January 31, 2019H-1B

USCIS has posted a final rule changing the H-1B lottery process. Effective in April 2019 (for the 2020 fiscal year), USCIS will reverse the order of the H-1B cap lottery. First, USCIS will draw petitions for the general bachelor's cap, where 65,000 new visas are to be granted. Second, USCIS will draw petition's for the master's cap, where 20,000 additional visas are to be granted to individuals who hold master's or other advanced degrees from US universities.

This change is expected to increase the odds that individuals who hold advanced degrees will be selected in the H-1B lottery. USCIS expects that this change in process may result in a 16% increase in likelihood that an individual with an advanced degree will have a petition selected in the lottery.

USCIS will also implement an H-1B lottery online registration process, but will delay this implementation until 2020. The electronic registration process will require employers to submit an electronic registration for each petition first. The USCIS will then hold the lottery to determine which petitions are selected and invite employers to submit complete H-1B petitions subsequently. Additional details on this program will be released in the future, but USCIS will provide at least 90 days to submit complete petitions after the lottery is completed.

Meltzer Hellrung will continue to process H-1B petitions as it typically has in 2019. We will monitor the proposed changes to the registration, lottery, and submission process, to advise clients on how best to proceed in 2020 and beyond.

For more information on filing H-1B cap petitions please contact your Meltzer Hellrung attorney.

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E-Verify After Government Shutdown

Posted January 28, 2019Articles

During the 35 day federal government shutdown E-Verify was not available to employers. Employers have until February 11th to enter cases for all hires made during the shutdown period.

USCIS instructed that employers use the hire date from the employee's Form I-9 when creating an E-Verify case. If the case creation date is more than three days following the worker's start date, select "Other" from the drop-down list asking for an explanation and enter "E-Verify Not Available" as the reason.

For further information on handling tentative nonconfirmations please see USCIS guidance.

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Premium Processing Service Resumes for H-1B Cap Cases Filed in 2018

Posted January 27, 2019H-1B

USCIS will begin accepting premium processing requests for H-1B cap petitions filed in April 2018 for the fiscal year 2019 cap. USCIS will resume accepting premium processing requests on January 28th.

Premium processing service guarantees that USCIS will review a petition within 15 calendar days of receipt by the USCIS. Premium processing does not guarantee a final decision, as USCIS can issue a request for evidence. Similarly, a premium processing request can be submitted with a response to a request for evidence.

For further information, please contact your Meltzer Hellrung attorney.


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DACA Beneficiaries May be Eligible for an H-1B

Posted January 25, 2019H-1B

Due to the uncertainty of DACA, employers should consider other nonimmigrant options for certain employee Dreamers, in particular sponsorship for H-1B. The Supreme Court appears unlikely to hear the case on Deferred Action for Childhood Arrivals (DACA) this term. On February 15, 2019 the Supreme Court will meet again to decide which cases it will hear in October. Even if the court accepts to hear the case in October, the decision regarding the program will likely not be announced until 2020. However, given the long-term uncertainty surrounding the program we encourage employers to be proactive in considering all options available to DACA employees.  

H-1B status could be available to some DACA beneficiaries (“Dreamers”) if they meet eligibility for the visa. Namely, employees must have earned at least a bachelor’s degree, have a job offer, and have less than 6 months of unlawful presence (since their last entry). In addition, in order to eventually enter the US in H-1B status, DACA beneficiaries must have also entered the country legally, using a tourist visa or advance parole.   

The job offer must require a bachelor’s degree in a particular field and that degree requirement must be common to the job. Most Dreamers who might be eligible for the H-1B must have also had DACA by the time they were 18.5 years old. All Dreamers have unauthorized presence, which is different from unlawful presence. Unlawful presence accrues as soon as the Dreamer turns 18 years old, which is why if they were 18.5 years old or older when they obtained DACA, they are ineligible for an H-1B. Eligible Dreamers must also note that they will not be able to change their status. Dreamers are not eligible to change status because they do not have a status. This means that if the H-1B is approved, the Dreamer will have to consular process and enter the U.S. with his/her H-1B visa. 

All Dreamers should renew their DACA before February 15, 2019. Unfortunately, USCIS is not accepting new applicants for DACA at this time. If you have any questions, please reach out to any of the Meltzer Hellrung attorneys. 

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Planning for the H-1B Cap

Posted January 24, 2019Kristen KellarH-1B

With the annual April H-1B cap right around the corner now is a great time to  start thinking about individuals you’d like to sponsor and opening cases. The H-1B cap officially opens April 1, 2019. For the past few years, the USCIS accepted cap petitions the first five business days of the month, and we anticipate the same this year. Petitions received after will not be eligible to be selected in the H-1B cap lottery. Starting the process early can provide peace of mind as April approaches knowing that the cases are prepared or that if positions or employees change there is time to make adjustments.

Employees you may consider sponsoring for the cap include:

  • Employees in F-1 OPT or CPT status
  • Employees who are currently working abroad
  • Employees in other visa statuses who may be sponsored for a green card
  • Employees working on an H-4 EAD
  • Employees currently on TN status, such as those working under the Economist category.

Due to the nature of the H-1B cap, even if an employee’s current status is valid until 2019 or later, you may want to consider filing an H-1B cap case now so that they have more chances at the cap. This past April, USCIS received 190,000 petitions for 85,000 spots.

It is also important to keep in mind processing timelines for the certified Labor Condition Application (LCA), which is required for all H-1Bs. If your company has not filed an LCA in the past, it must register with the Department of Labor prior to filing an LCA. Typically, it takes a few days for the Department of Labor to verify a company, but verification tends to take longer as April approaches. Once a company is verified with the Department of Labor, the LCA can be filed. LCAs are usually certified in 7 days, but that timeline tends to get longer as well. In the event of any error on the LCA or change to to position it’s vital to have time to correct it and have a new LCA be certified.

For companies that place employees at client sites, starting the H-1B process early can provide more time to ensure that sufficient evidence regarding the client relationship can be obtained. Providing client documents early allows your business immigration attorney ample time to review them and for additional documents to be obtained in the event of incomplete or insufficient evidence. Not having the proper documentation can result in an inability to file the case or a Request for Evidence later.

We encourage you to speak with you Meltzer Hellrung LLC attorney about any individuals you’d like to sponsor or if you have questions about the types of positions that qualify for an H-1B.

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