Labor Immigration Law

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H-1B Articles

H-1B Amendment Required When Changing Jobsites – Regulatory Updates and New Compliance Guidelines

A recent Administrative Appeals Office (AAO) decision which highlighted the requirement for an H-1B amendment any time there is a change in the job site requiring a new Labor Condition Application (LCA) has created a lot of conversation in some H-1B circles and our office has been handling many inquiries, concerns and reactions to the requirements imposed by the AAO decision.        This article and the resources our office will be providing over the next weeks are aimed at clarifying the H-1B amendment requirements and providing guidance to H-1B employers (and their H-1B workers) for proper compliance.

The Recent AAO Decision – Matter of Simeio Solutions, LLC

In Matter of Simeio Solutions, LLC (PDF copy), in an April 9, 2015 decision, the AAO discussed the requirements for an H-1B amendment when there is a change in the terms of an H-1B petition  and, specifically, change in the work location noted in the underlying H-1B petition.

In this specific case, USCIS was not able to find the beneficiary at the location named on the initial LCA and on the H-1B petition (which was in the Los Angeles, CA area) and sought to revoke the H-1B petition.   In response, the petitioner indicated that the beneficiary would work at additional work sites, not named in the initial H-1B petition, and provided certified LCAs  for the new worksites – one of which was in Camarillo, CA and the other for Hoboken, NJ.   The petitioner had made the argument that the new LCA work locations are sufficient to show compliance with the H-1B regulations and that the H-1B petition should not be revoked. The California Service Center did not accept these arguments and revoked the H-1B petition.   The petitioner then appealed to the AAO.

In its decision, the AAO reviews the relevant H-1B/LCA regulations and concludes that a change in the place of employment of a beneficiary to a geographical area requiring a corresponding LCA be certified would materially change to the terms of the approved H-1B petition and this requires an amendment.   The AAO relies on the following section of the regulations:

8 CFR 214.2(h)(2)(i)(E) states (emphasis added):

The petitioner shall file an amended or new petition, with fee, with the Service Center where the original petition was filed to reflect any material changes in the terms and conditions of employment or training or the alien’s eligibility as specified in the original approved petition. An amended or new H-1C, H-1B, H-2A, or H-2B petition must be accompanied by a current or new Department of Labor determination. In the case of an H-1B petition, this requirement includes a new labor condition application.

Also, petitioners are required to notify USCIS immediately if the terms and conditions of the H-1B petition “may affect eligibility”.   8 CFR 214.2(h)(11)(i)(A) (emphasis added) states:

The petitioner shall immediately notify the Service of any changes in the terms and conditions of employment of a beneficiary which may affect eligibility under section 101(a)(15)(H) of the Act and paragraph (h) of this section. An amended petition on Form I-129 should be filed when the petitioner continues to employ the beneficiary.

Taking these two sections of the relevant regulations, and analyzing the prevailing wage requirements for the various worksite locations, the AAO concluded that change in the worksite location may affect the eligibility under the H-1B program and, as a result, requires an amendment to be filed “immediately.”    An important note is that the AAO decision implicitly confirms that if there is a worksite location change to a new area covered by the same LCA (which is often the same Metropolitan Statistical Area, or MSA), then the requirement for an H-1B amendment would not apply.

It is important to note that the underlying case was governed by the California Service Center but this AAO decision would apply to the Vermont Service Center as well because the regulations giving rise to the decision apply to both H-1B processing service centers.

The H-1B Amendment Requirement Has Been Part of a Trend for Some Time Already

It is important to point out that this AAO decision is not a sudden change of direction.  Our office has been following closely H-1B adjudication and post-approval (site visits, consular returns, NOIR) trends coming out from both the Vermont and California Service Centers and advising clients to file H-1B amendments any time there is a change in the H-1B worksite requiring a new LCA for many months, even for well over a year.

For example, in October 2014 we wrote an extensive article (“Change in H-1B Work Location – To Amend or Not to Amend?“, October 2, 2014) about the trend in the H-1B amendment requirements coming from both Vermont and  California.    In this article we reported discussed the history of the H-1B program and the prior (and overruled by recent AAO action) guidance that an H-1B amendment is not required when the only change in the terms of the petition is a worksite location.    We wrote how this prior guidance was based on

[A]n October 23, 2003 Letter from Efren Hernandez III, Dir., Bus. and Trade Branch of USCIS, Mr. Hernandez specifically expresses guidance that H-1B amendment is not required where the H-1B worker is placed at a new location as long as there is an LCA for this new jobsite.    Over the past years, however, this guidance has been slowly and gradually superseded by a more strict interpretation of the H-1B  regulations.

In our 2014 analysis of the H-1B amendment requirement problem we also explained how in

a non-precedent AAO decision dated as of July 23, 2014, USCIS explicitly overruled the 2003 Hernandez letter and took the position that the Vermont Service Center properly revoked an H-1B petition where there was a jobsite change and LCA without an H-1B amendment filing.

The bottom line is that the Matter of Simeio Solutions, LLC decision is not a sudden change in policy or direction.   Our office had been reporting on this for a long time now and we hope that our clients and readers would find themselves with at least a bit of advance knowledge at this point and not be surprised by this new AAO decision as many appear to be.

Change in Worksite Location and H-1B Amendment – Compliance Steps for H-1B Employers

Needless to say, the recent AAO decision and the publicity it has received is causing a lot of discussion and anxiety, especially among H-1B employers who place their workers at third-party worksites.     As discussed above, our office was aware of the changing trends and we have already been providing this kind of guidance and advise for many months.    Here are some points for better compliance and less H-1B issues (such as H-1B site visits, visa stamp denials and revocations).

Anticipate and Evaluate Possible New Worksite Locations.    First, any time there is the possibility of a worksite location change during the term of an H-1B petition, the employer (and perhaps the worker) should have a process to anticipate the timing of such worksite location change, including analyzing the actual worksite change location.

H-1B Amendment Likely Not Required if New Worksite Within Same MSA or Within “Normal Commuting Distance”. The AAO decision states that “a change in the place employment of a beneficiary to a geographical area requiring a corresponding LCA be cerfified” required an H-1B amendment.  However, by implication, if there is a change in the worksite to a location within the same MSA or within a normal commuting distance, then the LCA remains valid and no H-1B amendment is required.   “Normal commuting distance” can vary depending on the area – but 20, 30 or 50 miles may be considered to be “normal commuting distance.”

File H-1B Amendment “Immediately”.    The regulations require that the H-1B employer “shall immediately notify” USCIS when there is a change in the terms of the petition – essentially, an H-1B amendment must be filed before (ideally) the new worksite location placement takes place.    Since a new LCA takes up to seven business days, the LCA and the H-1B amendment filing process should be anticipated and started at least 2-3 weeks before the new worksite location placement begins.      Even if this is not possible, the LCA/H-1B amendment should be done as soon as possible.

Late Compliance (H-1B amendment) is Better than No Compliance.   We would like to encourage H-1B employers who have not done the necessary H-1B compliance and who have relied on LCAs only for worksite changes to consider preparing and filing H-1B amendments as soon as possible.

What Kind of H-1B Cases Are in Jeopardy?   We do not know how much additional scrutiny USCIS would impose on existing petitions for worksite compliance, but mismatch between an actual worksite and H-1B petition is likely to cause H-1B visa stamp delays/denials and, ultimately, consular returns.   Similarly, H-1B site visits are likely to cause problems which would lead ultimately to a Notice of Intent to Revoke and a likely H-1B revocation.     Similarly, H-1B extensions may also face higher scrutiny to establish current compliance and status as part of the H-1B extension adjudication process.

H-1B Worksite Change/Amendments Discussion and Step-by-step Guidance – FREE Webinar

We feel that our position as having closely followed the H-1B worksite change/H-1B amendment situation over the last year or so and our advising many H-1B third-party worksite employers allows us to provide some useful guidance and compliance steps.     To accommodate the great recent demand of clarification and guidance on this issue and create a public forum for discussion, our attorneys will be conducting a free webinar focused solely on the H-1B Worksite Change/Amendments topic.

Please join us for a FREE webinar and Q&A session on the H-1B Worksite Change/Amendments topic on Monday, May 4, 2015 at 1 p.m. eastern U.S. time.    Registration is free but registration spots are limited and we expect a capacity webinar event.    Please register now to claim your spot.

Conclusion

We would like to iterate clearly that based on recent developments and trends we see,  we are recommending that H-1B amendment petitions be filed when there is a change of job location all the time and before the placing the H-1B worker at the new jobsite.     We are also happy to work with our clients to make a comprehensive compliance plan for prompt and cost-effective LCA/H-1B compliance.    H-1B employers who routinely place workers at third-party worksites should consider making such LCA/H-1B compliance plans.   Contact us to allow us to evaluate your needs and provide suggestions for compliance planning.

We invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.  In the meantime, please do not hesitate to contact us with any questions or comments, or if we can be of any assistance with analyzing or filing H-1B petitions, including amendments.

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Alert: FY2016 H-1B Cap Demand Among Highest Ever; Random Lottery Just Completed

Our office just learned that the U.S. Citizenship and Immigration Service (USCIS) has completed the intake and processing of all of the fiscal year (FY2016) H-1B cap petitions.    According to USCIS, there were nearly 233,000 H-1B cap petitions filed during the April 1st-7th filing period.   This marks a 35% percent increase in the number of H-1B cap filings this year compared to last year’s cap season and this year’s demand is historically high.

The Lottery Has Been Completed

USCIS also just announced that they have just completed the computer-generated random selection process, or lottery, to select these petitions which would be reviewed to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption.      The process involved running the random selection for the advanced degree exemption (20,000) first with all remaining unselected advanced degree petitions then becoming part of the random selection process for the 65,000 limit.

This means that the chance of an H-1B petition to be selected under the random H-1B lottery is less than 50%; in some cases the chance of selection may be as low as 30%.

Premium Processing 15-day Clock to Begin April 27th

H-1B cap petitioners who requested premium processing should note that the 15-day premium processing clock would not start until April 27th.

Next Steps and Timelines

Premium Processing Email Receipts.  USCIS will first focus on processing the selected premium processing H-1B cap petitions.   We expect that over the next 2-3 weeks we will start seeing email receipt notifications for premium processing cases.

Regular Processing Receipt Notices.  Shortly afterwards, perhaps around late April, we should start seeing paper receipt notices indicating acceptance under the lottery for regular processing H-1B cap cases.

H-1B Lottery Rejection Notices.  The H-1B lottery rejection notices are likely to be processed last, and given the fact that there will be about 150,000 such rejection packages, we expect that rejection packages will be sent out in late May or even June.

H-1B Cap-Exempt Petitions Still Accepted

It should be noted that USCIS continues to accept cap-exempt H-1B petitions.   These are petitions generally filed by universities and non-profit research organizations (read more about cap-exempt employers).  Also, H-1B extensions and H-1B transfers and concurrent H-1B petitions for a second employer are cap-exempt and can be filed at any time and outside of the H-1B cap filing season.

Conclusion

The FY2016 H-1B cap numbers are not very surprising to our office based on the demand we saw during the January-March H-1B cap preparation period.    The reasons for the high H-1B demand this year may be caused by the improving economy.   Another reason may have been the self-fulfilling prediction by USCIS in March that they expect that the cap would be reached during the first week.

We will continue to monitor developments related to this year’s H-1B cap filing season.    In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.   We are also inviting those who are interested to sign up for our FREE webinar on H-1B Cap Alternatives.

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Alert: FY2016 H-1B Cap Reached on April 7th


The U.S. Citizenship and Immigration Service (USCIS) announced that, as of today, April 7th, they have received a sufficient number of H-1B petitions to meet the annual H-1B cap for the 2015 fiscal year (FY2016).    According to USCIS, they have received more than 20,000 H-1B petitions filed for beneficiaries with U.S. master’s degree and more than the 65,000 general H-1B cap petitions.   As a result, any cap-subject H-1B petitions received by USCIS after April 7, 2015 will be rejected.

The Lottery Process

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2016 cap-subject petitions received between April 1 and April 7, 2015.  The agency will conduct the selection process for advanced degree exemption petitions first.  All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.   Also, the total number of petitions received is not yet known due to the large volume of applications.

Petitions Not Selected under the Lottery Will Be Returned With Filing Fees

Petitions accepted for filing but not selected under the lottery will be returned to the petitioners together with the filing fees (unless there were duplicate filings by the same employer for the same beneficiary, in which case no fees will be returned).

Post-Lottery Processing

Petitions which are selected under the lottery will be issued receipt notices and will be put in a processing queue.   Due to the heavy demand this year, we expect the H-1B processing times to be somewhat long.  Petitions filed under the premium processing service are likely to be processed starting late April and this is when the 15-day premium processing clock will begin.

H-1B Cap-Exempt Petitions Still Accepted

It should be noted that USCIS continues to accept cap-exempt H-1B petitions.   These are petitions generally filed by universities and non-profit research organizations (read more about cap-exempt employers).  Also, H-1B extensions and H-1B transfers are cap-exempt.

Conclusion

The FY2016 H-1B cap was reached, as anticipated during the first week it was open.   The reasons for the high H-1B demand this year may be caused by the improving economy.   Another reason may have been the self-fulfilling prediction by USCIS in March that they expect that the cap would be reached during the first week.

We will continue providing updates on the FY2016 H-1B cap season, including filing statistics, as they become available.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help, please feel free to contact us.

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Very Short and Busy H-1B Cap Filing Season Expected: April 1st to April 7th (Five Business Days); H-1B Lottery Likely; Last Call for H-1B Cap Filings

As we are going into the peak of the H-1B cap season, our office receives many inquiries about the duration of the H-1B filing season this year or, in other words, when will the H-1B cap be reached?      So far we have been able to compare demand with prior H-1B filing seasons and we knew that this would be a busy and very short H-1B filing season.     According to our sources (which includes clients, peer law firms and government agencies), we expect that the H-1B cap be reached in the first five business days of April with the number of filings over the first five business days far exceeding the available number of H-1B visas.  This means that there is almost a guarantee that there will be a random lottery to allocate the  available H-1B visas (65,000 regular cap in addition to 20,000 U.S. master’s degree or higher cap)  among all filings received in the first five business days of April.

High H-1B Cap Demand Expected:   Last Call for Starting H-1B Cases

The expected heavy demand in this H-1B filing season means that all H-1B petitions should be submitted on or very shortly after April 1st.    It should be noted that it takes at least 10-14 days to prepare and file an H-1B petition (due to the LCA filing requirement, which takes up to 7 business days).   As a result, any new H-1B cases should be initiated over the next 2-3 days, at the most,  in order to have a decent chance of being accepted under the H-1B cap before it is reached, as anticipated, on April 7th.

What is the Ultimate Last Day to Start H-1B and Make It Under the Cap?

We are often asked when is the absolute last day when an H-1B case can be started and filed under the H-1B cap.    The answer is that it varies, depending on many circumstances.    If the employer can plan ahead and file an LCA early (or now), then a new (or confirmed) candidate’s H-1B petition can be started as late as April 1st and still be filed before April 7th.    The LCA is the step of the process which takes the longest to prepare and certify – often 7 business days.  New employers may also need to do a Federal Tax ID (FEIN) verification process (2-3 days) before an LCA is filed.   As a result, while it may be possible to start a new H-1B case as late as March 24, 2015,  there are many possible risk factors which would cause a late H-1B case to be delayed and miss the H-1B cap.

Our strong recommendation to employers is to consider filing all LCAs (even for planned but unconfirmed positions) over the next few days to keep the best possible options for a timely H-1B cap case filing.    Our office is happy to guide you on the timing process to give you the highest possible chance of making the cap.

H-1B Applications Filed Over the First Five Business Days in April Will Be Subject to Random Lottery

Assuming the H-1B cap is reached by April 7th, as expected, all H-1B filings which are received over the first five business days in April will be subject to  a random lottery to determine which of these H-1B applications would be counted and included under the cap.   This means that, as of now, we expect all H-1B cap cases filed over the first business five days in April to be subject to the random lottery.  Last year, in April 2014, there was also a random lottery to allocate the approximately 180,000 H-1B filings among the total of 85,000 H-1B visas.

H-1B Filings Not Picked by the Lottery or Filed After the Cap is Reached Will be Rejected and Returned

H-1B cases filed over the first five business days in April but not picked by the random lottery or H-1B cases filed after April 7th (again, assuming there are more filings over the first five days than there are available H-1B visas) are processed by USCIS to be returned to the filing petitioner employer (or their attorney) with an explanation that the H-1B cap has been reached and that there are no longer H-1B visas under this year’s cap.

Premium Processing Clock for New H-1B Cases to Start At a Later Date

In connection with the high level of H-1B filings, USCIS is likely to change the way they would process premium processing H-1B cases filed under the H-1B cap.    Under current practice, the 15-day premium processing “clock” starts on the day a case is received by USCIS.      For cases filed under the H-1B cap, in order to facilitate the prioritized data entry of cap-subject petitions requesting premium processing,  USCIS is likely to indicate that that for cap-subject H-1B petitions, including H-1B petitions seeking an exemption from the fiscal year cap for individuals who have earned a U.S. master’s degree or higher, the premium processing “clock” will begin later in April, most likely around April 15th.     This means that even for cases filed on April 1, 2015, the premium processing 15-day response window would not start until later in April.   Premium processing H-1B petitions filed outside of the H-1B cap (such as extensions or transfers) should not be affected.

Conclusion

We have been writing over the past few weeks about the possibly very short H-1B cap filing season this year.   Given the time it takes to prepare and file an H-1B cap case,  this is the last call for starting an H-1B case with a chance of filing under the H-1B cap.

We will be providing updates (as soon as USCIS released the H-1B numbers, which they normally do every two weeks) on the H-1B cap.  To ensure you receive these updates, please sign up to our free weekly newsletter.  If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us immediately.

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H-4 Spouse EAD Rule – Online Chat and Webinar Q&A Opportunities

Since the H-4 Spouse EAD rule announcement yesterday, our office has been receiving a number of questions and inquiries about the rule.  the rule.  For example, many people are interested to know whether the approved I-140 petition, which is one of the eligibility factors, must be from a current employer or it can be from a former employer.    Our office has been analyzing the full rule text and comments and we have been utilizing our resources to gather more information about this and other questions regarding the rule.

To accommodate the great demand of clarification and create a public forum for this, our attorneys will be conducting series of Q&A events focuses solely on the H-4 Spouse EAD rule, as follows:

  • Online Chat – Thursday, February 26, 2015 at 3:00 PM EST – free online chat session with Capitol Immigration Law Group attorneys to discuss the H-4 Spouse EAD rule and answer questions about the rule.    See the archived chat transcript.
  • Webinar – Tuesday, March 3, 2015 at 1:00 PM EST – free webinar with a more detailed and formal presentation and discussion of the rule, its criteria, mechanics, requirements and challenges.   See the archived webinar.

In the meantime, our office will continue to post articles on our website and newsletter on this and related topics.     Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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Final H-4 Spouse EAD Rule Announced – Becomes Effective May 26, 2015

After months of waiting and anticipation, USCIS has finally announced that effective May 26, 2015, USCIS will begin accepting applications for I-765 Employment Authorization Document (EAD) applications by certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status.

Who is Eligible to Apply for EAD?

H-4 spouses who are eligible for the EAD under this rule are:

  • spouses of H–1B workers if the H-1B worker is a beneficiary of an approved Immigrant Petition for Alien Worker (Form I–140);  or
  • spouses of H–1B workers if the H-1B worker has been granted an extension of their authorized period of admission in the United States under the section 106(a) and (b) of American Competitiveness in the Twenty-first Century Act of 2000 (AC21).    Section 106(a) and 106(b) of AC21 allow H-1B status extension of the H-1B worker is the beneficiary of a PERM Labor Certification or an I-140 petition which has been pending for more than 365 days.

It should be noted that the rule explicitly states that H-4 dependent children will not be eligible for EAD under this rule.

Mechanics of the H-4 Spouse EAD Application Process

The rule would add eligible H-4 spouses to the list of nonimmigrants eligible to apply for an employment authorization document (EAD).    The application will be filed using the current Form I-765, together with filing fees ($380 as of the date of this article), photos and supporting documents to establish eligibility for this new class of EAD.

Earliest Filing Date.   The earliest date USCIS will accept EAD applications pursuant to this rule is May 26, 2015.    Applications filed before this date will be rejected.       However, applications can be prepared in advance and our office will be happy to do so for a timely filing as soon as the filing window opens on May 26, 2015.

EAD Validity and Extensions.   As with most other EAD classes, employment would be authorized only after the EAD has been approved and only during the validity of the approved EAD document.    The  rule mentions that USCIS is considering that such EADs will be issued with validity of up to two years, recognizing that even if USCIS were to issue a longer EAD validity period, it cannot exceed the applicant H-4 spouse’s H-4 status validity period.      Extensions can be filed up to 120 days in advance of expiration of the current EAD term (and assuming continuing H-4 status and extension eligibility) and EAD extensions can be (and perhaps should be) filed together with H-4 status extensions.

Concurrent H-4 Status and H-4 EAD Applications Permitted.    The rule allows specifically for the concurrent filing of I-539 applications seeking to either change to H-4 status or to extend H-4 status together with the I-765 EAD application.   This is great news because it allows for the concurrent processing of an H-4 status with a work permit application.    Without the concurrent filing option, an H-4 applicant would have to wait for the H-4 status to be approved, and then file a separate EAD application and wait for another 2-3 months for the actual work authorization.     In cases where this is possible, we encourage concurrent filing of the I-539 H-4 status application and the I-765 EAD applications.

Documentation of Eligibility.   Since EADs under this rule would be issued only to a limited set of H-4 spouses, the EAD application would require enhanced documentation to show eligibility.    In addition to the application form, fee and required passport photos, the EAD application would seek evidence that the H-1B nonimmigrant spouse is beneficiary of an approved I-140 petition or has PERM Labor Certification or I-140 petition filed more than 365 days prior; in addition to evidence of the applicant’s H-4 status validity and duration.

Full Text of the Rule

For those of our clients and readers who want to dig into the rule, it can be accessed online.

More Information and Opportunity to Ask Questions

Our office will be holding a free webinar on this rule, its requirements and challenges.   The webinar is scheduled for Tuesday, March 3rd at 1 pm eastern time.   Please register early to claim your spot – registration and attendance are free but space is limited.

H-4 Spouse EAD Attorney Service Filing Quote

Our office has been monitoring closely this rule since it was announced in May 2014 and we are ready to start accepting applications for filing on or after May 26, 2015.     If you would like one of our attorneys to review your case and provide a free and no-obligation quote for our services, please complete this brief request H-4 Spouse EAD attorney quote form.

Conclusion

We welcome DHS’s publication of the new H-4 spouse EAD rule and we believe that many eligible H-4 spouses would benefit from a permission to work while waiting for their spouses’ green card to be approved (several years in some cases).

Please do not hesitate to contact us if we can review your case, answer any questions or schedule a consultation.   We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

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How to File an H-1B Cap Petition When the Current Degree is Still in Progress?

DiplomaAs the H-1B cap filing season is well underway and as the filing day of April 1st is approaching fast, a common question by H-1B employers or H-1B candidates is whether an H-1B cap petition can (or should) be filed when the foreign national employee is still completing their degree program and when the degree will not be completed by April 1st.   The short answer is that while the H-1B regulations require a degree be completed in order to be used for H-1B filing, there are ways to use previous or partially-completed degree to qualify for the H-1B cap.   This option becomes increasingly important as we are facing a situation where, due to high demand, many H-1B candidates will not be selected under the H-1B cap lottery and being able to file a few times, over two or three H-1B cap seasons, becomes a critical advantage.

Background:  Supporting H-1B Employee’s Degree Must be Completed by April 1st

The general rule with respect to using educational degrees for H-1B cap filings is that a degree must be completed before April 1st in order for this degree to be usable to qualify its holder for H-1B work visa filing under the H-1B cap.   USCIS has clarified that they would accept degrees as completed when all of the courses and degree requirements have been completed by April 1st and that the only outstanding item remaining is the actual graduation ceremony (which is usually later in the spring, most often in May).

While it is possible that some degree requirements can be completed by April 1st (in which case the degree can be used to qualify for the H-1B cap), most often a degree is not completed by April 1st.  In this kind of situations, the foreign national (and their employer) does not normally consider the possibility of an H-1B cap filing.  However, there are ways in which this can be done, thereby increasing the attempts an H-1B cap petition can be filed, selected under the cap and ultimately approved.

H-1B Cap Filing Based on Prior or Partially-Completed Education

Even when the degree is not completed by April 1st, all is not lost.    An H-1B petition normally requires that the position require a bachelor’s degree or higher and that the foreign worker have such a degree.   So, if a master’s degree student is working on completing their master’s degree but the degree requirements are not completed by April 1st, and assuming the undergraduate degree is related to the offered position, the H-1B employer can still file a cap H-1B petition on behalf of the foreign national.   Yes, the H-1B cap will have to be under the general (65,000 visas) cap as opposed to the master’s (additional 20,000 visas) cap; but it still allows a filing and an extra shot at the cap lottery.

Additionally, USCIS accepts work experience in lieu of missing education.  Three years of relevant experience can be used to supplement each missing year of education.  So if an foreign worker has three years of completed education but at least three years of related work experience, it may be possible to make an equivalency argument for a bachelor’s degree.   This may even allow a foreign student who is pursuing their bachelor’s degree in the U.S. and who has at least three years of relevant experience to make a case for H-1B cap filing on April 1st.

Conclusion

With the high anticipated demand during the H-1B cap season and the anticipated lottery, it becomes increasingly important for H-1B employers and their H-1B visa candidates to take advantage of any available opportunity to increase their chances to ultimately get selected under the H-1B cap.  Being able to file under more than once, in two or three, H-1B cap lottery iterations becomes one of the key (and sometimes overlooked) ways to boost one’s chances.

We are hopeful that this article would allow at least some H-1B employers and workers to evaluate the opportunity of filing for H-1B under this year’s cap even if the degree is still in progress and will not be completed by April 1st.    Our office has grown as a leading practice in H-1B petitions and other employment-based immigration matters so please do not hesitate to contact us if we can help you in any way.    Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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Client Success Story: How Premium Processing of an H-1B Petition Helped Us Reverse USCIS Error and Save Our Client Time and Money

One of the main areas of expertise of our firm is handling H-1B petitions for a number of organizations around the United States.   Our readers are aware that the H-1B petition allows the election of a premium processing service which, for an additional government filing fee of $1,225.00, guarantees that the government will provide a response on the petition within 15 calendar days.     Often we are asked by our clients t advise whether premium processing must be chosen or the regular process (which can vary between 2-5  months) is sufficient.

In many cases this determination is easy – premium processing must be used when there is a requirement for fast employment start, especially in change of status cases.   In other cases, however, the decision to use premium processing is not so easy.    We would like to share one of our recent client success stories to highlight some of the additional benefits of using premium processing.

The Client Situation

Our office was contacted by an individual and their employer after they had filed the H-1B petition internally.   The employer sought to petition for H-1B transfer and to extend the beneficiary’s current H-1B status.    Due to a number of reasons, the employer had filed the H-1B transfer petition a few days after the optimal filing time and, as a result, USCIS had issued a request for evidence seeking evidence that the beneficiary had maintained valid status as of the time of filing of the H-1B petition.     Our office was engaged to respond to the RFE and complete the case in the best possible way.

Upgrading to Premium Processing Together with the RFE Response

We worked with the client to prepare the best possible RFE response and we worked to draft a number of legal arguments providing a justification of the delay and asking for USCIS discretion in excusing the late H-1B petition filing by the client.   At the same time, we upgraded the H-1B petition from regular to premium processing.    The rationale for this premium processing upgrade was partially to force the decision faster so that the client can seek alternatives in case the USCIS response was negative.

At the same time, by upgrading to premium processing, as attorneys, we gained a few additional and often overlooked benefits of the premium processing service.    First, we are given a direct access to the USCIS service center, including a direct email and phone contact with immigration officers at the service center.   This kind of access is essential when working with USCIS to address any issues or concerns relating to a case promptly and efficiently.

By way of comparison, USCIS provides a customer service phone line to all regular processing cases but handling case issues, especially complex ones,  through the regular customer service avenue is often very slow and sometimes, especially for more complex situations, even impossible.

Initial USCIS Decision:   Both Petition and Extension of Status Requests Denied

In response to our premium processing upgrade and RFE response, USCIS provided a prompt decision but not the decision our client hoped for.   USCIS determined that because the beneficiary had not maintained valid status at the time the H-1B petition has been filed, they are denying both the H-1B classification petition and the extension of status request.

At that time, our attorneys immediately spotted a USCIS error.   In cases where the beneficiary is not proven to be in valid status at the time of filing of an H-1B petition, USCIS has the option of denying the status component of the H-1B petition.  However, if there are no other outstanding issues regarding the H-1B petition, USCIS should approve the H-1B classification component of the petition.

As a result, our office realized that USCIS should have approved the H-1B petition, with consular notification option, even though the status component of the petition was denied.   We sought to correct this situation for our client.

Case Problem and Error Resolution for Premium Processing Cases

Normally, when USCIS denies an application, the normal route is to file for an I-290B motion to reopen/reconsider or even appeal at the Administrative Appeals Office.   This application must normally be filed within 30 days of the denial decision date, often with a fee, and often has a processing timeline of 4-6 or more months.    This kind of case denial resolution option is often inadequate, especially for H-1B petitions, because of the significant period of uncertainty.    Many employers decide to refile their H-1B petition with a new set of fees even when they feel that the denial is reversible on appeal.

Understanding the challenges of a new refiled petition in terms of time and cost for our client, we sought to convince the service center that they have made a wrong decision.    Immediately upon receipt of the denial notice, our office reached out to the service center’s premium processing unit responsible for the case and we explained in detail the legal reasons as to why their decision to deny the H-1B classification portion of the petition was wrong.     We explained that under relevant guidance a finding that the beneficiary had not maintained valid status at the time of filing should not cause the classification portion of the H-1B petition to be denied.   Instead, in this kind of cases, the H-1B petition should still be approved, albeit with consular processing.

Several days later our office received notification from the service center that a supervisor had reviewed our arguments in the case and had issues a corrected decision — to approve the H-1B petition with consular processing.   As a result, we were able to achieve complete and favorable case resolution for the full benefit of our client within a few days and without any additional cost to our client (this kind of service is normally included in our H-1B petition flat fee arrangement).   We were able to save time and money to our client by not having to use the I-290B motion/appeal case resolution avenue.

Is Premium Processing Worth It In All Situations?

The moral of this story is not to imply that premium processing should be used in all situations – in fact, there are cases where premium processing may impact an H-1B filing strategy negatively.    The moral of the story is that premium processing service should be considered not only when a fast decision is required but also where the case may have complexities or issues.

Certainly we suggest all H-1B petitioners to discuss the pros and cons of premium processing with their attorneys before filing to understand and confirm that a premium vs. regular processing filing option is the best for that particular case.

Conclusion

We hope that this client success story is helpful to our clients and readers to understand the alternative ways to resolve a case where premium processing has been used.    Our hope is that case difficulties would not happen in the first place, but if or when they do, using premium processing service may allow for one extra layer of case resolution options.

Our office has grown as a leading practice in H-1B petitions and other employment-based immigration matters so please do not hesitate to contact us if we can help you in any way.    Please visit us again or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements

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The OPT Cap-Gap Rule: Extension of Post-Completion OPT and F-1 Status for Eligible Students Applying for Cap H-1B

Spring and early summer are generally busy period for recent foreign college graduates as far as employment immigration is concerned.  On one hand, foreign college graduates are either applying for their initial term OPT, their 17-month STEM extensions (if they qualify) or their H-1B work visas under the H-1B cap.

Our office fields many questions from prospective or recent college graduates with respect to their OPT and H-1B options.   In this article we will focus on a number of questions relating to H-1B and the “cap-gap” provision allowing students with expiring OPT work permits to continue working subject to a timely-filed H-1B petition under the H-1B cap.

Background on the H-1B Cap

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for the current fiscal year starting on October 1st.

H-1B is a nonimmigrant visa classification used by U.S. employers to hire a foreign national who will be employed temporarily in the U.S. in a specialty occupation (generally one which requires a bachelor’s degree or higher) or as a fashion model.  Each year, by law, USCIS can approve up to new 65,000 H-1Bs, thereby allowing many private and employers to hire temporary qualified workers.   H-1B non-immigrants who work at (but not necessarily for) universities and non-profit research facilities are excluded from the numerical cap (see below for discussion of cap-exempt employers).

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H-1B visas issued to alien workers who obtained their master’s degree from a U.S. university are exempt from the 65,000 cap;  H-1B visas issued to such U.S. master degree holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.

What Is “Cap-Gap”?

The current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire, and up to the start of their approved H-1B employment period.  This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the F-1 work permit (OPT) and beginning of the H-1B status on October 1st that might otherwise occur if F-1 status was not extended for qualifying students.   For example, a student whose OPT is set to expire on July 15th will have a “gap” between this date and October 1st when a new H-1B cap petition would begin (once approved).

How to Invoke the “Cap-Gap”?

Most importantly, an H-1B cap petition must be timely filed on behalf of an eligible F-1 student.  This means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B cap acceptance period, while the student’s authorized duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion OPT, and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student’s H-1B petition is selected under the H-1B cap lottery and approved, the student’s F-1 OPT will be considered extended and will continue through September 30th unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected under the H-1B lottery or not approved, the student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to prepare for and depart the United States.

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing.

Is Proof of Cap-Gap Status Necessary?

A student will need to obtain an updated Form I-20 from his or her designated school official (DSO). The Form I-20 is the only document a student will have to show proof of continuing status and OPT, if applicable. The student should go to their DSO with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student’s DSO will issue an interim cap-gap I-20 showing an extension until October 1st.  Students whose approved period of OPT already extends beyond October 1st do not need an interim extension.

In some cases, a student’s SEVIS record will not be automatically updated with the cap-gap extension, in error. In this situation, the student’s DSO may need to add an interim cap-gap extension to the student’s SEVIS record or contact the SEVIS Help Desk to have the full cap-gap extension applied to the record.

Are Expired or Expiring OPT EAD Holders Eligible for Cap-Gap?

For a student to have employment authorization during the cap-gap extension, he or she must be in an approved period of post-completion OPT on the eligibility date which is generally the date of filing of the H-1B petition.

Can Students Travel While Under Cap-Gap Extension?

The regulations at 8 CFR 214.2(f)(13) state that a student who has an unexpired Employment Authorization Document (EAD) issued for post-completion OPT and who is otherwise admissible may return to the United States to resume employment after a temporary absence.  However, by definition, the EAD of an F-1 student covered under a cap-gap extension is necessarily expired.  Consequently, if a student granted a cap-gap extension elects to travel outside the United States during the cap-gap extension period, he or she will not be able to return in F-1 status.  The student will need to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is presumably for an October 1 or later start date, the student should be prepared to adjust his or her travel plans accordingly.

Conclusion

The OPT cap-gap provisions for F-1 international students can be complex and may apply in different ways in different situations.    Additionally, the cap-gap rule only applies if there is a timely-filed H-1B petition under the H-1B cap.    While we do not yet know how quickly this year’s H-1B cap would be reached, indications of the heavy interest early this year and last year’s historical data suggest for a very short (5-day) H-1B cap filing window.    In fact, we urge our clients and readers to assume that the H-1B cap season will last only five days and to aim for April 1, 2015 H-1B petition filing.

If you wish to start a new H-1B work visa petition under this year’s quota, if you have any questions or concerns about the OPT cap-gap rule or if our office can be of any help, please contact us as soon as possible.  Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application, together with helping you navigate through the OPT cap-gap rules and situations.

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PERM, H-1B and Prevailing Wage Case Processing Statistics from the Department of Labor (FY2015 Q1)

The Department of Labor has provided some updates for the first quarter of the Fiscal Year 2015 (October 1, 2014 to December 31, 2014) on their processing of PERM, H-1B LCA and prevailing wage determination cases and we are happy to share them with our clients and readers.

DOL Processing Statistics (First Quarter, 2015 Fiscal Year)

PERM

According to the PERM case report, during the quarter, there were 23,133 new cases received (an increase of 7% from the prior quarter and a significant 31% increase compared to the same period of the previous year), 16,192 certified (slight increase over the previous quarters), 1,322 denied (increase, but in proportion of the rate of new filings) and 1,104 withdrawn (about the same as the prior quarter).

There are 64,810 applications pending as of December 31, 2014 which is about 8% increase in the pending case load.   Out of these cases, approximately 60% are in analyst review stage (no change to prior quarter), 30% under audit review (no change) and 8% on appeal (slight decrease.)

Prevailing Wage Determinations

The prevailing wage report provides some detailed breakdown of the rate of filings in addition to details about top employers, top occupations and top areas.   During the first quarter, there were approximately 38,000 prevailing wage determination requests filed — of those, 29,870 were for PERM cases (increase of 27% compared to prior year’s period), 1,476 were for H-1B cases (increase of 5%) and 6,334 were for H-2B cases (increase of 38%).     In terms of activity, 31,946 prevailing wage determinations were issued during the first quarter and the pending load has increased from 14,619 during the prior quarter to 18,282 in the first quarter of FY2015.

H-1B/LCA

The H-1B/LCA report also provides a breakdown in the rate of filings, in addition to some details about the top LCA filers and the top positions and geographic areas.    Since this quarter fell entirely outside of the H-1B cap filing season, the number of LCA filings is lower compared to other quarters during the year, and especially Q2 of 2014.  Even then, there were 80,520  H-1B LCA filings in the first quarter, noting a decrease of about 13% compared to the prior quarter.   During the quarter, there were 77,691 LCAs certified for 169,282 positions (one LCA can include more than 1 position).

According to DOL, 100% of the LCAs are processed timely within seven days of receipt.     The rate of LCA denial is fairly low (1,761 out of 89,367 determinations) and the main reasons remain (1) FEIN mismatch or failure to verify before LCA filing  or (2) prevailing wage tracking number issues.

Conclusion

The first quarter of the FY2015 shows a significant increase in the number of DOL filings in a number of categories.  Perhaps most notable is the increase in PERM filings – 31% increase over the prior year and 7% increase over the prior quarter.   Similarly, the PERM prevailing wage requests rose by 27% over the prior year period, signaling continued strong rate of upcoming PERM filings.   Thus, in turn, is likely to translate increase in the PERM case processing times.    We are hopeful that DOL would continue to work on decreasing its load and processing times, especially for the PERM cases (see the most recent PERM processing times report).

We will continue monitoring DOL processing metrics and report any notable developments and trends.      Please visit us again, contact us, or subscribe to our free weekly newsletter to ensure that you obtain this and related immigration-related news and announcements.

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