USCIS Returns to Concurrently Processing H-4 and L-2 Dependent Applications

Pursuant to a recent settlement agreement, USCIS has agreed to resume its earlier practice of adjudicating I-539 status extensions and I-765 work permit applications at the same time that the principal’s I-129 is adjudicated - a.k.a. “bundling.” In recent years, dependents’ status extension and work permit applications would be adjudicated several months or even years later than the principal’s status extension filing. “Bundling” is only available for concurrently filed applications and will be applied to matters filed under regular or Premium Processing. The practice should be in effect for at least two years.

© Jewell Stewart & Pratt PC 2023

H-1B "cap" reached for FY 2023

U.S. Citizenship and Immigration Services (USCIS) announced on August 23, 2022 that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2023. 

The USCIS announcement states:

USCIS has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2023.

We have completed sending non-selection notifications to registrants’ online accounts. The status for registrations properly submitted for the FY 2023 H-1B numerical allocations, but that were not selected, will now show:

• Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.

We will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2023 H-1B cap. We will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;

• Change the terms of employment for current H-1B workers;

• Allow current H-1B workers to change employers; and

• Allow current H-1B workers to work concurrently in additional H-1B positions.

No further selections for new H-1B petition filings will take place for FY 2023, and the next registration period for FY 2024 will take place sometime in Q1 2023.

© Jewell Stewart & Pratt PC 2022

H-1B "cap" registration dates announced for 2022 (FY 2023)

On January 28, 2022, USCIS announced the dates for the upcoming H-1B cap registration window and selection process. Selection will be via random lottery, as in prior years. (USCIS has abandoned its plans for a wage-based selection process.)

In its announcement USCIS stated that registrants will be able to create new accounts beginning at 9AM PT / 12 PM ET on February 21. Employers MUST NOT create an account before this date because it will lack H-1B registration functionality.

USCIS also stated that the registration period will open at 9AM PT / 12 PM ET on March 1 and close at 9AM PT / 12 PM ET on March 18. The random lottery will be conducted following the close of the registration period, and account holders will be notified of selected registrations by March 31, 2022.

© Jewell Stewart & Pratt PC 2022

USCIS Runs Third H-1B Lottery on 2021 (FY 2022) Registrations

On November 19, 2021, USCIS announced that it ran a third H-1B lottery on 2021 (FY 2022) registrations. The petition filing period based on the new selected registrations will be from November 22, 2021 to February 23, 2022. We will be notifying clients of additional selections and next steps for filing ASAP. Thank you for your patience!

© Jewell Stewart & Pratt PC 2021

Historic Changes for L-2, H-4, & E Spouse Work Authorization

11/12/2021 Update: On November 12, 2021, USCIS released a confirming policy memo and corresponding policy manual changes that, in addition to the H-4 and L-2 changes discussed below, also includes automatic extensions of work authorization for E spouses (including E-1, E-2, and E-3 dependent spouses).

Original post:

On November 10, 2021, the American Immigration Lawyers Association and its litigation partners announced that it has reached a settlement that “provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization.”

Under the settlement agreement, the U.S. Citizenship and Immigration Service (USCIS) will reverse its policy that prohibited H-4 spouses from benefiting from an automatic extension of their employment authorization during the pendency of certain employment authorization document (EAD) applications. It will also reverse its policy that L-2 spouses must apply for employment authorization prior to working in the United States.

H-4 dependent spouses covered by the Settlement Agreement are those who:

1. Properly filed an application to renew their H-4 based EAD before it expired.

2. Have an unexpired Form I-94 showing their status as an H-4 nonimmigrant.

3. Will continue to have H-4 status beyond the expiration date of their EAD.

Under the Settlement Agreement, USCIS will treat H-4 nonimmigrants who timely file their I-765 EAD renewal applications, and continue to have H-4 status beyond the expiration date of their EAD, as qualifying for an automatic extension of their employment authorization. Such an automatic extension will terminate on the earlier of: the end date of the individual’s H-4 status on Form I-94, the approval or denial of the Form I-765 EAD renewal application, or 180 days from the “Card Expires” date on the face of the EAD.

USCIS is expected to issue guidance shortly; and within 120 days of 11/10/2021, USCIS will amend the receipt notice currently issued to H-4 EAD applicants to describe EAD auto-extension eligibility.

Summary of changes for L-2 Spouses:

• All L-2 spouses are covered by the terms of the settlement agreement.

• USCIS will issue policy guidance within 120 days that states that all L-2 spouses are work authorized incident to status (i.e., they do not require an EAD or “work permit”). USCIS will also work with CBP to start issuing I-94s for L-2 spouses that indicate that they may be used as a List C document for I-9 purposes.

• L-2 spouses with timely-filed pending EAD renewals who are still in L-2 status now qualify for an automatic 180-day extension to their EADs, not to exceed their L-2 status (I-94) expiry. USCIS will also issue guidance for how employers can re-verify work authorization for those with pending EADs by using the facially expired EAD, the receipt notice showing timely filing, and an unexpired I-94.

• “Until the Form I-94 is changed to identify that the bearer is an L-2 spouse, for I-9 purposes, it will not be sufficient evidence of employment authorization acceptable under List C of Form I-9. L-2 spouses with pending renewal EAD applications may, however, receive automatic extensions of their EADs and present the combination of documents described above to their employers to satisfy Form I-9 requirements.”

© Jewell Stewart & Pratt PC 2021

USCIS Runs Second H-1B Lottery on 2021 (FY 2022) Registrations

On July 29, 2021, USCIS announced that it ran a second H-1B lottery on 2021 (FY 2022) registrations. Attorney accounts were locked for several hours but we are now able to access accounts and will be notifying clients of additional selections and next steps for filing. Thank you for your patience!

H-1B "cap" reached for FY 2022

U.S. Citizenship and Immigration Services (USCIS) announced on March 30, 2021 that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2022. 

The USCIS announcement states:

We randomly selected from among the registrations properly submitted to reach the cap. We have notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.

Registrants’ online accounts will now show one of the following statuses for each registration (that is, for each beneficiary registered): 

• Submitted: The registration has been submitted and is eligible for selection. If the initial selection process has been completed, this registration remains eligible, unless subsequently invalidated, for selection in any subsequent selections for the fiscal year for which it was submitted.

• Selected: Selected to file an H-1B cap petition.

• Denied: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.

• Invalidated-Failed Payment: A registration was submitted but the payment method was declined, not reconciled, or otherwise invalid.

…

H-1B cap-subject petitions for FY 2022, including those petitions eligible for the advanced degree exemption, may be filed with USCIS beginning April 1, 2021, if based on a valid, selected registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2022, and only for the beneficiary named in the applicable selected registration notice.

In the 2020 (FY 2021) season, a second selection process took place in August to make unused H-1B visas available. USCIS has not yet announced when such a second selection might take place in 2021 (FY 2022).

© Jewell Stewart & Pratt PC 2021

H-1B "cap" for 2021 (FY 2022) will be a Random Lottery, as in Prior Years

Last updated: 02/05/2021

On February 4, 2021, USCIS announced that the upcoming H-1B cap registration selection process will be via random lottery, as in prior years. USCIS had previously announced a wage-based selection process. Today’s announcement stated that “to give USCIS more time to develop, test, and implement the modifications to the H-1B registration system and selection process, DHS is delaying the effective date of this final rule from March 9, 2021, to Dec. 31, 2021. The delay will also provide more time for USCIS to train staff and perform public outreach as well as give stakeholders time to adjust to the new rule.”

Again, for the upcoming H-1B cap season, USCIS will apply the current regulations (random selection) to any registration period that takes place before Dec. 31, 2021. On February 5, 2021, USCIS announced that the first registration period for Fiscal Year 2022 will open at 9AM PT / 12 PM ET on March 9 and close at 9AM PT / 12 PM ET on March 25. The random lottery will be conducted following the close of the registration period, and account holders will be notified of selected registrations by March 31, 2021.

© Jewell Stewart & Pratt PC 2021

DHS publishes proposed change to cap-subject H-1B visa petition processing: a wage-based selection system

On October 28, 2020, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking (NPRM) that would change the way cap-subject H-1B petitions are processed. The announced change would, in years when demand for new H-1B visas exceeds the annual numerical cap, replace the current annual lottery process with a system that prioritizes the selection of H-1B registrations based on the highest prevailing wage level that the employer’s salary offer equals or exceeds.

Prevailing wages are usually calculated by reference to data collected by the Department of Labor (DOL) through its Occupational Employment Statistics (OES) program. DOL uses OES data to set four levels of prevailing wage for occupations in locations across the United States. (On October 8, 2020, DOL made changes to this system that resulted in higher prevailing wages across the board.) Under DHS’ new rule, if more registrations are received during the H-1B registration period than is necessary to reach the year’s numerical cap, USCIS will rank and select the registrations based on the highest OES prevailing wage level that the proffered wage equals or exceeds.

USCIS will begin with registrations whose proffered wage meets or exceeds the OES Level 4 prevailing wage. If there are insufficient registrations with such wages, USCIS will then proceed in descending order to registrations whose proffered wage meets or exceeds the OES Levels 3, 2, and 1. (When USCIS had its first annual registration process for H-1B cap-subject cases, in March 2020, employers registered prospective H-1B employees without providing specific job or wage data. This proposed new regulation would require that the electronic registration form be amended to require the applicable OES prevailing wage level for the job offered.)

Thus, if more registrations are received at a particular OES prevailing wage level than is required to meet the applicable cap, USCIS will randomly select from all registrations containing that particular OES prevailing wage level. Put another way, if USCIS receives more than 65,000 registrations whose proffered wages exceed an OES wage level 4, the lottery will be run only on those registrations. If the H-1B beneficiary will work in multiple locations, each with different prevailing wages, USCIS will rank the registration based on the lowest OES wage level that the proffered wage will equal or exceed.

This proposed rule was published on November 2, 2020, and comments on the rule must be submitted on or before December 2, 2020. The public will have 60 days from November 2, 2020 to comment on the revisions to the H-1B Registration Tool and Form I-129 that will be required to implement the rule. The rule will not take effect until a Final Rule is published and made effective.

We will post further updates as they become available.

© Jewell Stewart & Pratt PC 2020 

DOL announces changes to prevailing wage system effective October 8, 2020

December 7, 2020 update:

On December 1, 2020, the U.S. District Court for the Northern District of California set aside the wage change rule, requiring USCIS and the Department of Labor to revert back to the previous prevailing wage system.

Original Post:

U.S. immigration law requires employers to pay certain workers, including those working pursuant to H-1B, E-3, and H-1B1 visas, the greater of (1) the actual wage paid by the employer to all other individuals with similar qualifications for the employment in question, or (2) the prevailing wage level for the occupation in the area of employment. On October 6, 2020, the U.S. Department of Labor (DOL) announced changes to prevailing wage system, effective October 8, 2020, that will result in higher prevailing wages for all occupations.

As background, prevailing wages are usually calculated using data collected by DOL’s Office of Foreign Labor Certification (OFLC). In H-1B, H-1B1, and E-3 visa cases, the prevailing wage is then included in the Labor Condition Application (LCA) that the employer must have certified by DOL before the actual visa petition or application can be filed with the appropriate agency. DOL also uses OFLC data to set prevailing wages in its PERM program, which is often the first part of the employment-based permanent residence process.

DOL’s interim final rule (IFR), effective October 8, 2020, will change the method of computation of prevailing wages and will directly result in higher prevailing wages for all occupations. The rule will mostly apply only to prevailing wages calculated on or after October 8. It will not be applied to any previously-approved prevailing wage determinations, permanent labor certification applications, or LCAs. However, going forward, employers beginning new petitions or applications for H-1B, E-3, H-1B1, or PERM labor certification will notice an immediate increase in the OFLC prevailing wage data.

Taken with the U.S. Department of Homeland Security’s overhaul of the H-1B visa system, regulations for which are expected shortly, this change to the prevailing wage system may make it harder for U.S. employers to obtain visas for workers to fill a temporary need, adding to the stresses already imposed by the COVID-19 pandemic and an ailing U.S. economy. Existing prevailing wage data tends to skew higher than real-life salaries—for example, the prevailing wage for a software development manager with a bachelor’s degree and over four years of experience, in the San Francisco Bay Area, is $252,117 today (October 7, 2020)—so the new data may put visas out of reach for some employers.

These changes have been made at extremely short notice, and may be challenged in litigation; further updates will be posted here as they occur.

© Jewell Stewart & Pratt PC 2020