H-1B "cap" reached in 2024 (FY 2025)

On April 1, 2024, U.S. Citizenship and Immigration Services (USCIS) announced that it has received a sufficient number of H-1B petitions to reach the statutory H-1B visa “cap” for fiscal year (FY) 2025.

The USCIS announcement states:

“We have randomly selected enough properly submitted registrations for unique beneficiaries projected as needed to reach the H-1B cap and have notified all prospective petitioners with selected beneficiaries that they are eligible to file an H-1B cap-subject petition for such beneficiaries. 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.

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

• Denied – duplicate registration: 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.

• Deleted: The submitted registration has been deleted and is no longer eligible for selection.

• Processing submission: USCIS is processing your submission. It may take up to 72 hours for all of your case information to show on the case details page. While it is processing, you will be unable to access your draft.

… H-1B cap-subject petitions for FY 2025, including those petitions eligible for the advanced degree exemption, may be filed with USCIS beginning April 1, 2024, if filed for a selected beneficiary and based on a valid registration. Only petitioners with registrations for selected beneficiaries may file H-1B cap-subject petitions for FY 2025.”

USCIS has not yet announced whether and when an additional selection might take place in 2024. In 2023 and 2021, additional selections took place to make use of unused H-1B visas. In 2022 no additional selections took place. We will watch developments closely and post updates here as they occur.

© Jewell Stewart Pratt Beckerson & Carr PC 2024

Four JSPBC Lawyers Recognized by Who’s Who Legal in Corporate Immigration for 2024

Jewell Stewart Pratt Beckerson & Carr is pleased to announce that lawyers Claire Pratt, James Mayock, Phyllis Jewell (ret.), and Wendy Stewart (ret.) have been selected by Who’s Who Legal (“WWL”) as Global Leaders in Corporate Immigration for 2024. Phyllis and James have additionally been selected as “Thought Leaders.” The firm’s WWL profile may be found here.

Nominees for WWL are selected based upon a comprehensive, independent survey of both general counsel and private practice lawyers worldwide. Only specialists who have met stringent independent research criteria are listed. The publication features leading corporate immigration attorneys who come highly regarded for their experience in assisting corporate entities navigate the increasingly complex regulatory environments in jurisdictions around the world through sophisticated immigration planning and counseling advice.

Congratulations to Claire, James, Phyllis, and Wendy!

© Jewell Stewart Pratt Beckerson & Carr PC 2024

JSP is now JSPBC!

Hearty congratulations to Chris Beckerson and Jennifer Carr, who are now named partners of the firm.

© Jewell Stewart Pratt Beckerson & Carr PC 2024

USCIS issues Final Rule on H-1B cap registration process

On Friday, February 2, 2024, U.S. Citizenship & Immigration Services (USCIS) published a Final Rule in the Federal Register that will bring significant changes to the annual H-1B cap selection process (89 FR 7456). The Final Rule is based on a Notice of Proposed Rule Making (NPRM) for H-1B modernization published on October 23, 2023 (88 FR 72870).  Although the NPRM included several H-1B modernization measures, the Final Rule is solely about H-1B cap selection.  The other proposals in the NPRM are expected to be the subject of a separate Final Rule at a later date.

The Final Rule on H-1B cap selection changes will take effect on March 4, 2024, just prior to the opening of the upcoming H-1B cap registration window on March 6. The Final Rule will make the upcoming and future H-1B cap selection processes “beneficiary-centric.”  Details follow.

Making H-1B cap selection lottery “beneficiary-centric”

The Final Rule bases the H-1B cap selection process on unique beneficiaries rather than unique registrations. It is hoped that this will reduce the incentive for employers and individuals to pursue registrations without the existence of a bona fide job offer. Multiple employers may register the same beneficiary, assuming each has a bona fide job for them.  If a beneficiary registered by multiple employers is selected in the H-1B cap lottery, each employer will receive a selection notice and may file an H-1B petition based on their bona fide job offer that the beneficiary intends to accept -- for example, two employers each offering part-time work to the beneficiary. The Final Rule does not bar related entities from registering the same beneficiary, so long as there is a legitimate business need for those related entities to file multiple H-1B petitions for the same beneficiary.

The key principles in the Final Rule are that a beneficiary will be entered only once in the lottery regardless of the number of employers registering the beneficiary, and that a bona fide job offer must underlie each registration.

To enforce the limit of one H-1B cap selection per beneficiary, beneficiaries will be identified not only by the same information used currently, but also by their passport data (or travel document data if the beneficiary is a refugee or stateless and therefore cannot obtain a passport). Passport or travel document data will be required in all cases. In addition, with limited exceptions, the beneficiary must use the same passport or travel document in the registration that they will use to enter the United States on their future H-1B visa. If an individual has more than one passport or travel document, only one may be used for H-1B cap registration.

Jewell Stewart & Pratt will watch for developments related to the other H-1B modernization proposals that are not yet final and will post updates here as they occur.

© Jewell Stewart & Pratt PC 2024

Government visits to H-1B and L-1 workplaces continue in the hybrid/remote work era

In prior blog posts we have drawn attention to U.S. Citizenship & Immigration Services (USCIS) making unannounced site visits to workplaces where H-1B or L-1 workers are employed and other measures the agency uses to detect H-1B fraud. Officers make such visits to gather information about employers’ compliance with the H-1B and L-1 programs. Employers agree to site visits when signing Form I-129, “Petition for Nonimmigrant Worker,” which states that “supporting evidence submitted may be verified by USCIS through any means determined appropriate… including but not limited to, on-site compliance reviews.” That said, site visits are voluntary, and it is a best practice for clients to discuss with their immigration attorney whether they should participate in such visits.

USCIS information about site visits can be found on its website. It is important to note that, in this era of remote and hybrid work, government officers do not consider themselves limited to visiting employer premises (or the office of their client if the beneficiary is assigned to one): they may also visit H-1B or L-1 workers at their home offices. Indeed, immigration attorneys and their clients have reported such visits taking place.

Site visits are usually conducted without notice, complete in less than an hour, and consist of up to three stages: a meeting with a staff member of the employer, a look at the premises, and a meeting with the employee beneficiary of the visa petition. The purpose of the visit is to verify the employer’s existence, the validity of the information in the visa petition, and whether the foreign national is complying with the terms of the petition. The inspector may ask for documentation to compare with the information in the visa petition and may wish to address any inconsistencies discovered.

A visit to a home office may necessarily differ from a visit to the employer’s premises, but the following response is suggested as a best practice in all cases. First, in the event of a site visit, employers and/or employees should request the name, title, and contact information of the site investigator, and contact their immigration attorney immediately. Though most visits are unannounced and USCIS will not reschedule a visit to accommodate counsel, counsel is allowed to be present during a site visit and might be permitted to participate via phone. If counsel cannot attend, the employer should write a detailed description of what happened to be shared with counsel afterwards. It is advised that employers and employees not speak with government agents or contractors without a witness present.

Employers should also be aware of state requirements related to immigration worksite enforcement. A place to start, and for past information on California state requirements, is our blog post here.

© Jewell Stewart & Pratt PC 2024

H-1B "cap" registration dates announced for 2024 (FY 2025)

On January 30, 2024, 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 also announced the publication of its H-1B Registration Final Rule, intended to implement the proposed beneficiary-centric selection process for H-1B registrations, provide start date flexibility for certain H-1B cap-subject petitions, and implement additional integrity measures related to H-1B registration. A blog post on this subject will be forthcoming shortly.

In its announcement on the H-1B cap registration window, USCIS stated that the registration period will open at 9:00am PT / 12:00pm ET on March 6, 2024 and will close at 9:00am PT / 12:00pm ET on March 22, 2024. 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, 2024.

USCIS also stated that it will launch the previously announced new organizational accounts that will allow multiple people within an organization and their legal representatives to collaborate on and prepare H-1B registrations, H-1B petitions, and any associated Form I-907. Further blog entries on this will be posted as information becomes available.

© Jewell Stewart & Pratt PC 2024

USCIS adopts new fee schedule effective April 1, 2024

Updated March 28, 2024

On January 30, 2024, U.S. Citizenship & Immigration Services (USCIS) announced that it had published a final rule to adopt a new filing fee schedule. This is the first new fee schedule issued by USCIS since 2016. In its Frequently Asked Questions page USCIS has posted a New Fee Schedule Table that lists the old and new fees side by side. Changes of interest include:

• A new “asylum program fee” of $600 per I-129 petition and I-140 petition. (Nonprofits and universities are exempt from this fee.)

• An attempt to mitigate higher fees for employers by offering special discounts for small employers; for example, a reduced “asylum program fee” of $300. “Small employer” means those with 25 or fewer full-time equivalent employees.

• A $50 discount for those who choose online filing over paper filing, when online filing is offered. 

• Premium Processing Service timeframes will be counted in business days, not calendar days as before.

• Separate fees are established for Form I-129, Petition for a Nonimmigrant Worker, depending on the nonimmigrant classification sought (i.e. H-1B, TN, E-3, etc.).

• Separate filing fees will be required for Form I-131 (travel document) and Form I-765 (employment authorization) when filed with Form I-485 (adjustment of status), whether or not they are filed together.

The new fees and rules will become effective on April 1, 2024. There are increases in all application and petition types typically filed in employment-related cases, including Form I-129, petition for nonimmigrant worker; Form I-539, application for change or extension of status; Form I-140, petition for immigrant worker; Form I-485, application to register permanent resident status or to adjust status; and Form I-765, application for employment authorization document.

USCIS warns that applications and petitions postmarked or filed on or after April 1, 2024 must include these new fees. If the new fees are not included with such a submission, it will be rejected.

In addition, revised forms will also become effective on April 1, 2024, along with the new fees. USCIS says it will accept prior editions of most forms during a grace period from April 1, 2024, through June 3, 2024, as long as they are accompanied by the new fee. However, there will be no grace period for some forms, including Form I-129 and Form I-140, because they must be revised with a new fee calculation. Filers must be careful to use the correct forms in each case, as well as to include the correct filing fee.

Government processing of immigration applications and petitions is funded by these user fees and not by taxpayer dollars. These filing fee increases, which in some cases are significant, reflect USCIS's calculation of increases in the work associated with case adjudications and avoiding backlogs.

© Jewell Stewart & Pratt PC 2024

Update on Visa Interview Waivers

On December 21, 2023, the Department of State (DOS) announced an updated visa interview waiver policy, which took effect on January 1, 2024.  The policy both expands and limits the policy that was in place for 2023 and is in place until further notice. 

Under the updated policy, visa interviews may now be waived for 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; and

• Are applying within 48 months of their most recent nonimmigrant visa’s expiration date (including renewing a nonimmigrant visa in the same classification).

Note that the interview waiver policy now covers all nonimmigrant visas, vs. certain petition-based categories.  However, note that for applicants whose only prior visa was a B-1, or for first time visa applicants who are citizens of Visa Waiver Program countries, interview waiver is no longer available.   

 Additional applicant criteria include:

• Application is in their country of nationality or residence (physical presence is required).

• Applicant has never been refused a visa (unless such refusal was overcome or waived).

• Applicant has no apparent or potential ineligibility.

Even if an interview is waived, applicants must complete all other application steps such as completing a DS-160, paying the visa application fee, completing the steps on the relevant Embassy or Consulate’s visa appointment service website, and couriering the relevant documents as required.  Applicants are also reminded that in-person interviews may still be required on a case-by-case basis or in light of local conditions. 

 © Jewell Stewart & Pratt PC 2024

Premium Processing Service Fees to Increase on February 26, 2024

On December 27, 2023, the Department of Homeland Security (DHS) published a rule to adjust the premium processing service (PPS) fees as follows:

• Form I-129 (H, L, E, O, TN, etc.) - increase from $2,500 to $2,805

• Form I-140 - increase from $2,500 to $2,805

• Form I-539 (F, M, J) - increase from $1,750 to $1,965

• Form I-765 (certain F-1 students) - increase from $1,500 to $1,685

Under this new rule, all requests for PPS postmarked on or after February 26, 2024, must include the new applicable fee. This fee adjustment is not accompanied by any form changes and is being increased via the USCIS Stabilization Act (2020) which allows USCIS to adjust fees on a biennial basis.

© Jewell Stewart & Pratt PC 2024

Stateside visa renewal pilot to begin January 29, 2024

Updated January 30, 2024

On December 20, 2023, the Department of State (“DOS”) issued a Federal Register notice announcing that the highly anticipated stateside visa renewal pilot will begin on January 29, 2024, and end on April 1, 2024. The goal of the pilot is to test the agency’s technical and operational ability to resume domestic visa renewals for certain nonimmigrant visa categories and to study the effect of this program on reducing visa wait times worldwide. The pilot will be limited to certain H-1B applicants who previously applied for visas at Mission Canada or Mission India.    

Pilot program requirements, application process, and timing details follow.

Applicant Pilot Program Requirements

To be eligible for stateside visa renewal, the applicant must:

• Seek to renew an H-1B visa during the pilot phase between January 29, 2024 and April 1, 2024 (H-4 dependents are excluded from the pilot); 

• Seek to renew a prior H-1B visa issued by Mission Canada between January 1, 2020 and April 1, 2023, or by Mission India between February 1, 2021 and September 30, 2021; 

• Not be subject to a nonimmigrant visa issuance (reciprocity) fee; 

• Be eligible for an in-person interview waiver; 

• Have submitted ten fingerprints to DOS in connection with a prior visa application; 

• Not have a “clearance received” annotation on their prior visa; 

• Not have a visa ineligibility that would require a waiver prior to issuance; 

• Have an approved and unexpired H-1B petition (Form I-797), have been admitted to the U.S. in H-1B status, and is maintaining H-1B status in the United States; 

• Have an unexpired period of authorized admission in H-1B status; and

• Intend to reenter the U.S. in H-1B status after a temporary period abroad.  

Application Process

To complete the application, applicants must complete and submit the Online Nonimmigrant Visa Application Form DS-160 using “U.S.-Domestic” as their location. They will then go to the DOS domestic renewal portal. From there applicants navigate a tool that will assist them in determining their eligibility for participation. Applicants will then be directed to the following Mission-specific links for instructions on paying the non-refundable, non-transferable Machine-Readable Visa (MRV) fee by major debit or credit card, and the address to mail their passports and the required documents for processing:

• Mission Canada domestic renewals: https://ais.usvisa-info.com/en-us

• Mission India domestic renewals: https://www.ustraveldocs.com/in/en/renewal-h1b-niv-in-us

Important note: While the navigator tool will help determine whether an applicant is qualified for the pilot, it is possible an application will be returned if it transpires that the system failed to screen out an unqualified applicant. The MRV fee will not be refunded in any case.

Under the pilot each applicant must provide the following: 

• A properly completed and filed DS-160, Online Nonimmigrant Visa Application; 

• One photograph, taken within the last six months, that meets DOS specifications;

• A passport valid for travel to the United States, which is valid for at least six months beyond the visa application date, and contains a blank, unmarked page for placement of a visa foil;

• A valid H-1B approval notice (Form I-797 Notice of Action, original or copy); and

• Form I-94 Arrival-Departure Record (original or copy).

Evidence of U.S. residency or international travel plans are not required in the initial application filing but may be requested by DOS at a later date.

Application Time Periods and Processing Times

DOS will begin accepting online applications for this pilot starting January 29, 2024 via the online portal. Each week DOS will release approximately 2,000 application slots for those applicants whose most recent H-1B visa was issued by Mission Canada and approximately 2,000 application slots for those applicants whose most recent H-1B visa was issued by Mission India. The application process will close when all slots are filled, or on April 1, 2024, whichever comes first.

The dates of release will be as follows: 

• January 29, 2024 

• February 5, 2024 

• February 12, 2024 

• February 19, 2024 

• February 26, 2024 

Applications will be considered in the order they are received. No status on the application will be provided other than returning of the application, or issuance or refusal of the visa. Applications can check the status of their application via CEAC.

According to DOS the average processing time is expected to be 6-8 weeks from the time the passport and documents are received by DOS. DOS intends to complete processing of all applications by no later than May 1, 2024. Any incomplete applications will be refused. After May 1, 2024, no refusal will be overcome, because the pilot program will be closed.  

Issued visas, passports, and documents submitted will be returned to the applicant via USPS or a courier service.

Application Refusals and Withdrawals

If an application is accepted for adjudication but subsequently found to be ineligible, the visa application will be refused under Immigration & Nationality Act section 221(g). In these cases, applicants seeking to continue pursuit of a visa will have to start a new application at an overseas post.

No requests for expedited processing will be accepted. If an applicant applies for domestic visa renewal and requires urgent travel, they may withdraw their application and request, through the online portal, that their passport be returned to them.  

Visa Issuance is not a Status Extension 

Applicants are reminded that visa issuance is NOT a grant of nonimmigrant status and does not constitute an extension of nonimmigrant visa status or an admission to the United States. A visa only permits an applicant to seek admission at a U.S. port of entry after overseas travel.

DISCLAIMER

The information contained in this overview is intended to educate readers generally and is not intended as, nor should it be taken as, legal advice in any specific case. For specific legal advice, the reader should seek an individualized consultation with competent legal counsel of their own choosing.

© Jewell Stewart & Pratt PC 2024