Immigration Blog Luba Smal Attorney at Law - Smal Immigration Law Office

H-1B Visa Cap Gap New 2025 Rule Expands Work Authorization for F-1 Students

4/2/2025

On December 18, 2024, the Department of Homeland Security (DHS) introduced the H-1B Modernization Rule, which took effect on January 17, 2025, and is still in effect. This rule brings a significant change to the F-1 cap-gap extension, offering greater flexibility for foreign F-1 students transitioning to H-1B status.

What Is the F-1 Cap-Gap Extension?
The F-1 cap-gap extension is a regulatory provision that bridges the gap between the expiration of an F-1 student’s Optional Practical Training (OPT) or STEM OPT and the start of their H-1B status. Under the previous rule, this extension ended on October 1st. However, with the new 2025 rule, the extension can now continue until as late as April 1st of the following calendar year, providing up to six additional months of valid status and work authorization.

Who Qualifies for the Extended Cap-Gap?
To be eligible for this extension, F-1 students must:

Be the beneficiary of a timely filed H-1B petition requesting a change of status (not consular processing); and
Be in a valid period of OPT/STEM OPT at the time the application is received by USCIS.

Benefits for Employers and F-1 Students
This extension reduces the need for finding interim solutions for employment authorization or navigating periods of unpaid leave.

H1B Visa Domestic Issuance Pilot Program January 19-April 1 2024

1/5/2024

We posted about this new Pilot program last year here.

It is expected to run between January 29 and April 1, 2024.

Currently, all visa holders are required to travel to consulates abroad to renew the visa stamps on their passports. The pilot program aims to alleviate massive backlogs and wait times at the consulates abroad.
The Department of State’s initial Domestic Visa Renewal Pilot program will run from January 29, 2024, through April 1, 2024. Applicants who meet the requirements may choose to participate during the application window by applying online. Currently, the program will only service H-1B holders (not their dependents) to limit the scope of applicants during this initial trial period. To control the number of applications received, each week, the Department will release approximately 2,000 application slots for applicants whose most recent H-1B visas were issued by Mission Canada and about 2,000 application slots for those whose most recent H-1B visas were issued by Mission India (about 4,000 total each week) on the following dates:

January 29,
February 5,
February 12,
February 19, and
February 26.

Once the limit is reached, the online portal will be locked until the next tranche of slots is released for each participating Mission group on the next application date. The application period will close when all application slots are filled or on April 1, 2024.
Requirements for Participation
Applicants may participate if they

are seeking to renew an H-1B visa; during the pilot phase, the Department will not process any other visa classifications;
have a prior H-1B visa that is being renewed was issued by Mission Canada with an issuance date from January 1, 2020, through April 1, 2023; or by Mission India with an issuance date of February 1, 2021, through September 30, 2021;
are not subject to a nonimmigrant visa issuance fee (Note: this is commonly referred to as a “reciprocity fee”);
are eligible for a waiver of the in-person interview requirement;
have submitted ten fingerprints to the Department in connection with a previous visa application;
do not have a prior visa that does not include a “clearance received” annotation;
do not have a visa ineligibility that would require a waiver before visa issuance;
have an approved and unexpired H-1B petition;
were most recently admitted to the United States in H-1B status;
are currently maintaining H-1B status in the United States;
do not have a period of authorized admission in H-1B status that has expired, and
intend to reenter the United States in H-1B status after a temporary period abroad.

Applicants will complete a series of questions in the self-assessment tool to help applicants determine if they qualify under the above criteria. Qualified applicants will then complete the DS-160 and pay the MRV fee. Applicants will then be provided with an address to send their documents for processing, including one passport-style photograph, their original passport, a copy of the current I-797 approval notice, I-94, and receipt of fee payment. Note that the self-assessment tool to determine eligibility is only capable of screening out some unqualified applicants. If an applicant is determined unqualified after paying the MRV fee, their payment will NOT be refunded.
The Department of State expects visa processing to take 6-8 weeks, with all applications completed by May 1, 2024. Urgent travel applicants are encouraged to apply for a visa at the consulate in their home country.

New Pilot Program for H-1B Work Visa Renewal for Canada and India Begins January 29, 2024

12/21/2023

The Department of State (DOS) just announced a pilot program to resume domestic visa renewal for certain H-1B visa holders. The pilot program will accept applications from January 29, 2024, to April 4, 2024, and it is limited to the renewal of certain H-1B visas issued by DOS consular offices in Canada and India.
DOS discontinued domestic renewal of non-diplomatic nonimmigrant visas in 2004. DOS explained that the goal of the program is to test DOS’ technical and operational ability to resume domestic visa renewals for specific nonimmigrant visa classifications and to assess the efficacy of this program in reducing worldwide visa wait times. DOS explained that the pilot program is limited to those who received visas from consular posts in Canada and India in an effort to provide meaningful results without overwhelming resources as that population of applicants is representative of the larger global population.
Only H-1B visa holders are included in the pilot program. DOS explained that including other visa categories, including H-4 dependents, created additional challenges that could not be resolved before the pilot launch date. DOS will continue to develop processes to adjudicate additional visa categories concurrent with the pilot, leveraging real-time data and feedback.
Who is Eligible?
Participation in the pilot program is limited to applicants who(se):

Prior H-1B visa was issued by consular offices in Canada with an issuance date from January 1, 2020, through April 1, 2023; or in India with an issuance date of February 1, 2021, through September 30, 2021;
Are not subject to a nonimmigrant visa reciprocity fee;
Are eligible for a waiver of the in-person interview requirement;
Have submitted ten fingerprints to the Department in connection with a previous visa application;
Prior visa does not include a “clearance received” annotation;
Do not have a visa ineligibility that would require a waiver;
Have an approved and unexpired H-1B petition;
Were most recently admitted to the United States in H-1B status;
Are currently maintaining H-1B status in the United States;
Period of authorized admission in H-1B status has not expired; and
Intend to reenter the United States in H-1B status after a temporary period abroad.

Application Process
DOS will begin accepting applications on January 29, 2024, via https://travel.state.gov/content/travel/en/us-visas/employment/domestic-renewal.html. To control the number of applications received, DOS will release 4,000 application slots each week starting January 29, with 2,000 slots for H-1B visas issued in Canada and 2,000 slots for H-1B visas issued in India. Applicants must submit an online DS-160 application and pay a non-refundable $205 MRV fee via major debit or credit card. Applicants will receive instructions through the portal on where and how to send their passport and other required documents.
Required documents include: the electronically filed DS-160, passport (valid for at least 6 months beyond visa application date with at least one blank unmarked page), one photo which meets specifications, original or copy of current I-797 approval notice, and original or copy of I-94 (available on I-94 website or on Form I-797). As the instructions allow an “original or copy” of the I-797, applicants may wish to only send a copy of the I-797 so they retain that document for future travel and I-9 purposes.
The average processing time is expected to be six to eight weeks from the time the passport and other required documents are received by the DOS. DOS aims to complete the processing of all applications no later than May 1, 2024. DOS will not consider requests for expedited processing. Those who need to travel urgently may withdraw their application and request that their passport be returned.

USCIS Reached H-1B Visa Cap for 2024

12/13/2023

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) 2024.
USCIS will send non-selection notices to registrants through their online accounts over the next few days. When we finish sending these non-selection notifications, the status for properly submitted registrations that we did not select for the FY 2024 H-1B numerical allocations will show:
-- Not Selected: Not selected – not eligible to file an H-1B cap petition based on this registration.
USCIS 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 2024 H-1B cap.

USCIS 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.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations. We encourage H-1B petitioners to subscribe to the H-1B cap season email updates by visiting the H-1B Cap Season page.

Domestic H-1B Visa Renewal to Begin in 2024

10/24/2023

On October 17, 2023, the U.S. Department of State initiated the process for resuming its stateside visa renewal program. The State Department sent a Federal Register notice, Pilot Program to Resume Renewal of H-1B Nonimmigrant Visas in the United States for Certain Qualified Noncitizens, for review to the U.S. Office of Information and Regulatory Affairs. The details of the pilot program will be disclosed only when the Federal Register is published. However, early reports indicate that the program likely will:

Start in early 2024;
Be available only for H-1B principals;
Be available only for nationals of countries that are not subject to reciprocity fees;
Have eligibility requirements similar to the interview waiver program;
Be limited to 20,000 applicants; and
Be voluntary.

The State Department plans to limit the program at first to test out its operability and expand it after potential issues have been addressed.

Employment Authorization in Compelling Circumstances

6/21/2023

On June 14, 2023, U.S. Citizenship and Immigration Services (USCIS) released its policy guidance on the eligibility criteria for initial and renewal applications for employment authorization documents in compelling circumstances based on existing regulatory requirements at 8 C.F.R §204.5(p).
Specifically, for an applicant to be eligible for an initial employment authorization document (EAD) based on compelling circumstances, the applicant must meet the following requirements:

The principal applicant is the beneficiary of an approved I-140, Immigrant Petition for Alien Worker in the 1st, 2nd, or 3rd employment-based preference category;
The principal applicant is in valid E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status or authorized grace period when the applicant files Form I-765, Application for Employment Authorization;
The principal applicant has not filed an adjustment of status application;
An immigrant visa is not available to the principal applicant based on the applicant’s priority date according to the Final Action Date Chart in U.S. Department of State’s Visa Bulletin when the Form I-765 is filed;
The applicant and their dependents provide biometrics as required;
The applicant and their dependents have not been convicted of a felony or two or more misdemeanors; and
USCIS determines, as a matter of discretion, the principal applicant demonstrates compelling circumstances that justify the issuance of employment authorization.

The guidance from USCIS provides a non-exhaustive list of situations that could lead to a finding of compelling circumstances for principal applicants and their defendants. Some of them include: serious illness and disability, employer dispute and retaliation, other substantial harm to the applicant, or significant disruption to the employer.

This guidance also provides details on the type of evidence an applicant may submit to demonstrate one of the outlined compelling circumstances. A principal applicant who has an approved I-140, but to whom an immigrant visa is not available and who has lived in the United States for a long period of time, could provide evidence such as school or higher education enrollment records, mortgage records, or long-term lease records to support a finding of compelling circumstances. As an example, a compelling circumstance could be found where due to a job loss, the principal applicant’s family would be forced to sell their home for a loss, pull their children out of school, and relocate to their home country.

Recipients of a compelling circumstances EAD will be in a period of authorized stay in the U.S. and will not be maintaining their nonimmigrant status. Thus, recipients cannot extend their H-1B status in the U.S.

Read more here and here.

H-1B and L-1 Visas to to Issued in the USA Pilot Program

3/1/2023

It has been reported that the U.S. Department of State is offering the return of stateside H-1B and L-1 nonimmigrant visa renewal processing.

This process is in the regulatory framework of the department and presently available to only diplomats and NGOs. It stopped full operations in 2004.

H-1B visas are for professional specialty occupation foreign workers across industries and occupations. This visa allows employers to add professional and specialized workers for two three-year periods with further extension period available to those with approved green card petitions waiting limited immigrant visa availability.

Employers seek L-1 visas for foreign nationals who work as employees for a related corporate entity overseas. They are selected for transfer based on their experience and credentials to work for the U.S. related entity as executives, managers or specialized knowledge workers. The L-1 is limited to a five- to seven-year period.

The State Department has not announced any details about the restored stateside service. The agency must set up an entire processing structure to adjudicate the anticipated volume. In the past, specific documents were submitted for processing; they included the DS-160 form, a money order, a passport valid six months beyond the visa petition expiration date, the I-797 Notice of Approval, and an employment verification letter by the U.S. employer with W-2s and pay statements.

It is expected similar documents will be required under the restored program.

This pilot is expected to start later this year and only for limited kinds of nonimmigrant visas at this time.

Immigrant Visa 60-Day Ban Extended to Nonimmigrant Visas to The End of 2020

6/22/2020

On Monday, June 22, 2020, the Trump administration said that it was extending a ban on Immigrant Visas aka "green cards" issued outside the United States until December 31, 2020, and adding many nonimmigrant and work visas to the ban, including those used heavily by technology companies and multinational corporations (H-1B, L) and also H-2B, J-1.

The administration explained this ban a way to free up jobs in an economy reeling from the coronavirus. The ban is in effect since April 23, 2020. Original ban was for 60 days. New ban is valid until December 31, 2020.

The ban on new visas applies to H-1B visas, which are used by major American technology companies, and their immediate families, H-2B visas for nonagricultural seasonal workers, J-1 visas for exchange students and L-1 visas for managers of multinational corporations. There will be exemptions for food processing workers, which make up about 15% of H-2B visas.

The administration is proposing a new way of awarding H-1B visas, which are capped at 85,000 a year. The administration wants to award them by highest salary instead of by lottery.

Text of the June 22, 2020 Proclamation is here.

.........................
Section 1. Continuation of Proclamation 10014. (a) Section 4 of Proclamation 10014 is amended to read as follows:
“Sec. 4. Termination. This proclamation shall expire on December 31, 2020, and may be continued as necessary. Within 30 days of June 24, 2020, and every 60 days thereafter while this proclamation is in effect, the Secretary of Homeland Security shall, in consultation with the Secretary of State and the Secretary of Labor, recommend any modifications as may be necessary.”
(b) This section shall be effective immediately.
Sec. 2. Suspension and Limitation on Entry. The entry into the United States of any alien seeking entry pursuant to any of the following nonimmigrant visas is hereby suspended and limited, subject to section 3 of this proclamation:
(a) an H-1B or H-2B visa, and any alien accompanying or following to join such alien;
(b) a J visa, to the extent the alien is participating in an intern, trainee, teacher, camp counselor, au pair, or summer work travel program, and any alien accompanying or following to join such alien; and
(c) an L visa, and any alien accompanying or following to join such alien.
Sec. 3. Scope of Suspension and Limitation on Entry. (a) The suspension and limitation on entry pursuant to section 2 of this proclamation shall apply only to any alien who:
(i) is outside the United States on the effective date of this proclamation;
(ii) does not have a nonimmigrant visa that is valid on the effective date of this proclamation; and
(iii) does not have an official travel document other than a visa (such as a transportation letter, an appropriate boarding foil, or an advance parole document) that is valid on the effective date of this proclamation or issued on any date thereafter that permits him or her to travel to the United States and seek entry or admission.
(b) The suspension and limitation on entry pursuant to section 2 of this proclamation shall not apply to:
(i) any lawful permanent resident of the United States;
(ii) any alien who is the spouse or child, as defined in section 101(b)(1) of the INA (8 U.S.C. 1101(b)(1)), of a United States citizen;
(iii) any alien seeking to enter the United States to provide temporary labor or services essential to the United States food supply chain; and
(iv) any alien whose entry would be in the national interest as determined by the Secretary of State, the Secretary of Homeland Security, or their respective designees.
..........

Read here.

Here and here.

How to Check a Non-Immigrant Visa Appointment Wait Times at U.S. Embassies and Consulates?

1/10/2019

How to Check a Non-Immigrant Visa Appointment Wait Times at Different U.S. Embassies and Consulates Around the World?

If you plan to apply for a nonimmigrant visa to come to the United States as a temporary visitor, please review the current wait time for an interview using the tool at the link below. Examples of nonimmigrant visas: student F-1, visitor B-1/B-2, exchange visitor J-1, H-1B, L visa, etc.

Please note that K-1 fiancee visa is a nonimmigrant visa which has its own scheduling system because it is processed at the Immigrant Visa Unit of the U.S. embassy or consulate.

Click here for visa appointment times.

To schedule a consultation with an attorney, please email.

F1 to H1B Cap-Gap Status and Work Authorization Extension Valid Only to Sep 30 2018

9/30/2018

F-1 students who have an H-1B petition that remains pending on Oct. 1, 2018, risk accruing unlawful presence if they continue to work on or after Oct. 1 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization is only valid through Sept. 30. USCIS may not be able to adjudicate H-1B change of status petitions for all F-1 students by October 1, 2018.

USCIS regulations allow an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on Oct. 1, to have his or her F-1 status and any current employment authorization extended through Sept. 30. This is referred to as filling the “cap-gap”, meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur. The “cap-gap” period starts when an F-1 student’s status and work authorization expire, and they are extended through Sept. 30, with Oct. 1 being the requested start date of their H-1B employment, unless otherwise terminated or the H-1B petition is rejected or denied prior to October 1, 2018.

While the temporary suspension of premium processing of certain types of H-1B petitions has allowed USCIS to prioritize the adjudication of these cap-gap cases, if a cap-gap H-1B petition remains pending on or after October 1, 2018, the F-1 student is no longer authorized to work under the cap-gap regulations. However, the F-1 student generally may remain in the United States while the change of status petition is pending without accruing unlawful presence, provided they do not work without authorization. If an F-1 student with a pending change of status petition has work authorization (such as an I-765 with valid dates) that extends past Sept. 30, they may continue to work as authorized.

Premium Processing Fees Increase and Temporary Suspension

9/13/2018

Effective October 1, 2018, Department of Homeland Security will increase the premium processing fee charged by USCIS from $1,225 to $1,410.

USCIS is authorized to charge a premium processing fee for certain employment-based petitions and applications. Premium processing allows filers to request 15-day processing of certain employment-based immigrant benefit requests if they pay an extra amount. Currently, premium processing is authorized for certain petitioners filing Form I-129 Petition for a Nonimmigrant Worker, or Form I-140 Immigrant Petition for Alien Worker.

While premium processing is temporarily suspended for H-1B through February 19, 2019, petitioners may submit a request to expedite an H-1B petition if they meet one of the following Expedite Criteria and are prepared to submit documentary evidence to support their expedite request:

Severe financial loss to company or individual
Emergency situation
Humanitarian reasons
Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States
Department of Defense or national interest situation submitted by an official U.S. government entity and that delay will be detrimental to the government
USCIS error
Compelling interest of USCIS

This temporary suspension of premium processing does not apply to any other nonimmigrant classifications filed on Form I-129.

With respect to H-1B petitions, USCIS has suspended premium processing for both cap-subject petitions and most other H-1B petitions.

Beginning September 11, 2018, and continuing through February 19, 2019, H-1B petitions cannot be filed utilizing premium processing, except for the following types of cases:

Cap-exempt petitions filed with the California Service Center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap-exempt institution, entity, or organization; or
Petitions filed exclusively at the Nebraska Service Center by an employer requesting a “Continuation of previously approved employment without change with the same employer.” (Box b. on Part 2, Question 2, Page 2 of the current Form I-129) with a concurrent request to:
1. Notify the office in Part 4 so each beneficiary can obtain a visa or be admitted. (Box 2 on Part 2, Question 4, Page 2 of the current Form I-129); or
2. Extend the stay of the beneficiary because the beneficiary now holds this status. (Box c on Part 2, Question 4, Page 2 of the current Form I-129).

FY 2019 H-1B Visa Update

4/23/2018

This year USCIS received total of 190,098 cap subject H-1B work visa petitions for the next fiscal year, FY 2019. The annual quota (cap) was reached on April 6, 2018.

--> 94,213 of the H-1B petitions are for general cap (cap is 65,000).
--> 95,885 of the H-1B petitions are master's cap (cap is 20,000).

It will take several weeks for USCIS to complete the H-1B notification process for cases selected in the lottery. USCIS will mail back rejected petitions, filing fees, etc starting from the end of April till July 2018.

USCIS had warned that the petitioners/employers can't file multiple or duplicative H-1B petitions for the same employee. USCIS will deny or revoke multiple or duplicative petitions filed by an employer (including its related entities) for the same H-1B worker and will not refund the filing fees.

Read here.

FY 2019 H-1B Visa Cap Reached on April 6 2018

4/6/2018

USCIS started accepting H-1B work visa petitions for the NEXT 2019 fiscal year on April 2, 2018, and on April 6, 2018 -- the ANNUAL cap has been reached!

It took only 4 days for both caps to be reached: general cap (65,000) and for those with the U.S. advanced degrees (master's cap, 20,000).

USCIS has reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2019. USCIS has also received a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, known as the master’s cap.

USCIS will REJECT and RETURN filing fees for all unselected cap-subject petitions that are not prohibited multiple filings. (Please note: rejection is not a denial).

USCIS 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, will also not be counted toward the FY 2019 H-1B cap.
USCIS 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 a second H-1B position.posted

USCIS announcement.

USCIS Considers Ending H-1B Work Visa Extensions

1/2/2018

The DHS / USCIS is considering new regulations to end the extension of H1-B work visas. The new rule potentially could stop hundreds of thousands of foreign workers from keeping their H-1B visas while their green card applications are pending. It will affect many tech and IT professionals, especially from India and China.

“This would be a major catastrophic development as many people have been waiting in line for green cards for over a decade, have U.S. citizen children, own a home."

“The idea is to create a sort of ‘self-deportation’ of hundreds of thousands of Indian tech workers in the United States to open up those jobs for Americans,” said a source briefed by Homeland Security officials.

“The agency is considering a number of policy and regulatory changes to carry out the President’s Buy American, Hire American Executive Order, including a thorough review of employment-based visa programs,” confirmed USCIS.

UPDATE 01-09-2018:

Under pressure from the business and technology communities, USCIS appears to be backing away from a policy change that could have forced foreign tech workers out of the country. The administration denies they considered abolishing H-1B extensions.

“The agency is considering a number of policy and regulatory changes to carry out the President’s Buy American, Hire American Executive Order, including a thorough review of employment based visa programs,” Jonathan Withington, chief of media relations for USCIS, said Monday.

“What we can say, however, is that USCIS is not considering a regulatory change that would force H-1B visa holders to leave the United States by changing our interpretation of section 104(c) of AC-21, which provides for H-1B extensions beyond the 6 year limit,” the agency told McClatchy. “Even if it were, such a change would not likely result in these H-1B visa holders having to leave the United States because employers could request extensions in one-year increments under section 106(a)-(b) of AC21 instead.”

Pressure against this discriminatory proposal, and explaining to USCIS that the decision would have been illegal and in violation of federal law worked!

Read more here.

#visa #workvisa #H1B #H1Bextension #USCIS #deportation

Read more here.

New Policy: No Deference to Prior Determinations of Eligibility in Petitions for Extension of Nonimmigrant Status

11/3/2017

On October 23, 2017, another long-standing USCIS adjudication policy was reversed. When filing for an extension of the non-immigrant status, for example, H-1B work visa, you should not take for granted any prior approvals. An applicant has to prove his/her eligibility again when applying for an extension of the same status, even if status was approved before. USCIS will no longer defer to prior approvals.

October 23, 2017 Policy Memorandum "Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status" is available at USCIS webportal.

As a result, USCIS made it more difficult for companies to renew H-1B visas for foreign professionals (workers) who work in specialty occupations. Previously, when it was time to renew an H-1B employee’s status, the USCIS gave deference to past H-1B approval decisions. This enabled H-1B visa holders to obtain extensions in a fast and straightforward manner. USCIS recently rescinded (canceled) their old policy memorandum, and now H-1B visa holders who apply for extensions must again prove eligibility as though they are seeking H-1B visas for the first time.

This policy change will impose greater uncertainty, loss of foreign talent (who may choose to migrate to Canada instead), higher costs and delays to companies who rely on foreign talent.

USCIS is directing officers to use the same amount of scrutiny for initial and extension requests, and indicating that the new guidance applies to a variety of employment visas, not just H-1B.

It is expected that employers will be receiving many detailed Requests for Evidence (“RFE”) when H-1B extension requests are filed. These RFEs will increase the administrative and legal burden on employers seeking H-1B visas, and increase the costs.

Effective October 1, 2017, USCIS also imposed a new rule requiring in-person interviews with all employment-based immigrant visa applicants, including spouses and children, which will burden local USCIS offices and increase wait time for all green card categories waiting for an adjustment of status interview.

H-1B visas are valid for a total of six years and are usually issued in three-year increments. To prepare for the new renewal process, H-1B employers should initiate the renewal process far enough in advance to secure an extension before an H-1B employee’s status expires.

USCIS October 23, 2017 memo.

H-1B Work Visa New USCIS Policies April 3 2017: Computer Programming, Fraud Detection

4/10/2017

There have been several important announcements and policy changes concerning H-1B work visa.

First: On April 3, 2017, USCIS announced that it would introduce several new measures with intent of detecting and deterring H-1B visa fraud and abuses. According to an official USCIS press release, USCIS will be conducting site visits to H-1B petitioners and worksites, where

(i) USCIS cannot validate the employer’s basic information through commercially available data;
(ii) H-1B dependent employers (companies with high ratio of H-1B workers as compared to U.S. workers: companies with 25 or fewer full-time employees, more than 7 H-1B workers; companies with 26-50 full-time employees, more than 12 H-1B employees; and companies with 50 or more full-time employees, 15% or more H-1B employees); and,
(iii) employers petitioning H-1B workers who work off-site.

The site visits have been around since 2009. It's not something new. USCIS emphasized that these site visits will be random and unannounced, and are meant to identify companies that abuse the H-1B system.

USCIS established an email address, which allows the public to submit tips, alleged violations and other information about potential H-1B abuse. The employers that are reported via this email address will also become targets for site investigations.

Second:

On March 31, 2017, the U.S. Citizenship and Immigration Services (“USCIS”) issued a new Policy Memorandum made available April 3, 2017, which rescinds the December 22, 2000 memorandum titled “Guidance memo on H1B computer related positions.”

The new policy implements a significant change to the adjudication of H-1B petitions for computer programming positions.

2017 H1B Policy Changes and Updates: The December 22, 2000 memorandum titled “Guidance memo on H-1B computer related positions” provided the policy that most computer programmers had a bachelor’s degree or higher based on information provided by the Occupational Outlook Handbook (“OOH”), which is published by the Department of Labor. Petitioners were usually able to meet their burden of proving a particular position is a specialty occupation, if it were to prove through information provided in the OOH that a baccalaureate or higher degree is normally the minimum requirement for entry into the particular position. By rescinding the policy, USCIS has stated that the OOH is no longer sufficient evidence to prove a particular position in computer programming is a specialty occupation and has thus drastically changed how H-1B petitions for computer programmers are to be adjudicated.

Petitioner's Burden of Proof: The consequence of rescinding the “Guidance memo on H1B computer related positions” is that USCIS has heightened the burden for petitioners. Petitioners may not rely solely on the OOH to prove that a position in computer science is normally required. Rather, USCIS has clarified its position that petitioners must provide additional evidence to establish that the particular position is a specialty occupation as defined by 8 CFR 214.2(h) (4) (ii) for computer programming.

Entry-Level Positions in Computer Related Positions: The Policy Memorandum clarifies that USCIS must determine whether the attestations and content of the LCA correspond to and support the H-1B visa petition. A petitioner’s designation that a position is a Level I, entry-level position “would likely contradict a claim that the proffered position is particularly complex, specialized, or unique compared to other positions within the same occupation.” USCIS is changing a long established tradition, by clarifying that most entry-level positions are not specialized occupations within the computer programmer occupation. This provides a basis to deny many of the now pending petitions, filed in April 2017 for the FY 2018.

Put American Workers First Approach in Tech Companies: It appears restricting H-1B visas is part of the current administration’s attempt to “put American workers first.” As technology continues to grow, the job of a computer programmer was in the top 5 H-1B job titles for the FY 2017 H-1B petitions.

Last Minute Policy Change Published on the First Day of the FY 2018 Filing Period for H-1B: The Policy Memorandum is dated March 31, 2017, but only made available April, 3, 2017, as a result, many of the new H-1B petitions have already been filed following the long-established standards of the now “outdated” USCIS 2000 guidance memo. Employers can now expect to receive RFE (Requests for Evidence) questioning eligibility and requesting additional documentation, and many petitions can be denied.

USCIS allows only 5 days a year in April to file new, cap-subject H-1B petitions for the next fiscal year. In 2016 for FY 2017, 236,000 H-1B visa applicants competed for the 85,000 quota available annually.

@ BCCL 2017. H-1B visa path

USCIS Temporarily Suspends Premium Processing for All H-1B Petitions Effective April 3 2017

3/3/2017

Update: March 05 2017:

Major changes are expected in H-1B work visa program, either by the president's executive order or by the act of Congress, or both. A new bill was introduced in Congress. And DHS had already suspended Premium Processing for all H-1B I-129 applications file on April 3, 2017.

Read a detailed overview here.

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USCIS published the following announcement:

Starting April 3, 2017, USCIS will temporarily suspend premium processing for all H-1B petitions. This suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners will not be able to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification.

We will notify the public before resuming premium processing for H-1B petitions.

Who Is Affected

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. Since FY18 cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.

While premium processing is suspended, we will reject any Form I-907 filed with an H-1B petition. If the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, we will have to reject both forms.

We will continue to premium process Form I-129 H-1B petitions if the petitioner properly filed an associated Form I-907 before April 3, 2017.

Therefore, we will refund the premium processing fee if:

The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
We did not take adjudicative action on the case within the 15-calendar-day processing period.

This temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on Form I-129.

Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and we encourage petitioners to submit documentary evidence to support their expedite request.

As a rule, USCIS may expedite a petition or application if it meets one or more of the following criteria:

Severe financial loss to company or person;
Emergency situation;
Humanitarian reasons;
Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
USCIS error; or
Compelling interest of USCIS.

We review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.

Why We Are Temporarily Suspending Premium Processing for H-1B Petitions

This temporary suspension will help to reduce overall H-1B processing times. By temporarily suspending premium processing, we will be able to:

Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.

Smithsonian Museum is offering an H1B work visa free exhibit online.

1/14/2016

November 25, 2015 marked the 25th anniversary of the H-1B work visa to the United States.

Smithsonian museum is offering an H1B work visa exhibit online which mostly includes art and reflections on life in the USA of those living in the US on H1B work visa and their dependants on H4 visa.

Read more here.

The Smithsonian exhibit can be viewed at this link.

One of the paintings, named "H1B indentured servitude," is here.

How to apply for a work permit, EAD card. Effective May 26, 2015, some H-4 spouses will be eligible to apply for a work permit. NOTE: Not all H-4 are eligible for EAD.

5/20/2015

USCIS has published information to help eligible H-4 dependent spouses to apply for employment authorization (work permit) under the Employment Authorization for Certain H-4 Dependent Spouses final rule.

Note: you can file application for a work permit only on or after May 26, 2015, and you must be eligible to apply.

Application form is USCIS form I-765, and the filing fee is US$380.

Note: it is applicant's burden of proof to provide evidence of your status, your H1B spouse's status and prove that you meet other eligibility requirements. Your application can be delayed or denied if it's incomplete.

Eligibility requirements: you are eligible to apply for a work permit if you are the H-4 dependent spouse of an H-1B nonimmigrant IF your H-1B nonimmigrant spouse:

Is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or
Has been granted H-1B status under sections 106(a) and (b) of the AC21. The AC21 permits H-1B nonimmigrants seeking employment-based lawful permanent residence to work and remain in the United States beyond the six-year limit.

Read here.

Starting May 26 2015, USCIS temporarily suspends premium processing for H-1B extensions in order to implement policy granting EADs (work permits) to H-4 spouses.

5/19/2015

Starting May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B Extension of Stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant.

USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.

This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations.

Read more at http://www.uscis.gov/news/uscis-temporarily-suspends-premium-processing-extension-stay-h-1b-petitions

Reminder: effective May 1, 2015, only a new edition of the USCIS form I-129 is acceptable (application for a work visa).

4/28/2015

Beginning Friday, May 1, 2015 USCIS will accept only the new version (edition date: 10/23/14) of Form I-129, Petition for a Nonimmigrant Worker. The edition date is printed at the bottom of every page.

On or after May 1st 2015, USCIS will reject all previous editions of this form.

Form I-129 is used to apply for many work visas (H1B, R-1, O, L, P, etc).

A new form I-129 can be found at: http://www.uscis.gov/i-129