In a recent Bloomberg Law article discussing what 2019 has in store on the immigration front, Liz Stern remarks on the changing landscape of business immigration as USCIS challenges and narrows the definition of the H-1B specialty occupation visa category. Although comprehensive immigration reform is not likely, Stern anticipates more litigation as businesses become increasingly frustrated with the shift in adjudication patterns, new regulations, and changes to specific immigration categories and benefits. For more on what’s in store in the new year, read the article.
BREAKING NEWS: USCIS Reaches FY 2019 Cap
USCIS announced today, April 6, 2018, that it has reached the congressionally-mandated 65,000 H-1B visa cap for fiscal year 2019, as well as a sufficient number of H-1B petitions to meet the 20,000 visa U.S. advanced degree exemption, known as the “master’s cap.” Our Legal Update from April 5, 2018, included below, advises employers on how to prepare for the next stage – selection or rejection notices, and, for selected cases, potential RFEs.
The current administration has made US immigration policy a central focus of its “America First” stance, imposing de novo review of all visa petitions; refusing H-1Bs for an increasing volume of early-career IT workers; suspending expedited, premium processing options for H-1B filings; imposing record volumes of Requests for Evidence and audits on employers sponsoring H-1B and L-1 workers; and rolling out an aggressive fraud review process for IT staffing suppliers. In a Legal Update, Mayer Brown’s Liz Stern, Max Del Rey, and Anthony Tran advise on how to proceed during this disruptive time, when employers must be more prepared than ever.
The demand for H-1B (specialty occupation) visas normally exceeds the annual 85,000 visa cap by two to three times, thus triggering a random lottery for the available visas. Existing United States Citizenship and Immigration Services (USCIS) regulations prohibit the filing of multiple H-1B visa petitions that are subject to the annual cap for the same individual by an employer or a “related entity,” unless the related entity filing is justified by a legitimate business need. The purpose of the regulation is to prevent employers from trying to increase their chances of winning the H-1B cap lottery by submitting multiple petitions for the same individual for substantially the same position. The penalty for violation of the regulation is denial or revocation of all petitions for the common beneficiary.
For the second year in a row, US Citizenship and Immigration Services (USCIS) announced that it will temporarily suspend premium processing for the upcoming fiscal year’s H-1B petitions, for which filings may be accepted as of April 2, 2018:
Starting April 2, 2018, USCIS will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2019 cap. We will temporarily suspend premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher.
USCIS’s premium processing service guarantees 15 calendar day processing to those petitioners or applicants who choose to use this service, or USCIS will refund the Premium Processing Service fee. If the fee is refunded, the relating case will continue to receive expedited processing. Continue Reading USCIS Suspends Premium Processing for H-1B Cap-Subject Petitions Twelve Days before Annual Lottery Commences
As the debate over immigration reform continues, the Society of Human Resource Management (SHRM) looks to Liz Stern to provide commentary on the merits of the Immigration Innovation Act, a bill designed to better manage the H-1B program.