LawQuest | US Immigration Alert | USCIS Announces Registration Dates for the H-1B CAP Season FY 2024

USCIS Announces Registration Dates for the H-1B CAP Season FY 2024

The U.S. Citizenship and Immigration Services (USCIS) announced on January 27, 2023 that the initial period for FY 2024 H-1B cap registration will open at 12 noon EST on March 1, 2023, and run through 12 noon EST on March 17, 2023. Employers seeking to engage foreign nationals on H-1B visas must complete registrations online.  In addition, it is important to note the following:

  • Petitioners or their representatives must submit registrations via a myUSCIS online account and pay a $10 filing fee for each registration.
  • Employers will not be able to submit registrations after the March 17 deadline. There is no advantage to filing the registrations at the beginning of the registration period but later the system might be overloaded with last-minute registrations.  So, it is best to be prepared to submit the registrations soon after it opens on March 1, 2023.
  • After the registration period, the USCIS will conduct a random lottery if there are more registrations than available visas. Annual H-1B caps continue to be set at 65,000 visas plus an additional quota of 20,000 for individuals with advanced U.S. degree holders.
  • Petitioners will be given a 90-day period beginning April 1, 2023, to file full H-1B petitions for candidates that were selected in the random, post-registration selection.

In the last fiscal year, the USCIS received 484,927 H-1B registrations, the highest in history. We expect that the demand for H-1B visas will continue to be high this cap season, despite the layoffs and signs of an economic slowdown in the U.S.

Please contact Manizeh Mistry at [email protected] or [email protected]QuestInternational.Com if you have questions about the registration process or need assistance with your H-1B CAP selections and/or preparation.

 

LawQuest | US Immigration Alerts | Additional NI Visa Appointments for First Time Applicants, USCIS implementation of Prem Proc Final Stage & Adjudication of I-539 & I-765 applications together

The US Embassy and Consulates in India Introduce More Visa Appointments

There is finally some good news for visa applicants seeking a visa for the first time or those that do not qualify for Dropbox applications.   The United States Embassy in New Delhi and Consulates in Mumbai, Chennai, Kolkata and Hyderabad (collectively known as Mission India) will now be open for regular consular (including visa) operations on certain Saturdays to accommodate applicants who need in-person visa interviews.  These additional working days are likely to run through the next few months.

Additionally, to address the significant post-pandemic backlog in visa processing Mission India has also implemented the following and we are seeing reduced wait times as a result:

  • Remote processing of interview waiver cases for applicants with previous U.S. visas.
  • Temporary Consular Officers from Washington and other Embassies to arrive in India to increase processing capacity between January and March 2023.
  • Increasing the number of Consular Officers permanently assigned to the Embassy and Consulates in India.
  • Released more than 250,000 additional B1/B2 appointments and continue to open more slots in the coming few months.
  • U.S. Consulate, Mumbai also extended its weekday operating hours to manage additional appointments.

By this summer, the U.S. Mission in India is expected to be fully staffed and processing visas at levels from prior to the COVID-19 pandemic.

This will result in a huge relief for visa applicants who have been waiting for several months for visa appointments.  We continue to monitor the situation and will provide further updates as they become available.

USCIS Extends Premium Processing to Additional Categories

The USCIS extends premium processing for newly filed applications under EB-1 and EB-2 petitions. In the earlier phase, this service was only available to already filed I-140 petitions for managers and executives or for those filed for members of Professions holding an Advanced Degree or an Alien of Exceptional Ability. This new phase will come into effect on January 30, 2023.

Further, premium processing will shortly be extended to certain F-1 seeking OPT and STEM OPT extensions and for those applicants who file I-539 Application to Extend/Change their non-immigrant status. This will most likely go into effect in February 2023 after the USCIS makes its final announcement.

Adjudication of L-2 and H-4 Spouse/Dependent Applications Along with the Primary Beneficiary’s Petition

On Friday January 20, 2023, the U.S. government signed off on a settlement of a lawsuit, agreeing to again adjudicate I-539 (extension or change of status applications) and I-765 (work authorization) for H-4 and L-2 dependents, together with the primary beneficiary’s I-129 when these forms are filed together.  It is important to note that if the forms are not filed together, the USCIS is not required to adjudicate them together. This arrangement will take effect on January 25, 2023 and will greatly benefit new applicants, especially when the primary beneficiary’s I-129 petition is filed for premium processing.

 

LawQuest | US Immigration Alert | Geared Up for the Upcoming H-1B Cap Season FY 2024?

Geared Up for the Upcoming H-1B Cap Season FY 2024?

A crucial time of the year is approaching for all those companies looking to sponsor foreign nationals to work in the U.S. on an H-1B visa. For the past three years, the USCIS has been using an online electronic registration and selection system to conduct the H-1B “lottery” if there are more registrations than H-1B visa numbers.

Set out below is a brief description of the process flow and how companies should be prepared for the upcoming cap season.

Registration Process

The electronic registration period on myUSCIS is likely to begin in the first week of March 2023, and U.S. Petitioners/Attorney Representatives will have not more than 2 to 3 weeks to register their potential beneficiaries for the FY2024 H-1B Cap lottery.  Hence, it is important for employers to begin their applicant screening process by December 2022/January 2023 if they have not done so already to allow enough time to gather the required details.

U.S. Petitioners applying for the first time will be required to create an H-1B Registrant account on the myUSCIS website before the registration period begins.

We expect that the process for the upcoming cap season will remain unchanged unless the USCIS announces any modifications in the ensuing months. As in past years, and in view of the continuing shortage of talent in the U.S., we expect that the USCIS will have to run a lottery after the pre-registration process this year as in the last several years. However, the USCIS has the discretion to suspend the registration process at any time if it determines that the registration process is inoperable for any reason.

Deferred registrations may remain pending in the system for the rest of the applicable fiscal year (or until the CAP is reached) in the event that the USCIS needs to select additional registrations, sometime between July and November as they have done on occasion in the past.

H-1B lottery

After the registration period is completed the USCIS will conduct a lottery which is a randomized process. The USCIS will then electronically notify the U.S. Petitioner/Sponsor/Attorney Representatives of these selections by end of March 2023.

H-1B Petition and Visa

After the results of the lottery are out, U.S. Petitioners will have a period of 90 days starting from April 1st to submit H-1B petitions for the selected registrants along with the relevant forms, filing fee, LCA and other supporting documents. The USCIS will then adjudicate the petitions and inform the petitioners/beneficiaries of their decision.

Those petitions that get approved may then proceed to apply for their H-1B visas with a U.S. Consulate and commence working in the U.S. from October 1st onwards or any date thereafter.

Key Takeaways

  • Companies should begin collating a list of employees who they wish to shortlist for an H-1B visa in order to be employed in the U.S. by the end of the year of 2023.
  • Once the prospective candidates have been shortlisted, companies should accumulate necessary information and documents to ensure that the candidates meet the basic requirements which will make them eligible for an H-1B visa to make the registration process easier and faster.
  • Companies should validate certain important basic documents of shortlisted applicants, for e.g. in cases where the applicant’s passport is about to expire within a period of 6 months, the passport must be renewed before the registration period or shortly thereafter.
  • Companies applying for H-1Bs for the first time must complete certain registrations (FEIN and VIBE) before they are ready to file H-1B petitions. Since the DOL is usually swamped with a number of petitioners applying for an LCA, it is common for delays to take place which is why it is imperative to initiate the FEIN registration process with the DOL promptly.
  • LCAs currently take 7 days to be certified. As we get ready to file the H-1B petition, the number of LCAs filed with the DOL is only going to increase, leading to possible delays in LCA approvals.
  • Companies who miss registering its employees during the pre-registration period that will most likely begin in March 2023, there may be no further H-1B visas for FY 2024 and the earliest you could initiate a new H-1B case would be in March 2024 for an employment start date of October 1, 2024.

 

 

Find a job or return to home country? An H-1B visa holder’s guide if they lose their job in the US

Find a job or return to home country? An H-1B visa holder’s guide if they lose their job in the US

The unexpected layoffs of nonimmigrant workers in H-1B and other statuses at Twitter and other tech companies have created an environment of unrest among foreign workers. In view of this, a lot of questions and concerns on preserving one’s status in the U.S. have arisen, as listed below.

1. Upon termination of employment, do non-immigrant visa holders have any grace period to remain in the U.S. and look for a new job or change his/her status?
Yes, most work-related non-immigrant workers are allowed a grace period of 60 days upon cessation of their employment. Until the beginning of 2017, this provision was not available to non-immigrant workers, and hence, they would be considered to be in violation of their status immediately once their employment got terminated.

The 60-day grace period allows the worker more time to leave the United States, and at the same time presents an opportunity to transition to another employer who is willing to file an extension or change of status within the 60-day period.

2. Can foreign nationals who lose their job consider different visa options to remain in the U.S., even if it is for a short time?
Foreign national workers could change their status to another non-immigrant status such as, F-1 student status or B-2 visitor status under further guidance from an attorney.

3. If the worker finds a new employer who is willing to file a new H-1B petition on his behalf, will the worker in this case be subjected to the H-1B cap?
If the foreign national worker has been counted under the H-1B cap within the last 6 years, the new employer can immediately file for his H-1B transfer and does not need to wait for the H-1B cap registration period. Employers can sponsor laid off employees who have been counted in the H-1B cap within the past 6 years as these employees would not be subject to the annual H-1B cap again.

Even foreign workers in H-1B status, who are beneficiaries of approved I-140s in the green card process could be hired by new employers within the grace period. Such employees can seek US employment and render services from outside the US and eventually return to the US once their H-1B petition is approved and they receive a stamped H-1B visa from the US Consulate. A pre-existing H-1B visa may be used in conjunction with the newly approved H-1B petition to return to the U.S.

Although, if the employer wishes to file for a change of status application to H-1B for a laid off L-1 worker within the 60-day grace period, they cannot do so unless the worker has previously been counted under the prior H-1B cap. If not, the employer will have to wait to register the applicant for the upcoming H-1B lottery in March 2023.

4. What is the total period for which an H-1B can be extended?
The maximum time that a non-immigrant worker is allowed on an H-1B status is six years. If the worker has spent less than six years in the U.S., then, the new employer can seek to obtain the remainder of unused time in H-1B status for a maximum of six years. However, there are certain instances when a non-immigrant worker can avail for extensions beyond the six-year limit, namely, if he/she holds an approved

I-140 or has a pending I-485 Adjustment of Status which has been filed within one year of the final action date becoming current. It is best to secure guidance and practice utmost caution before proceeding with filing H extensions with latter provisions.

5. What happens if the terminated employee is allowed to remain on the U.S. payroll for a short period of time but is not permitted to be actively involved in work for the employer?
The correct term to describe an arrangement like this would be ‘Garden Leave’. To better understand the concept of Garden Leave, let’s consider that a worker is terminated on November 7, 2022, but continues to be paid from until the end of December 2022 while being in nonproductive status. In strict compliance with the regulations, it is best to consider that the non-immigrant worker’s termination occurred on November 7, 2022 rather than the end of December 2022 unless the worker is on leave – such as a medical leave or has suffered from some sort of disability to work.

6. If the non-immigrant worker has held an approved I-140 with his previous employer, can the new employer file for a new labor certification and subsequent I-140 without the worker losing his priority date?
The new employer in addition to filing a transfer of H-1B status may also file a new labor certification, and upon approval, file another I-140 petition for the non-immigrant worker. In this case, the priority date of the prior I-140 petition can still be retained.

7. Would job portability be an option in cases where the non-immigrant worker has a pending I-485 Adjustment of Status application?
If the I-485 application has been pending for 180 days or more, the worker can exercise job portability by taking up a job or being offered in the same or similar occupation with another employer. The underlying labor certification and I-140 will still remain valid upon exercising such portability. The applicant, in such an instance will need to submit a new Form I-485, Supplement J. The non-immigrant worker in this case can also exercise job portability to “self-employment” if he is unable to find any employment.

Disclaimer: Any material provided here is by way of information only and should not be viewed as soliciting or advertising. No action should be taken based on information provided without seeking appropriate legal advice. 
 
With inputs from Manizeh Mistry, Associate Partner at LawQuest. 

Laid off Twitter, Meta workers a talent source for US IT companies

Laid off Twitter, Meta workers a talent source for US IT companies

IT services and staffing firms in the United States could be in for a ready reserve of potential employees following mass layoffs by technology companies such as Twitter and Meta Inc.

Many of those impacted by the layoffs are workers on an H-1B work permit.

They will not be eligible to legally stay and work in the United States after 60 days of the end of their employment contracts.

Staffing firm Quess Corp, which recently started its professional staffing business in the United States, said this was a good opportunity for companies to hire people who had been fired.

“We are mapping that … there are layoffs in many pockets, in startups and in mature environments. For someone who already has a visa and can migrate … this is a good opportunity,” said Guruprasad Srinivasan, chief executive of Quess Corp.

Most IT services providers have been increasing their hiring in the United States in a bid to be closer to clients, especially after two years of a remote working environment due to travel restrictions following the Covid-19 pandemic.

“…employers in the US need H-1B workers, especially in the IT sector. However, such employers cannot advertise that they have jobs for, let’s say H-1B visa holders, as that would be a discriminatory recruitment initiative and could expose the employer to lawsuits from US workers and/or other legal action or regulatory sanctions,” said Poorvi Chothani, managing partner of immigration law firm LawQuest.

However, companies are likely to tap into their existing employee networks to informally reach out to such workers and recruit them.

Staffing firms, which place workers at IT firms for short-term projects, could also emerge as potential employers as many companies are turning to staffing firms to meet their demand for highly skilled tech talent.

Deepali Khadakban, CEO of US-based IT services firm Precision Technologies, said her firm would continue to hire for tech skills, including those impacted by the layoffs.

“One challenge for these employees could be getting used to market-standard salary packages given that some of the tech firms had hired talent at fairly premium packages to attract them,” Khadakban said.

Most IT companies have increased their dependence on sub-contractors, or short-term workers, in the United States to bridge the supply gap.

Several people have taken to posting on microblogging platform Twitter, offering to connect those impacted by the layoffs with startups that are hiring and willing to sponsor the work permits. But it may not be smooth sailing for everyone.

“Hiring of lateral talent is largely a zero-sum game where talent is exchanged within the same cohort of companies. With all Big Tech bellwethers currently in the doldrums due to layoffs and hiring freeze or slowdown, opportunities are not expected to come calling,” said Kamal Karanth, CEO of employee staffing firm Xpheno.

Because of record low hiring volume in recent months, employees hit by layoffs are set to encounter “an unwelcoming hiring climate”, he added.

H-1B employees typically operate on a slippery slope dependent on their H-1B employer, and the tech sector is particularly vulnerable, said Neil A Weinrib, founder of Neil A. Weinrib & Associates, an immigration law firm.

“A lot depends on how long the foreign national has been holding H-1B status in terms of their ability to port to a new sponsor, as H-1Bs are typically valid for up to 6 years unless a PERM/Labor Certification has been filed on behalf of the foreign national before the end of their 5th year,” he said.

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