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Going, going gone: USCIS no longer accepting H-1B visa petitions for FY21

The registration and random selection period for new H-1B visas under the fiscal year 2021 quota limitation is over.

On March 31, 2020, the US Citizenship and Immigration Services (USCIS) completed the random selection of new H-1B registrants and updated their online database for employers and attorneys listing selections.

USCIS now needs to receive, starting April 1, 2020, the Department of Labor certified labor condition application and visa petition for each selected registrant within 90 days or less. The agency has not announced any extension of this deadline in response to COVID-19 pandemic. While USCIS has announced extensions of deadlines in many other situations and there remains the possibility that this deadline too might be extended in the future, it is best to prepare and file well before the current deadline.

H-1B quota background

The H-1B is one of the most commonly used visas for US employers of foreign professionals. In 1990, the US Congress, for the first time, imposed quota limits on the number of new H-1B visa petitions that the government would grant each fiscal year, setting the number at 65,000. 

Quota limits were not reached in the years immediately after 1990, but began to be a problem in the mid-90’s as the US economy expanded and the demand for foreign professionals by US employers increased. Congress increased the supply of new H-1B visa petitions to meet the country’s needs, but only temporarily. By the time the temporary increase expired, the US economy was suffering from the tech bubble burst of 2000 and the aftermath of September 11, 2001. New H-1Bs remained readily available.

However in 2004 quota limits on new H-1Bs began to be a problem again. On October 1, 2004, the very first day of fiscal year 2005, the FY05 quota was exhausted.  Congress responded by creating an additional 20,000 slots but limited their availability to those with graduate degrees from US universities.

The increase helped, but was insufficient to meet the needs of US employers. In each of the subsequent fiscal years, the quota was exhausted more and more quickly.  For fiscal year 2008, more petitions were received on the first day than the quota permitted, and the same was true in fiscal year 2009.

Fiscal years 2010, 2011 and 2012 broke with the historical pattern. Although the quota was used up, the same economic climate that limited job opportunities generally also impacted job opportunities for H-1B workers.  As a result, for those fiscal years, USCIS continued to accept new H-1Bs until December, January and November, respectively. 

By fiscal year 2013, the historical pattern resumed and US employer demand for new H-1B workers far outstripped the limited supply allocated by Congress. For many years now, the number of petitions received in the first five business days was so much greater than the quota that the likelihood of selection was less than 50 percent, making it hard for employers and foreign professionals to plan for the future.

For fiscal year 2021, USCIS implemented a new registration system that required employers and attorneys to create accounts and register prospective H-1B employees in March 2020. The agency’s random selection was done from this pool of registrants.

The limited supply of new H-1B visas is inadequate to meet demand. The problem that we have experienced for more than a decade continues to this day, with Congress failing to take the action needed to increase the number of new H-1B visa petitions to meet the needs of American employers. The result has been a shifting of many jobs to other countries, with resulting loss of revenue and business opportunity for the US.

What to do now

Although no new H-1B petitions will be accepted, there are still a number of solutions available to employers and foreign professionals. 

‘Old’ H-1Bs are quota-exempt

Note that only new H-1B petitions are subject to quota limits. A foreign professional granted H-1B status under the quota already is generally exempt from quota limits. This can be true if changing employers or changing from other visa status. For example, a former H-1B visa worker attending US university on F-1 student visa status may be eligible to return to H-1B status without being subject to new quota limits.

Exempt employers

Petitions by some employers are exempt. These are generally government, academic institutions and related research organizations.

Other visas available

There are a number of other visas that US employers may consider as alternatives to the H-1B. 

  • F-1 STEM OPT.  Some foreign students may be able to extend their pre- or post-graduation employment authorization. The list of STEM degrees that offer the chance of an additional 24 months of post-graduation employment authorization beyond the normal 12 months was recently expanded. 
  • Free Trade Agreement TN/H-1B1/E-3.  Citizens of Canada, Mexico, Chile, Singapore and Australia may want to consider free trade visa benefits available by treaty only to citizens of those countries.
  • H-3/J-1.  Training visas are a solution for some. While H-3 authorize only incidental productive work for what is primarily classroom-type training, the J-1 permits on-the-job training involving regular productive work.
  • Extraordinary-Ability Nonimmigrants.  For individuals who can document their extraordinary ability and have job offers using those skills, the O-1 visa is not subject to numerical limitations.
  • EB1A Extraordinary-Ability Immigrants.  Similar to the O-1, but without the requirement of a sponsoring employer. 
  • EB1B Outstanding Professors and Researchers Immigrants. Universities use this to sponsor qualified professors and researchers to immigrate. Other employers use this for qualified researchers.
  • EB2 and EB3 Professional Immigrants.  This is how employers sponsor most professionals to immigrate to the US.

There are many other nonimmigrant and immigrant visas that may be available.  Immigrant visas are subject to quota limits based in part on place of birth, with people born in mainland China and India often experiencing longer waiting times. The requirements for each solution vary from the H-1B, so employers and foreign nationals are well advised to consult their Dentons attorney to determine eligibility for these benefits.

Other countries

Quota limits in past years have driven the jobs offered by many employers offshore and this year is no exception. A number of the countries around the world where our law firm and clients do business have rules for the employment of foreign nationals that are as or even more generous than those offered by the US. 

Employing a candidate abroad, rather than losing a needed skill set, is an option for many employers. Where proximity to a US facility is desired, employers often consider near-shoring in Canada or Mexico.  Dentons is the world’s largest law firm and our global network of offices uniquely positions us to help guide employers through all of the options.

Next fiscal year

And there is always next year when the USCIS will begin to accept new H-1B registration for jobs starting October 1, 2021, under the fiscal year 2022 quota.

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Going, going gone: USCIS no longer accepting H-1B visa petitions for FY21

DOS suspends routine visa services at all US Embassies and Consulates worldwide

In response to the worldwide outbreak of COVID-19, the State Department is suspending routine visa services at all US Embassies and Consulates.  All routine immigrant and nonimmigrant visa applinets will be canceled as of March 20, 2020.  These embassies will resume service as soon as possible but are unable to provide a specific date at this time. Clients are advised to check the website of the embassy or consulate for its current operating status. 

This suspension of service does not affect the visa waiver program. 

Applicants with a need to travel immediately or other urgent matter may be able to request an emergency appointment following guidance provided at the Embassy’s website. 

More information can be found at the US Embassy website.

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DOS suspends routine visa services at all US Embassies and Consulates worldwide

An overview of United States travel restrictions due to the COVID-19 outbreak (United States)

President Trump has recently issued several Presidential Proclamations in response to the 2019 Novel Coronavirus (COVID-19) outbreak, which have restricted the ability of foreign nationals to travel to the United States. Dentons immigration partner, Henry Chang (who is based in our Toronto office) provides a summary of the US travel restrictions that have resulted from the COVID-19 outbreak (that the World Health Organization declared a pandemic on March 11, 2020). Please click here to read the full Dentons client alert.

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An overview of United States travel restrictions due to the COVID-19 outbreak (United States)

New ban on hiring expatriates in Oman

The Ministry of Manpower has issued Ministerial Decision 47/2020 (the MD). The MD adds “sales representative/sales promoter” and “purchase representative” to the categories of jobs from which expatriates are banned (although an expatriate currently working in a position which is subject to the MD can continue in his/her job until his/her current visa expires).

Please click here to read the full Dentons client alert.

New ban on hiring expatriates in Oman

E-1 Visas for Canadian production companies

Canadian production companies that sell films and/or television productions to US-based companies (including US studios, independents and streaming services) can face difficulties when sending their key personnel to the United States. The issue frequently arises when some or all of the Canadian production is scheduled to take place on location in the US. 

Canadian production companies often focus on traditional US work permit categories that were created with the film and television industry in mind, such as the O-1B for aliens of extraordinary achievement in the motion picture or television industry, or the O-2 for related essential support personnel. However, these categories are relatively difficult to use and many foreign nationals will be unable to satisfy the onerous eligibility requirements.

Fortunately, the E-1 (treaty trader) category is a viable alternative to the O-1B and O-2 categories. Despite this fact, Canadian production companies tend to overlook the E-1 category, because it was initially intended for entrepreneurs rather than the film and television industry. For a brief overview of E-1 eligibility requirements and to read the full article please click here.

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E-1 Visas for Canadian production companies

US Travel Ban 2020: What does the latest presidential proclamation mean?

Effective February 21, 2020, a proclamation issued by President Trump on January 31 imposes certain visa and travel restrictions on citizens from six countries not already listed in the President’s three previous travel ban proclamations.

The six countries with new travel restrictions are:

Burma Nigeria
Eritrea Sudan
Kyrgyzstan Tanzania

No Diversity Visa for Sudanese and Tanzanians

With respect to two of the above-listed countries—Sudan and Tanzania—the President only removed their passport holders’ eligibility to apply to immigrate to the US through the Diversity Visa Program (aka green card lottery). 

Immigrant visa restrictions

For the other four countries—Burma, Eritrea, Kyrgyzstan, and Nigeria—the President imposed travel restrictions on immigrant visas. The Department of Homeland Security (DHS) reports that the President’s proclamation applies only to intending immigrants abroad who have not yet received an immigrant visa.

Exceptions

DHS reports that the proclamation imposes no restrictions on nonimmigrant visas for citizens of any of these countries. B-2 tourists, F-1 students, H-1B workers and all other nonimmigrant visa holders are not banned from travel to the US.

DHS further reports that intending immigrants abroad who have a valid immigrant visa but have not yet entered the US may still do so and that lawful permanent residents already granted green card status are not impacted by the proclamation. 

It is unclear from the proclamation or DHS’s clarifying remarks how the proclamation will impact prospective immigrants already living in the US on nonimmigrant visas. Prior travel ban-related proclamations were later interpreted by DHS as not applying to foreign nationals who had already entered the US prior to said proclamation.

The full text of the proclamation can be viewed here. DHS’s travel and visa restrictions prepared remarks can be found at DHS website

For further information, please contact your Dentons lawyer.

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US Travel Ban 2020: What does the latest presidential proclamation mean?

H-1B: The Buck Stops Where?

Who can pay the cost of the H-1B is a recurring question. And the US Department of Labor provides the answer.

The short answer is: the employer. However, like most legal questions, the more detailed answer is more complicated.

It is that time of year again—H-1B filing season. Employers, recent graduates, and professionals overseas are starting to prepare for the annual filing of new H-1B visa petitions to authorize professionals from other countries to be employed in the US.

The process is expensive. There are government filing fees and attorney’s fees, charges for expert evaluations of foreign education and/or experience and charges for translations. For some, there may also be costs associated with relocation, transportation, accompanying family members, etc. Even generous employers often question whether some of the expenses can be lawfully paid the employee himself or herself, or which of the expenses the employer may recoup if the employee leaves employment.

The DOL’s Wage and Hour Division issued Fact Sheet #62H, “What are the rules concerning deductions from an H-1B worker’s pay?,” in 2009. The DOL’s position is that there are certain expenses that can never be deducted from an employee’s pay. In pertinent part, these include:

  • The US Citizenship and Immigration Services training and processing fee;
  • The USCIS fraud protection and detection fee;
  • The USCIS optional premium processing fee;
  • A penalty for the workers failure to complete the full employment period authorized by the approved H-1B;
  • Any expenses, including attorney fees, directly related to the filing of the Form ETA 7035E labor condition attestation; and
  • Any deduction that would reduce the worker’s pay below the required wage rate, which is stated on the Form ETA 7035E.

The DOL does identify some expenses that can be paid by either the employer or the employee. Of course deductions required by law (e.g., income tax) can be made. Deductions authorized by the employee also are permissible, but only if:

  • There is a voluntary, written authorization by the employee;
  • For a matter principally for the benefit of the employee, such as reimbursement for travel to the United States or payment for food and lodging that was not incurred while traveling on the employer’s business;
  • For an amount that does not exceed the fair market value or the actual cost (whichever is lower) of the matter covered; and
  • The amount does not exceed the limits for garnishments set by the Consumer Credit Protection Act.

It is important to note that the US Citizenship and Immigration Services guidance in this area is much less comprehensive than the DOL. USCIS provides clear guidance on their position with respect to the various USCIS filing fees. While some may consider the differences as creating a grey area to justify allocating certain expenses to employees, conservative employers will want to minimize exposure to potential liability and the specter of a government enforcement action or civil suit by a disgruntled employee. Following the DOL’s guidance is the best practice.

Employers should review their employee handbooks, employment agreements, offer letters and collateral materials to ensure that they are in compliance with the DOL framework.

The full text of Fact Sheet #62H is available on the DOL website.

For more information about H-1B visa requirements or other questions regarding hiring the best and brightest from around the world, please contact the authors or your regular Dentons lawyer.

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H-1B: The Buck Stops Where?

New important dates for H-1B employers: March 1, 20 and 31

The US Citizenship and Immigration Services agency announced on January 9, that the initial H-1B petition registration period will be from March 1 to March 20, 2020, and that USCIS expects to notify employers whose registrations have been selected no later than March 31, 2020. The agency also provided new information about the H-1B cap-subject petition registration process.  

Petitioners must register using an online account. As of this writing, USCIS has not provided any details regarding the registration portal or ways to register an account, but has indicated that it will post the date employers may start setting up accounts on its website. 

Petitioners must electronically submit a separate registration request for each individual it seeks to petition for a cap-subject H-1B. No more than one registration may be submitted for the same individual by the same petitioner, or all registrations for that individual will be disregarded. 

USCIS will deliver lottery results by sending notices electronically and inform petitioners to file an H-1B cap-subject petition on behalf of the named individual within the filing period indicated on the notice. The notifications will be added to the registration accounts, and the account holders will receive notification via email or text message stating that an action has been added to their account. 

Petitioners should start the preparation process now by evaluating potential H-1B candidates to make sure that they are qualified to receive the visa if selected. Please contact your Dentons lawyer if you have any questions. 

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New important dates for H-1B employers: March 1, 20 and 31

New H-1B Registration Starts March 1, 2020

Hire American/Buy American policy used to benefit the government

In a move under the Hire American/Buy American Executive Order touted as aiding US employers, the US Citizenship and Immigration Services in November actually placed an extra burden on US employers sponsoring H-1B professional workers. The only real winner from this change is the US government—not American employers or workers.

The old rule

In the past, employers filed H-1B petitions with filing fees and the USCIS would then randomly select petitions up to the limited quota available. The agency had to deal with more than twice as many petitions as the quota allowed. It took the USCIS three months on average to return unselected petitions and the filing fees paid by employers, at considerable expense to the government.

The new rule

Under the new rule, the USCIS has increased both the fees employers pay and the steps employers must take. Now employers seeking to file H-1B, cap-subject petitions for the 2021 fiscal year will be required to first register and pay a non-refundable $10-per-petition registration fee.

A separate registration must be submitted for each H-1B requested. The registration must be completed between March 1 and March 20, 2020. Petitioners will receive electronic notification that USCIS has accepted the registration for processing. As before, employers are not permitted to submit more than one registration for a single employee in a fiscal year.

The USCIS will then run a random selection process on the registrations received and will notify petitioners whose registrations were selected. The petitioner will then have up to 90 days to file a full petition with supporting documents and all of the usual filing fees.   

Dentons insights

Imposing additional fees and procedures on US employers benefits no one but the government.

While employers will find out sooner than under the old rule if an employee’s petition is selected, that is no guarantee the petition will be ultimately granted. To the contrary, the increasingly conservative positions being taken by USCIS adjudicators in evaluating petitions—a process without legislative or regulatory approval—make denial more likely than ever.

And early notice of selection for the lucky few means earlier notice of non-selection for the majority of registrations. That is particularly bad news for most F-1 visa foreign students.

The old rule allowed continued employment of certain F-1 students whose authorization otherwise ended. Known as a “cap-gap extension,” this rule provided that a pending H-1B petition for a foreign student with OPT or STEM OPT ending before September 30 acted to extend employment authorization until September 30 or the date that the employer receives notice that the H-1B petition is not selected, whichever is earlier. Such rejection notices were usually not received until mid-June or later, which benefited many employers and students. Under the new rule, unselected registrations will not enjoy cap-gap benefits and employers will lose more workers sooner.

We also expect that US employers will see even longer USCIS-processing times for selected H-1B petitions.

In the past, the USCIS began processing petitions after the selection process was completed—usually mid-April—yet the agency would still be sending out petition approvals and denials into October. Under the new process, the USCIS says registrations will be selected by the beginning of April and employers will have 90 days to file. With some petitions filed as much as three months later under the new rule, it seems likely employers will sometimes see USCIS processing completed in December, or 90 days later than now.

The government claims this new registration process will dramatically streamline processing by reducing paperwork and data exchange, and will result in an overall cost savings to US employers. In fact, the real beneficiary of the new process is the agency itself.

By limiting the number of petitions eligible to file, the USCIS reduces its own workload. It will not have to deal with sending out rejection notices and returning unselected petition packages. Government efficiency is a good thing, but better without the pretense that the change helps Americans.

US employers will continue to bear the cost of recruiting and making offers to more prospective hires than they will ultimately be allowed to employ. They will still have to pay lawyers to evaluate jobs offered and candidate qualifications to make sure registrations are only done for qualified cases. The fact that some forms will not need to be typed or documents copied will save employers some money, but only on the clerical aspects of the process.

As with any new rule, there are clouds of uncertainty. Employers, candidates and lawyers must be prepared for last-minute process changes. The USCIS already announced that it will soon release more information regarding the new registration. And there is always the possibility that a court decision will ban the implementation of this new process and we will have to revert back to previous practices.

Dentons will continue to monitor this issue. Please contact your Dentons lawyer if you have any questions.

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New H-1B Registration Starts March 1, 2020

US green card waiting times lengthen for many

The US State Department predicts longer green card waiting times for many immigrants. Charlie Oppenheim, chief of the department’s Visa Control and Reporting Division, recently shared his analysis of current trends and future prospects with respect to immigrant visa supply and demand.

EB1—Extraordinary ability; outstanding professors/researchers; multinational managers/executives

The employment-based first preference category is not expected to become currently available again for any country of birth. While people born in most countries are predicted to see movement of up to three months per month, Indian-born can anticipate little if any movement. India and China both have waiting times that are years longer than other countries.

EB2—Advanced degree; exceptional ability

EB2 is expected to remain currently available for all countries of birth, except mainland China and India, but that could change, as it did in the current fiscal year. The demand for Indian-born is so great that the predicted movement is only up to one week per month, while China is predicted to move up to two months per month.

EB3—Professionals; skilled workers; unskilled/other workers

The prediction for EB3 is similar to EB2, but with slow and irregular forward movement likely for China and the Philippines. India is predicted to show little to no movement until January 2020. The more limited supply of the “other workers” category makes it likely that it will not remain currently available for the entire fiscal year.

EB4—Religious workers; special immigrant juveniles

The prediction is for EB4 to remain currently available for most countries of birth. El Salvador, Guatemala and Honduras are likely to see little if any movement because of the large demand in the special immigrant juvenile category. Mexico is predicted to see movement of up to four months.

EB5—Immigrant investors

The EB5 category is expected to remain currently available for most countries of birth; mainland China, Vietnam and India will continue to experience longer waiting periods. Mr. Oppenheim did not predict availability.

Note that the October 2019 Visa Bulletin’s EB5 Regional Center final action date is reported as unavailable because Congress and the administration have not yet extended that program. This program has always been temporary in nature and the government always has extended it, often after expiration. In contrast, traditional EB5 remains available.

Family-based preference categories

There are no limits on US citizens sponsoring their spouse, parents and unmarried children under age 21, so these are not reported in the Visa Bulletin.

For October, the F2A (family second preference) category for green card holders sponsoring their spouse and unmarried children under age 21 is reported as current across all countries of birth. Mr. Oppenheim predicted that demand will increase in late 2019 or early 2020, and the category can expect a Final Action Date by February 2020.

Background

The Department of State’s monthly online Visa Bulletin reports on the current wait times for the US immigrant visas (green cards) that are subject to numerical limits. The date the government receives an immigrant visa petition is considered the priority date. The immigrant’s country of birth is another factor impacting how long it takes to immigrate, although a married couple immigrating together can use either spouse’s country of birth for the entire family.

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US green card waiting times lengthen for many