H-1B visas

by Adrianna Romero Adrianna Romero No Comments

Cap-Gap Extended

In a move to address recent USCIS processing delays and to provide greater stability for F-1 visa holders, a new rule has been introduced that extends the work authorization period for certain individuals. Previously, F-1 students who presented an Employment Authorization Document (EAD/Form I-766) with category codes C03B or C03C, along with a Form I-797C receipt notice for an H-1B petition, would see their OPT/STEM OPT EADs extended until October 1 of the same calendar year. Under the updated rule, these individuals will now have their EADs extended through April 1 of the following calendar year.

This extension addresses growing concerns over delays in processing H-1B petitions and EAD renewals, which have left many F-1 visa holders with gaps in employment authorization. USCIS has cited a need for this change in response to increasing EAD filings, spiking petition volumes, and other circumstances that affect processing times.

Given that some EAD processing times now extend beyond fourteen months, USCIS advises applicants to submit their EAD renewal applications up to 180 days in advance of expiration. This new extension period provides critical relief to F-1 students and H-1B petition beneficiaries, ensuring they can continue to work while awaiting the adjudication of their petitions. The change also aims to mitigate the effects of the “cap-gap,” which historically leaves around 26,961 petitions unadjudicated by the beginning of each fiscal year, creating a significant gap in employment authorization.

This extended period not only helps alleviate the current backlog but also reflects USCIS’s commitment to enhancing the reliability of the process for future applicants.

by Adrianna Romero Adrianna Romero No Comments

USCIS Announces Final Rule Implementing the H-1B Visa Modernization Rule

On December 18, 2024, the U.S. Citizenship and Immigration Services (USCIS) published a final rule implementing significant updates to the H-1B visa program. The new rule is designed to modernize and improve the efficiency of the H-1B process, enhance benefits and flexibility for petitioners, and bolster integrity measures within the system.

For employers and foreign nationals navigating the H-1B landscape, the following key takeaways from the final rule are crucial to understand:

1. New Form I-129 Required Starting January 17, 2025

Beginning January 17, 2025, any H-1B petition filed must use the new Form I-129, Petition for a Nonimmigrant Worker. This form reflects the changes introduced by the final rule, including the updated eligibility criteria for H-1B specialty occupations.

2. Updated Definition of Specialty Occupation

A significant change in the final rule is the clarification of the “specialty occupation” definition. Under the updated rule, a position will qualify as a specialty occupation only if it requires the practical and theoretical application of specialized knowledge and at least a bachelor’s degree in a directly related specific specialty, or its equivalent field. Notably, USCIS has removed references to business administration or liberal arts degrees as ineligible general degree requirements, emphasizing the importance of the beneficiary’s actual course of study in relation to the position’s duties.

Petitioners seeking to establish that a role qualifies as a specialty occupation because a specific degree is “normally” required will now only need to demonstrate that it is “typical” or “common,” rather than proving that it is the absolute minimum requirement for all cases.

3. Changes to H-1B Cap Exemptions

The final rule revises the criteria for cap exemptions for nonprofit research and governmental research organizations. The new requirement is that research must be a “fundamental activity” of the organization to qualify for an exemption, rather than the prior “primary mission” criterion. Importantly, the rule clarifies that work performed at a qualifying institution can include telework or remote work.

Additionally, the rule specifies that to qualify for an ACWIA fee exemption, a nonprofit must be recognized by the IRS as tax-exempt under sections 501(c)(3), (c)(4), or (c)(6).

4. Refined Definition of U.S. Employer

USCIS has broadened the definition of “U.S. Employer,” no longer requiring that the petitioner maintain a direct employer-employee relationship. This change now includes those with legal presence in the U.S., a U.S. tax ID number, and the ability to service process. The revision also allows owner-beneficiaries to petition on their own behalf, providing more flexibility for self-petitioning.

5. Elimination of Itinerary Requirements and Changes to Third-Party Worksite Requirements

One major shift in the rule is the removal of the itinerary requirement. Previously, petitioners had to submit detailed day-to-day work assignments for the entire validity period of the H-1B petition. Now, petitioners only need to demonstrate that the position will exist at the start date of the petition, without detailing every assignment in advance.

For H-1B workers assigned to third-party worksites, USCIS will now examine the job requirements of the third-party, not the petitioner. The agency will focus on whether the job aligns with the third party’s organizational needs and operations. Importantly, the final rule formalizes the need for contracts, statements of work, and client letters to verify the bona fide nature of the job offer.

6. Expanded Site Visit Authority

USCIS has expanded its authority to conduct site visits for H-1B workers. Inspections may now be conducted at the petitioner’s worksite, remote work locations, and third-party customer sites, including the private residence of workers engaged in remote work. If USCIS is unable to verify any facts—due to non-cooperation from the petitioner or third parties—it may deny or revoke the petition.

7. Deference to Prior Determinations

The new rule codifies USCIS’s existing deference policy, meaning the agency will generally defer to prior determinations for the same parties unless there is a material error, a change in circumstances, or new adverse information that affects eligibility. This policy applies to all nonimmigrant classifications using Form I-129, not just H-1B petitions.

8. Changes to Extension of Status Petitions

Under the updated rule, petitions for extension of status for H-1B, L-1, O-1, and P-1 visa holders will now generally require supporting evidence, unless specifically requested by USCIS. This is a change from the previous regulation that indicated such evidence was not necessary unless explicitly requested.

9. H-1B Cap-Gap Extension Adjustments

The final rule adjusts the timeline for H-1B cap-gap extensions, extending the eligibility until April 1 of the fiscal year or the start date of the approved H-1B petition, whichever is earlier. Previously, these extensions only lasted until September 30, the day before the start of the new fiscal year.

10. Validity Period for Approved Petitions

The new rule clarifies how the validity period is determined in various scenarios, including when the petition is approved before or after the requested start date. If the approved petition’s dates differ from the requested validity period, USCIS may issue a Request for Evidence (RFE) to confirm or adjust the dates based on the Labor Condition Application (LCA).

11. Amended Petitions Clarification

The final rule also provides additional clarity regarding the filing of H-1B amended petitions, essentially codifying the Matter of Simeio Solutions decision. Under the new rule, a petitioner must file an amended petition if there is a material change in the terms and conditions of employment. This includes changes in job location or position duties. However, the rule also incorporates Department of Labor (DOL) guidance on when a new Labor Condition Application (LCA) is not required, such as for peripatetic (traveling) workers or short-term placements.

As always, it is advisable for employers and workers to consult with an experienced immigration attorney to ensure they meet the requirements of the new rule and avoid delays or denials in the application process

by SCwpadmin SCwpadmin 460 Comments

Effect of Government Shutdown on Immigration

The shutdown of the federal government does affect applying for certain immigration visas.  Fortunately, many services provided by USCIS, including processing of various petitions or applications for immigration benefits, will continue as they are fee-based.  Therefore, applying to USCIS for non-immigrant petitions or permanent residence will continue at this time.  USCIS offices are also open for interviews and appointments as scheduled.

Unfortunately, certain types of applications for immigration benefits are affected because they involve the U.S. Department of Labor, which is shutdown.  Petitions to seek H-1B or E-3 status for employees cannot be completed at this time because a necessary component of these petitions is obtaining a labor condition application from the Department of Labor.  Similarly, labor certification applications for employment-based permanent residence cannot be completed because the DOL is closed and therefore not accepting applications.  While employers can complete preliminary work such as gathering information and documents, H-1B, E-3 and labor certification applications cannot move forward to completion until the DOL reopens.

The E-verify system is also shutdown.  Therefore, employers will not be able to verify employment eligibility of any new hires or take any action in E-verify.  The Department of Homeland Security has suspended the 3 day rule for E-verify cases that are affected by the shutdown and indicated that it will provide additional guidance once the federal government is reopened.  We remind employers to be sure to continue to complete their form I-9’s for new hires within 3 days of hiring.

Immigration courts around the country are also affected.  The court has announced that it will continue to hear cases of individuals in immigration detention, but is suspending all other functions due to the shutdown.  Cases docketed during this time will be reset for future hearing dates.

The Department of State has announced that visa operations at U.S. consulates abroad will continue as they are fee-based.

We will provide further information as we receive it.

by SCwpadmin SCwpadmin No Comments

H-1B Cap Reached Within the First Week

U.S. Citizenship and Immigration Services (USCIS) announced that as of Friday, April 5, it had received a sufficient number of H-1B petitions to reach the cap for this year and will not accept any additional cap-subject petitions. 

 

Since the cap was reached within the first week, all cap-subject petitions will be placed in a lottery.  Petitions eligible for the “master’s cap” will first be placed in a pool for random selection for one of the 20,000 available “master’s cap” H-1Bs.  Those not selected in that lottery will be placed with all others in the pool for the “regular cap” of 65,000 H-1Bs. Those who do not receive an H-1B in this year’s allotment will have their petitions and filing fees returned. USCIS has not yet announced a timeline for the selection process, but historically the process has taken several weeks.   It has also not disclosed the total number of petitions received.

by SCwpadmin SCwpadmin 773 Comments

‘Tis the Season

Here in Colorado, the ski season so far is a bit of a bust as we are in desperate need of snow.  However, the H-1B season is in full swing. Under the law, only 85,000 new H-1B’s may be allotted for foreign professional workers each year, and 20,000 of those are reserved for individuals who have completed a master’s degree or higher in the United States.  The annual allotment of H-1B’s becomes available October 1, which is the start of the fiscal year.  However, employers may apply April 1stfor an H-1B with an October 1st start date.  In 2012, the H-1B cap was reached, meaning that all of 85,000 H-1B’s had been allotted, in ten weeks. Due to the improvement in the economy, it is expected that this year the H-1B cap will be reached even sooner, quite possibly the first week in April. 


Foreign workers who have never previously been in H-1B status for a private employer are subject to the cap, meaning they must receive one of the coveted 85,000 H-1B’s in order to work in the U.S. in H-1B status.  In contrast, except in extremely unusual circumstances, foreign workers who have previously held an H-1B for a private employer are not subject to the cap and often can extend their H-1B status, even if changing employers.  An individual who does not receive an H-1B in the allotment would then have to apply next year.  While certain individuals may have other options to continue employment in the U.S., depending on circumstances, we encourage all employers who need an H-1B for cap-subject individuals to start the process as soon as possible so that the petitions are ready to be filed April 1st. 


If you intend to hire foreign workers, please join Ste

rn & Curray on February 6th from 12:00-1:00 pm (MST) for a complimentary teleconference that will help employers understand and plan for the H-1B cap. For more information, including how to RSVP, follow this link: http://conta.cc/Uvr9cl.

by SCwpadmin SCwpadmin 87 Comments

H-1B Season is Coming

The most important season for immigration law not winter, spring, summer, or fall. Rather, it is “H-1B Season.”

As of April 1, 2013, USCIS will start accepting H-1B applications for the next fiscal year with an effective date of October 1, 2013.  USCIS will continue accepting applications until the H-1B cap numbers have been exhausted (65,000 regular H-1B numbers and 20,000 numbers for applicants with a master’s degree or higher).


In 2007, during the first week of April, USCIS received approximately twice as many applications as there are H-1B cap numbers.  In subsequent years, due to the recession, H-1B numbers lasted as long as January of the following year.  The numbers ran out quite quickly in 2012 and we expect that they will run out even faster in 2013.  Therefore, employers should start the process of preparing H-1B applications for appropriate candidates in the near future . We want to make sure that our clients have sufficient time to prepare the applications to have them ready to file by April 1, 2013.

by SCwpadmin SCwpadmin 74 Comments

USCIS Issues New Rule about Change in H-1B’s Location

The California Service Center has issued a new policy about filing amended H-1B petitions for H-1B beneficiaries who change locations. In the past, USCIS has indicated that if a company files a new LCA before the H-1B beneficiary changes locations, an amended H-1B petition is not required. According to the new California Service Center policy, and experiences of companies in the field, companies must file an amended H-1B petition if an H-1B beneficiary changes locations even if the company already has an approved LCA in place that covers the new location.

Please contact us for more information if you have an H-1B beneficiary who has changed locations.

by SCwpadmin SCwpadmin 9 Comments

H-1B Cap Update

USCIS reports that as of April 13, 2012 it has receipted more than 30,000 H-1B petitions, which is more than one 3rd of the 85,000 allotment.

by SCwpadmin SCwpadmin No Comments

H-1B Season is Upon Us

Starting April 2, 2012, USCIS will start accepting H-1B applications with a validity date effective October 1, 2012. In the last three years, H-1B visa numbers expired, respectively, in January, December, and November. It is impossible to predict when the numbers will be exhausted this year so we recommend that our clients prepare and file their H-1B applications as soon as possible.

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