H-1B visa cap reached in just seven days

U.S. Citizenship and Immigration Services (USCIS) has reached the congressionally mandated H-1B visa cap for fiscal year (FY) 2017. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced-degree exemption.

USCIS uses a computer-generated process, also known as the lottery, to randomly select the petitions needed to meet the caps of 65,000 visas for the general category and 20,000 for the advanced-degree exemption.

First, USCIS randomly selects petitions for the advanced-degree exemption. All unselected advanced-degree petitions will become part of the random selection process for the 65,000 general cap. The agency will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.

Before running the lottery, USCIS will complete initial intake for all filings received during the filing period, which ended April 7. Due to the high number of petitions, USCIS is not yet able to announce the date it will conduct the random selection process.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of 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 congressionally mandated FY 2017 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.

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming. Normally, when the H-1B visa cap is reached this quickly, it is a sign that the U.S. economy is improving.

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USCIS seeks comments on proposed rule affecting employment and nonimmigrant visas

USCIS is seeking public comments on a proposed rule that would modernize and improve certain aspects of employment-based nonimmigrant and immigrant visa programs. USCIS is also proposing regulatory amendments to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs).

Read the notice of proposed rulemaking published in the Federal Register on December 31, 2015: Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers. The public has until February 29, 2016 to comment. To submit comments, follow the instructions in the notice.

Among other things, DHS is proposing to amend its regulations in order to:

• Clarify and improve longstanding agency policies and procedures implementing sections of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA) related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
• Better enable U.S. employers to employ and retain certain foreign workers who are beneficiaries of approved employment based immigrant visa petitions (I-140 petitions) while also providing stability and job flexibility to these workers. The proposed rule will increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.
• Improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval.
• Clarify when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I 140 petitions because the employer withdrew the petition or because the employer’s business shut down.
• Allow certain high-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization if they:

1. Are the beneficiaries of an approved I-140 petition,
2. Remain unable to adjust status due to visa unavailability, and
3. Can demonstrate that compelling circumstances exist which justify issuing an employment authorization document.

Such employment authorization may only be renewed in limited circumstances.

• Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, and protections for whistleblowers.
• Establish a one-time grace period during an authorized validity period of up to 60 days for certain high-skilled nonimmigrant workers whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.

These proposed changes do not take effect with the publication of the notice of proposed rulemaking. Instead, they would take effect on the date indicated in the final rule when the final rule is published in the Federal Register.

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USCIS discontinues old e-filing system

USCIS has discontinued its old e-filing system and will concentrate its resources on its soon-to-be launched Electronic Immigration System.

Affected immigration forms include:

Form I-131, Application for Travel Document
Form I-140, Immigrant Petition for Alien Worker
Form I-765, Application for Employment Authorization
Form I-821, Application for Temporary Protected Status
Form I-907, Request for Premium Processing Service

After Sept. 20, you must file the paper versions of the forms listed above, which may be downloaded from the USCIS website:  www.uscis.gov

U.S. economy needs more H-1B visas -- a LOT more

USCIS received about 233,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 13, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit.