H-1b Visa Cap Season is Almost Here!

USCIS has announced that the initial registration period for the FY2023 H-1b cap will open at 12 pm ET on March 1, 2022, and run through 12 pm ET on March 18, 2022.

H-1b visa cap season is rapidly approaching. If you are an employer looking to hire a foreign national under an H-1b visa, now is the time to get started with the process.

This March there will be an H-1b visa registration lottery system similar to the one used in March 2021. A company will be required to identify their H-1b visa candidates and enter them in the lottery for a chance at H-1b visa issuance.

We specialize in H-1b visas. If you are an employer with potential candidates, we would be happy to evaluate them for the H-1b visa. Please contact us today for a free employer consultation, at 415-413-8760 or theteam@huwelaw.com.

H-1b Visa Cap Season is Almost Here!

UPDATE: USCIS has announced that the initial registration period for the FY2022 H-1b cap will open at 12 pm ET on March 9, 2021, and run through 12 pm ET on March 25, 2021.

H-1b visa cap season is rapidly approaching. If you are an employer looking to hire a foreign national under an H-1b visa, now is the time to get started with the process.

While the details are not out yet, it is expected that this March there will be an H-1b visa registration lottery system similar to the one used in March 2020. A company will be required to identify their H-1b visa candidates and enter them in the lottery for a chance at H-1b visa issuance.

We specialize in H-1b visas. If you are an employer with potential candidates, we would be happy to evaluate them for the H-1b visa. Please contact us today for a free consultation, at 415-548-7067 or theteam@huwelaw.com.

Trump's Sweeping H-1b Visa Regulatory Changes

The Trump Administration’s sweeping regulatory changes to the H-1B visa were published last week. Prevailing wage has increased across all occupations and locations; this increase took effect on October 8th. Barring a court injunction, the other changes will take effect on December 7th.

Below are the additional key changes:

Specialty Occupation

• The definition of a “specialty occupation” has been amended, and now states that there must be a direct relationship between the required degree field(s) and the duties of the position:

  • General degrees in engineering, liberal arts, business, etc. without further specialization or explanation are not sufficient to meet specialty occupation.

  • In cases where the petitioner lists degrees in multiple “disparate” fields of study as the minimum entry requirement for a position, the petitioner must establish how each field of study is in a specific specialty providing “a body of highly specialized knowledge” directly related to the duties and responsibilities of the particular position.

  • Where a position may allow a range of degrees, and apply multiple bodies of highly specialized knowledge, each of those qualifying degree fields must be directly related to the proffered position.

• A bachelor’s degree in a specific specialty or its equivalent must be a minimum requirement for entry into the occupation in the United States by showing that the required degree is always:

  • The requirement for the occupation as a whole,

  • The occupational requirement within the relevant industry,

  • The petitioner’s particularized requirement, or

  • Because the position is so specialized, complex, or unique that it is necessarily required to perform the duties of the specific position.

Third-Party Worksites

• The definition of “worksite” has been amended to “the physical location where the work is actually performed by the H-1B nonimmigrant.”

• “Third-party worksite” has been defined as “a worksite, other than the beneficiary’s residence in the United States, that is not owned or leased, and not operated, by the petitioner.”

• A 1-year maximum validity period has been set for all H-1B petitions in which the beneficiary will be working at a third-party worksite. This applies to all H-1B petitions where any identified worksite is a third-party worksite, not just the primary worksite.

Employer-Employee Relationship

• The definition of “United States Employer” has been amended by:

  • Striking the word “contractor” from the definition of “United States employer." However, the deletion does not necessarily preclude a contractor from qualifying as a U.S. employer.

  • Inserting the word “company” in the general definition.

  • Expanding upon the existing requirements by requiring that an employer must engage the beneficiary to work within the United States and have a bona fide, non-speculative job offer for the beneficiary.

• At the time of filing, the petitioner must establish that a bona fide job offer exists and that actual work will be available as of the requested start date.

• "Employer-employee relationship” has been redefined as the “conventional master-servant relationship as understood by common-law agency doctrine.” USCIS will look at whether the employer actually exercises that right to control.

• Petitioners filing third-party worksite petitions must submit evidence such as contracts, work orders, or other similar evidence (such as a detailed letter from an authorized official at the third-party worksite) to establish that the beneficiary will perform services in a specialty occupation and that the petitioner will have an employer-employee relationship with the beneficiary.

The Department of Homeland Security has announced that it expects approximately one-third of H-1b visa petitions to be denied under the new regulatory scheme.

Stay tuned for further updates!

Need assistance with an H-1b visa or employment-based green card? Contact us today at 415-413-8760 or theteam@huwelaw.com.

Getting Around the Suspension of H-1b and L-1 Visas: National Interest Exceptions

Many foreign nationals know that on June 22nd, Presidential Proclamation 10052 was issued. The Proclamation suspends entry into the United States of applicants for certain visas, including (among others) H-1B, H-2B, L-1, and L-2 visas. It does not apply to applicants who were in the US on its effective date (June 24th) and who already had a valid visa in one of the classifications mentioned above. It is nonetheless a sweeping ban applicable to hundreds of thousands of nonimmigrants, which has resulted in multiple lawsuits being filed against the federal government to enjoin it. 

In response to these lawsuits, on August 12th the government issued new guidance that includes expanded "national interest" exceptions to the Proclamation. This new guidance will presumably help many professionals and companies because it includes exceptions such as the following:

1. The applicant is seeking to resume ongoing employment in the US in the same position with the same employer and visa classification

2. The applicant is a technical specialist, senior level manager, or other workers whose travel is necessary to facilitate the immediate and continued economic recovery of the US

3.  The wage rate paid to the H-1B applicant meaningfully exceeds the prevailing wage rate by at least 15%

4. The H-1B applicant’s education, training and/or experience demonstrate unusual expertise in the specialty occupation in which the applicant will be employed

5. The applicant’s proposed job duties or position within the petitioning company indicate the individual will provide significant and unique contributions to an employer meeting a critical infrastructure need

6.  Denial of the visa pursuant to the Proclamation would cause financial hardship to the US employer

However, in practice it will be difficult for a foreign national to benefit from a national interest exception. In order to do so, they must be able to get over the hurdles of (1) successfully scheduling an emergency appointment at the applicable US consulate abroad during a pandemic that has resulted in extremely limited visa services, and (2) successfully arguing that they qualify for an exception in the face of consular officers who have unchecked discretion to approve or deny these applications. Furthermore, the new guidance in conjunction with the Proclamation itself constitute an attempt by the executive branch to circumvent the legislative procedure and create new statutory requirements for H-1b and L-1 visas. These issues will result in lawsuits continuing to move forward against the federal government, which may result in an injunction on the Proclamation itself. Stay tuned . . . 

. . . and in the meantime, contact us for help at theteam@huwelaw.com or 415-496-9040. 

Are you ready for H-1b season?

Employers growing their business need the best talent, and sometimes that talent needs a visa. The 2018 H-1b season was brutal - USCIS applied unprecedented levels of scrutiny and issued burdensome Requests for Evidence. The stop on premium processing and extraordinary processing delays left businesses and applicants in an often untenable limbo. Some applications are still pending.

This season, we are front loading our applications with legal arguments against the novel and specious ones USCIS used last year. We are also providing additional evidence they claim they now want. Finally, we are working with our clients to develop a plan B for their candidates - even if the application is selected for the lottery. We are ready. Are you?

Contact us today to get started: 415-496-9040 or TheTeam@HuWeLaw.com

October 2018 Visa Bulletin Released

The U.S. Department of State has released the Visa Bulletin for October 2018. In addition to the final action dates and dates for filing applications, the Bulletin also includes notes on the scheduled expiration of two employment visa categories, the Employment Fourth Preference Certain Religious Workers (SR) and the Employment Fifth Preference Categories (I5 and R5), which will only be restored if Congress acts.

USCIS has advised that in October, both family-based and employment-based preference filings must use the dates for filing chart.

To view the full Bulletin, please visit:

https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-october-2018.html

To discuss your immigration goals, please contact us at theteam@huwelaw.com or 415-496-9040.