H-1B Cap Season: A Minute of Liz's Work Day!

As those in the immigration world know, we are deep into H-1B cap season. Since we can start sending cap cases today for delivery on Monday, April 3, our office is a whirlwind of activity. And no one is more of a whirlwind than our Lizzie B! Although she is fast, we managed to record a minute of one of her days this week. She has so many papers to sign! And people to talk to! And food to taste! Wow, look at her go!

Associated Press: “US colleges court foreign entrepreneurs who need visas”

Summer can be a difficult time for H-1B applicants. For those lucky ones who were selected in the lottery, they are nevertheless nervously awaiting the results of their H-1B petition. Those who weren’t selected in the H-1B lottery are most likely busy scrambling to come up with alternatives to possibly allow them to work in the US. As Liz has pointed out, it is frustrating for both foreign nationals and immigration practitioners since the H-1B is the perfect fit for so many people, and the only thing stopping them is that they were not selected in the random lottery.

But there is finally some positive news for certain rejected H-1B applicants. Certain universities in the US are now stepping up to provide solutions to the unreliability of the H-1B lottery process. Since employees of universities—or workers who provide services to universities—are exempt from the H-1B cap and thus can apply for an H-1B at any time and are not subject to the random lottery, schools are creating “global entrepreneur in residence" programs to allow entrepreneurial foreign nationals who qualify for an H-1B to work part-time on campus, often as mentors, while they develop their businesses.  

"This movement came about because of challenges that student visa holders were beginning to face when they had completed a program," Bill Stock, a Philadelphia attorney and the current president of the American Immigration Lawyers Association (AILA), tells the AP. "There really aren't a lot of other visas that would allow someone to work temporarily."

One such school to offer this program is University of Massachusetts. Created as part of a 2014 Jobs Bill, the program, called the “Global Entrepreneur in Residence Pilot Program,” aims to “attract and retain more qualified entrepreneurs and their growing companies within Massachusetts” by providing “valuable, relevant part-time work opportunities which will initiate a cap-exempt H-1B visa application process.” The end goal for this program is to encourage and allow new high skill jobs to develop in Massachusetts. To be eligible, candidates must be a start-up entrepreneur in a leadership position (CEO, co-founder, or similar position) within an early-stage venture, have a master’s degree or above in a STEM or related business field, and the candidate’s start-up venture must be headquartered in Massachusetts and able to affiliate with a venture center within UMass Boston or UMass Lowell. Since it started in 2014, the AP reports that the UMass program has helped twenty graduates obtain H-1B visas, and their businesses have created 260 jobs, according to the school.

Critics accuse the universities of exploiting a legal loophole in filing these H-1B petitions, since Congress created the exemption partly to help colleges hire researchers. The AP reports that in a February letter to US Citizenship & Immigration Services (USCIS), Senator Chuck Grassley of Iowa called the practice a "backhanded attempt" to skirt federal rules and a "seemingly unlawful" interpretation of the law.

College officials say they are operating within the law and they’re only addressing the problems created by the H-1B lottery system. As more international students come to US schools—and more schools recruit international students—many of these students who want to stay in the country are instead forced to leave the US due to limited H-1Bs. "Massachusetts says goodbye to over 1,000 graduate students who otherwise want to stay and start a company," William Brah, who leads the global entrepreneur program at the UMass Boston campus, tells the AP. "I mean, it's stupid. You couldn't come up with a more flawed immigration system if you tried."

Along with UMass, smaller entrepreneur programs have recently formed at the University of Colorado-Boulder, the University of Alaska-Anchorage, and Alaska Pacific University, which accept a combined six graduates per year. Babson College is now taking applications for up to ten entrepreneurs, and the City University of New York is looking for eighty business owners from around the world for their program. "We wanted to try to find some way that would make it possible for an entrepreneur to come to the country, without us having to pay them to do it," Andy Holtz, chief of the program, tells the AP.

At Babson, master’s graduate and entrepreneur Abhinav Sureka and his company's two co-founders—both international students—are considering applying for the college's new program. They've raised $73,000 for their company, and are working on plans to produce a high-tech portable tea brewer. "What if we don't get a visa?" Sureka tells the AP. "We can't continue work in the US, and the amount of time we have spent on this project is all wasted."

USCIS Reaches H-1B Cap for FY 2017 (Which Starts October 1, 2016)

US Citizenship & Immigration Services (USCIS) announced today that it has reached the congressionally mandated H-1B cap numbers for fiscal year (FY) 2017, which starts October 1, 2016. Cap cases filed beginning April 1 this year are included in the FY 2017 count. USCIS states that they have also received more than the limit of 20,000 H-1B petitions filed under the US advanced degree (master’s) exemption. As in previous years, USCIS will use a random computer-generated process (i.e., the H-1B “lottery”) to select the 65,000 petitions for the general category and 20,000 for the advanced degree exemption.

After completing intake for all filings received during the filing period, which ran from April 1 through April 7, USCIS will first randomly select petitions for the advanced degree exemption. All unselected advanced degree petitions will become part of the lottery for the 65,000 general cap lottery. The date of the lottery is yet to be determined, and USCIS will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.  

USCIS will continue to accept and process non-cap subject H-1B petitions, including extensions and petitions that have been counted in previous cap year numbers. Users can sign up for H-1B cap season email updates, if they wish, and we will also continue to provide updates as we receive them.

UPDATE APRIL 13, 2016: USCIS announced that they received over 236,000 H-1B cap-subject petitions during the filing period. On April 9, USCIS used the computer-generated random selection process (aka the "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 now reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing. USCIS will begin premium processing for those H-1B cap cases that requested it no later than May 16, 2016.

Were We Supposed to File These H-1B Cap Petitions?

Just kidding! Seriously, no need to fear. It's been a busy few weeks but we've sent off all the H-1B petitions yesterday to be received by US Citizenship & Immigration Services (USCIS) for the April 1 opening filing date. And yes, our mood is "Fabulous."

US News & World Report: “Foreign-Born STEM Workers Get to Stay in U.S.”

Since the federal government opened up public comments on the US Department of Homeland Security’s (DHS) proposed rule to expand the amount of time foreign STEM students are authorized to work in the US on a student visa, they’ve received over 3,000 comments, many of them positive.

The draft rule, incorporating President Obama’s executive action proposals, would make various changes to the F-1 science, technology, engineering, and mathematics (STEM) Optional Practical Training (OPT) program, most notably increasing the STEM OPT extension from seventeen to twenty-four months on top of the initial twelve months of OPT eligibility, for a total of three years of post-graduation work eligibility. As the public comments indicate, many are welcoming the extension as it would increase chances for OPT workers to obtain an H-1B visa since their employers would be able to enter the lottery (by filing an H-1B petition on their behalf) more than once.  

The proposal comes after a District of Columbia judge ruled this past August that the Department of Homeland Security (DHS) must vacate a 2008 rule that granted F-1 STEM students OPT extensions for seventeen months beyond the normal twelve months of OPT since DHS did not provide the necessary public notice and comment.

Since invalidating the rule effective immediately would have created a "major labor disruption” for technology-related industries as well as "substantial hardship" for thousands of international students, the judge imposed a six-month stay until February 12, 2016, a move that allowed DHS to correct—and thereby incorporate Obama’s executive directives including the STEM extension—for the necessary public notice and comment.

What’s in the proposed rule apart from the extension that is generating so many public comments? Some notable highlights include:

• Employers must implement formal mentoring and training plans for STEM OPT workers as well as an evaluation process;
• If students use the STEM OPT for a twenty-four-month period and then enroll in a new higher level STEM program, they would be entitled to a new twenty-four month STEM extension in addition to the standard twelve months of OPT;
• As part of the US worker protections included in the program, employers must show that they are not laying off US workers as a result of hiring a STEM OPT worker, they have ability to provide the necessary mentoring and training, and that the training must be in the student’s field;
• Moreover, duties, hours, and wages of an employer’s STEM practical training opportunity must be comparable to similarly situated US workers and wage information must be provided to DHS;
• The existing E-Verify requirements remain unchanged along with cap-gap extension program;  
• Only accredited schools may participate in the STEM OPT program;
• DHS is permitted to conduct on-site inspection.

Not everyone is thrilled with this proposed rule. One commenter wrote that even with a STEM degree from Cornell University, he has been struggling to find work. "Companies don't want to hire Americans and they abuse [H1-B] and OPT to hire cheap immobile labor instead of hiring anyone over the age of 35, especially in software or tech areas," he wrote.

Ron Hira, a public policy professor at Howard University, said in ComputerWorld that for STEM graduates there "is no justification to treat them as interns in need of further training." He went on: "The duration of 'training' being proposed by the Obama administration has no basis in any theory, data, or analysis…It is pure fiction that someone with a master's degree in electrical engineering needs an additional three years to work as an intern to be a productive professional.”

One computer science Ph.D. student, however, commented that without the proposed STEM extension that applicants are either "lucky to get an H-1B or just go home." With the proposed STEM extension, he says: "I will have three years in total to evaluate my career and have the freedom to work for the country[.]"  

The thirty-day comment period on the new rule ends November 18, 2015, and so for those who have something to add, don’t delay.

USCIS Reaches FY 2016 H-1B Cap!

The H-1B cap has been reached! US Citizenship and Immigration Services (USCIS) reports that they have reached the congressional-mandated H-1B cap numbers for fiscal year 2016 (i.e., for new H-1B petitions with a start date of October 1, 2015 filed in April of this year). In addition, USCIS has received more than the 20,000 limit of H-1B petitions filed under the US advanced degree exemption.

As in previous years, after completing intake on all H-1B cases received between April 1 and April 7, 2015, USCIS will conduct (on a date yet to be determined) the "H-1B lottery" using a computer-generated process to randomly select the 65,000 regular category petitions and also the 20,000 advanced degree exemption cases. USCIS states they will first select H-1B petitions for the advanced degree exemption; all unselected advanced degree petitions will then become part of the 65,000 general category selection process. Except for duplicate filings, USCIS will return filing fees for all unselected cap-subject petitions. In the meantime, USCIS will continue to accept and process H-1B cap exempt petitions. We will provide updates on when the lottery will take place as soon as USCIS releases this information.

UPDATE 4/14/2015: USCIS reports that they received nearly 233,000 H-1B petitions including advanced degree exemption cases filed during April 1 and April 7, 2015. On April 13, USCIS conducted the H-1B lottery using the computer-generated random selection process to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. In addition, USCIS announced that they will begin premium processing for cap-subject H-1B petitions (including advanced degree cases) on April 27, 2015. This fifteen-day premium processing period will begin on April 27, 2015, regardless of the date on the Form I-797 receipt notice, which merely indicates the date that the premium processing fee is received.

UPDATE 5/5/2015: USCIS announced that it has completed data entry for all fiscal year 2016 H-1B cap-subject petitions selected in the random lottery. This means that they have issued all I-797 receipt notices for all H-1B cap cases that were selected in the lottery although it is not clear that all receipts have been sent out yet. USCIS will now focus on returning all H-1B cap-subject petitions that were not selected. The time frame for returning all unselected petitions is unknown, but USCIS will announce once all the petitions have been returned.