On June 23, 2021, U.S. Citizenship and Immigration Services (USCIS) announced it will be accepting resubmitted fiscal year (FY) 2021 H-1B cap-subject petitions that were rejected or administratively closed by the service on the basis that the requested start date was after Oct. 1, 2020.
Read moreAILA files Lawsuit Challenging H-1B Wage-Based Selection Process
On Monday, May 17, 2021 under the representation of the American Immigration Lawyers Association (AILA), five nonprofit organizations and businesses filed a lawsuit against President Joe Biden’s administration challenging the move from an H-1B lottery system to a wage-based selection process.
The suit addresses the implementation of a Trump administration regulation that replaced the H-1B random, computerized H-1B lottery with a system that allocates H-1B visa numbers according to the Department of Labor’s four-level wage system. The final rule which was made effective as of March 9, 2021, and later delayed by the Biden administration to December 31, 2021, gives priority in the H-1B selection process to foreign nationals whose offered salary falls within the highest level of their occupation, continuing on to select cases in descending order from OES wage levels III, II and I.
Read morePresident Biden Lets Trump’s Suspension of Certain Work Visas Including H-1B’s Expire
President Biden has let former President Trump’s Presidential Proclamation 10052, which temporarily suspended the entry of certain H-1B, H-2B, J (for certain categories within the Exchange Visitor Program), and L nonimmigrants, expire on March 31, 2021. In their announcement regarding the expiration of PP 10052, the Department of State (DOS) noted that “visa applicants who have not yet been interviewed or scheduled for an interview will have their applications prioritized and processed in accordance with existing Visa Services Operating Status Update guidance.”
Read moreH-1B Initial Electronic Registration Selection Process Completed for FY 2022 Cap
On March 30, 2021, USCIS announced that they have received enough H-1B electronic registrations during the initial registration period to reach the fiscal year (FY) 2022 H-1B numerical allocations including for the advanced degree master’s cap exemption. The agency randomly selected from registrations properly submitted to reach the H-1B cap, and they have notified all prospective petitioners with selected registrations that they are eligible to file an H-1B cap-subject petition for the beneficiary named in the applicable selected registration.
Read moreUSCIS May Reopen and/or Reconsider H-1B Petitions Denied Under Rescinded Memos
On March 12, 2021, US Citizenship & Immigration Services (USCIS) stated that the agency may “reopen and/or reconsider adverse decisions on Form I-129” based on three rescinded policy memos. USCIS notes the agency generally uses “discretion to accept a motion to reopen filed more than 30 days after the decision, if filed before the end of the validity period requested on the petition or labor condition application, whichever is earlier, and the decision was based on one or more policies in the rescinded H-1B memoranda below.”
Read moreH-1B Cap Registration Period for Fiscal Year 2022 Begins March 9, 2021 (Plus FAQ on the H-1B Cap)
US Citizenship & Immigration Services (USCIS) announced that the initial registration period for the fiscal year (FY) 2022 H-1B cap will begin at 12pm ET on March 9 and run through 12pm ET on March 25. During this registration period, prospective petitioners and representatives will be able to submit their registrations using their myUSCIS account and pay the $10 fee for each registration submitted on behalf of each beneficiary.
Read moreDHS Publishes Final Rule to Eliminate H-1B Visa Lottery and Adjudicate H-1B Petitions Based on Highest Salary
US Citizenship & Immigration Services (USCIS) announced the publication of a final rule this week that will “modify the H-1B cap selection process, amend current lottery procedures, and prioritize wages to protect the economic interests of U.S. workers and better ensure the most highly skilled foreign workers benefit from the temporary employment program.” This final rule will end the H-1B visa lottery and instead allow USCIS to adjudicate H-1B petitions based on registrations starting with the highest salary level and going down, as Stuart Anderson explains in Forbes.
Read moreJudge Issues Preliminary Injunction Halting Proclamation Suspending Entry of H-1B, H-2B, J-1, and L-1 Workers for Plaintiffs
In early October, Judge Jeffrey S. White of the US District Court for the Northern District of California temporarily blocked further implementation of section 2 of the June 22 presidential proclamation (PP 10052) that suspended entry into the US for H-1B highly-skilled workers, H-2B nonagricultural workers, J-1 exchange visitors including interns, trainees, teachers, camp counselors, and au pairs, and L international intracompany transfers, and all their dependents. This injunction is not nationwide and only applies to plaintiffs and members of the plaintiff groups. In his opinion, Judge White criticized the June 22 presidential proclamation noting it did not address the issue it was supposed to fix, namely helping the domestic economy by providing more job opportunities for Americans. “[T]he Proclamation completely disregards both economic reality and the pre-existing statutory framework. Furthermore, without any consideration of the impact on American firms and their business planning, the Proclamation abruptly changed the scope of immigration policy in the United States.”
Read moreDHS and DOL Make Key Changes to the H-1B Program and Permanent Labor Certifications and Labor Condition Applications
Earlier this month the Department of Homeland Security (DHS) and Department of Labor (DOL) published two interim final rules that make key changes to the H-1B visa program and permanent labor condition and labor condition application process. The rules, “Strengthening the H-1B Nonimmigrant Visa Classification Program” and “Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States”, were both published on October 8, 2020.
Read moreState Department Broadens National Interest Exceptions for H-1B, H-2B, L-1, and J-1 Applicants
The US Department of State (DOS) has issued guidance explaining additional ways for H-1B, H-2B, L-1, and J-1 visa applicants to overcome the travel restrictions detailed in President Trump’s June 22, 2020, presidential proclamation (PP 10052). This June 22 proclamation suspended the entry of foreign nationals into the US on H-1B, H-2B, L, and J visas until at least December 31, 2020, and also extended the suspension of entry to the US of most immigrant visa applicants through the end of the year. The DOS guidance, issued August 12, 2020, broadened the exceptions to the June 22 proclamation, but not everyone is pleased. Jesse Bless, American Immigration Lawyers Association’s (AILA) director of litigation, criticized the guidance in an interview in Forbes: “The guidance is an attempt to place new statutory requirements for these visas in violation of the Immigration and Nationality Act and, to the extent the law is ambiguous, without notice and comment to enact regulatory change.” He added: “Some may benefit, but it’s an unlawful attempt nonetheless.”
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