June 2024 Visa Bulletin Released

The Department of State released the June 2024 Visa Bulletin. USCIS will continue to accept employment-based Adjustment of Status applications based on the Final Action Dates chart. All Employment-Based Categories will hold steady and remain unchanged for June under Final Action Dates with the exception of EB-3 India which will advance by one week.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR Final Action DATES

USCIS confirmed that it will honor the Final Action Dates chart for purposes of eligibility to file an Adjustment of Status application. The Final Action Dates  are as follows:

EB-1, First Preference Category

  • EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current.
  • EB-1 China and India will hold steady with a Final Action Date cutoff of September 1, 2022 and March 1, 2021, respectively.

EB-2, Second Preference Category

  • EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will maintain a cutoff date of January 15, 2023.
  • China: Final Action Date will hold steady at February 1, 2020.
  • India:  Final Action Date will hold steady at April 15, 2012.

EB-3, Third Preference Category (Professional and Skilled Workers)

  • EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will maintain a cutoff date of November 22, 2022.
  • China: Final Action Date will hold steady at September 1, 2020.
  • India: Final Action Dates will advance by one week to August 22, 2012.

EB-3 Other Workers

  • All countries except India will hold steady from last month:
    • Other Workers Worldwide (including El Salvador, Guatemala and Honduras and Mexico) will maintain a cutoff date of October 8, 2020.
    • India will advance by one week to August 22, 2012.
    • Philippines: May 1, 2020
    • China: January 1, 2017

EB-5: Fifth Preference Category (Immigrant Investors)

  • For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cut-off date of December 1, 2020 and December 15, 2015, respectively. All other countries will remain current.
  • The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.

Individuals with a priority date that is before the published cut-off date may file an Adjustment of Status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS EXPECT?  

As noted in the June Visa Bulletin, the Dept. of State has indicated that Final Action Dates for EB-2 and EB-3 Worldwide (including Mexico and the Philippines) will likely retrogress further in July to maintain number use within applicable annual limits. With further retrogression likely being implemented next month, Employers are advised to submit Adjustment of Status applications for eligible applicants in June.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

FTC Issues Final Rule Effectively Banning Workplace Non-Compete Agreements

On April 23, 2024, the Federal Trade Commission (FTC) announced it had approved its final rule that would effectively ban workplace non-compete agreements, with limited exceptions (the “Final Rule”). The effective date of the Final Rule is 120 days after publication in the Federal Register – not after the FTC’s public announcement.

Final Rule

The Final Rule concluded that non-compete agreements are an “unfair method of competition” and a violation of Section 5 of the FTC Act. Under the Final Rule, the FTC has issued a comprehensive ban on new non-compete agreements with all workers, including senior executives. Thus, under this rule, businesses are prohibited from entering into or enforcing new non-compete agreements upon the effective date.

What About Existing Non-Compete Agreements?

As for existing non-compete agreements, those will also become unenforceable on the effective date, except for existing non-compete agreements with senior executives in policy-making positions. The Final Rule defines “senior executive” as a worker 1) in a “policy making position”; and 2) earning an actual or annualized sum of $151,164 (through salary, bonuses, and/or commissions, but excluding fringe benefits, retirement contributions, and medical/life insurance premium payments).  A “policy making position” is a business’ president, CEO or equivalent, or any other person with “policy-making authority” for the business similar to a corporate officer with policy-making authority. In turn, those who have the authority to make policy decisions controlling “significant aspects of a business entity or common enterprise.”

Other Exceptions to the Final Rule

Exempt from the Final Rule are non-compete clauses entered into with a seller of a business entity, so long as the sale involves the disposition of the person’s ownership interest in the business entity, or disposition of all or substantially all of a business entity’s operating assets. The Final Rule clarifies that a “worker” with whom the rule bans non-compete agreements also does not include a franchisee in the context of a franchisee-franchisor relationship. However, the Final Rule applies to non-compete agreements with a person who works for a franchisee or franchisor.

Further, the ban does not apply to the enforceability of non-compete agreements that are the subject of ongoing litigation at the time of the Final Rule’s publication. Specifically, the ban does not apply “where a cause of action related to a non-compete clause accrued prior to the effective date.”

Other Types of Restrictive Covenants

The FTC states in the preamble that the Final Rule does not categorically prohibit other types of restrictive covenants, such as non-disclosure or non-solicitation agreements, which do not by their terms prohibit a worker, or penalize a worker, for seeking or accepting other work or starting a business after they leave their job.

What’s Next?

The Final Rule will become effective 120 days after publication in the Federal Register. Once the Final Rule is in effect, employers will be required to provide notice to workers other than senior executives who are bound by an existing non-compete agreement that they will not be enforcing any non-compete agreements against them. The Final Rule is certain to face legal challenges. The United States Chamber of Commerce has already announced it intends to initiate litigation as early as April 24, 2024.

Employers will be well served to review their existing non-compete, confidentiality, and non-solicitation agreements to determine whether they are currently enforceable or need to be amended to protect the employer from unfair competition by former employees.

May 2024 Visa Bulletin Released

The Department of State released the May 2024 Visa Bulletin. USCIS will continue to accept employment-based Adjustment of Status applications based on the Final Action Dates chart. Most Employment-Based Categories will hold steady and remain unchanged for May under Final Action Dates.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR Final Action DATES

USCIS confirmed that it will honor the Final Action Dates chart for purposes of eligibility to file an Adjustment of Status application. The Final Action Dates  are as follows:

EB-1, First Preference Category

  • EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current.
  • EB-1 China and India will hold steady with a Final Action Date cutoff of September 1, 2022 and March 1, 2021, respectively.

EB-2, Second Preference Category

  • EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will maintain a cutoff date of January 15, 2023.
  • China: Final Action Date will hold steady at February 1, 2020.
  • India:  Final Action Date will hold steady at April 15, 2012.

EB-3, Third Preference Category (Professional and Skilled Workers)

  • EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will maintain a cutoff date of November 22, 2022.
  • China: Final Action Date will hold steady at September 1, 2020.
  • India: Final Action Dates will hold steady at August 15, 2012.

Other Workers

  • All countries will hold steady from last month:
    • Other Workers Worldwide (including El Salvador, Guatemala and Honduras and Mexico) will maintain a cutoff date of October 8, 2020.
    • India: August 15, 2012.
    • Philippines: May 1, 2020
    • China: January 1, 2017

EB-5: Fifth Preference Category (Immigrant Investors)

  • For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cut-off date of December 1, 2020 and December 15, 2015, respectively. All other countries will remain current.
  • The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.

Individuals with a priority date that is before the published cut-off date may file an Adjustment of Status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS EXPECT?  

As expected based on the information from the April Visa Bulletin, most Employment-Based categories remain unchanged with no forward movement observed in May under Final Action Dates. As very little to no forward movement is expected in the coming months with the potential for retrogression to maintain number use within applicable annual limits, Employers are advised to submit Adjustment of Status applications for eligible applicants in May.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

Initial FY 2025 H-1B Cap Selection Process Completed

On April 1 , 2024, USCIS announced that it received enough electronic registrations during the initial registration period to reach the fiscal year (FY) 2025 H-1B cap. A random selection (lottery) was conducted from the registrations properly submitted from March 6, 2024 through March 25, 2024. H-1B petitions may be filed for selected registrations starting April 1, 2024.

WHAT EMPLOYERS CAN EXPECT

USCIS has 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 selected registration during the 90-day period designated on the selection notice. Registrants’ online accounts will now be updated to show one of the following statuses for each beneficiary registered:

  • Submitted: A registration status may continue to show “Submitted” after the initial selection process. These registrations will remain in consideration for selection until the end of the fiscal year, at which point all registration statuses will either be Selected, Not Selected, or Denied. If a sufficient number of petitions are not filed and approved for selected beneficiaries with the initial 90-day filing window, USCIS may conduct another lottery from the reserve of “submitted’ registrations until the FY 2025 cap is reached.
  • Selected: Indicates that the employer may file an FY 2025 H-1B cap-subject petition for the beneficiary in the designated 90-day filing period.
  • Not Selected: Not eligible to file an H-1B cap petition based on this registration.
  • Denied – duplicate registration: Multiple registrations were submitted by or on behalf of the same registrant for the same beneficiary. If denied as a duplicate registration, all registrations submitted by or on behalf of the same registrant for this beneficiary for the fiscal year are invalid.
  • Deleted: The submitted registration has been deleted and is no longer eligible for selection.
  • Invalidated-Failed Payment: A registration payment method was declined and not reconciled, invalidating the registration.

Only petitioners with selected registrations may file H-1B cap-subject petitions for FY 2025 and only for the beneficiary in the applicable selected registration notice. Petitioners must submit evidence of the beneficiary’s valid passport or travel document used at the time of registration to identify the beneficiary.  Employers have a 90-day window during which to file the complete H-1B petition, commencing April 1, 2024.

NEW THIS YEAR:  CHANGE TO FILING LOCATIONS, FORMS, AND FEES

Beginning on April 1, 2024, all paper-filed Form I-129 petitions requesting  H-1B classification, including those with a concurrent Form I-907, Request for Premium Processing Service, and those with concurrently filed Form I-539 and/or Form I-765, must be filed at a USCIS lockbox facility.  USCIS will also accept online filings of I-129H petitions filed alone or with a request for premium processing service

The new version of paper Form I-129 (dated April 1, 2024) is required as of April 1, 2024. Petitions submitted with an older version of the form will be rejected.

The filing fee for H-1B petitions increased substantially effective April 1.  The H-1B cap filing fees for companies with more than 25 employees now total $3,380 (includes base I-129 fee of $780; ACWIA fee of $1,500; anti-fraud fee of $500; and new asylum program fee of $600.)  Non-profit organizations and employers with 25 or fewer employees will pay reduced fees. The premium processing (Form I-907) fee also increased to $2,805 on February 26, 2024. Additional information about USCIS filing fee increases may be found here.

Information about the cap registration process is available at the USCIS H-1B Electronic Registration website.  For additional information please contact your designated Gibney representative or email info@gibney.com.

European Commission Adopts Toolbox to Combat Counterfeiting

The European Commission has adopted a toolbox to combat counterfeiting and help brands enforce their intellectual property rights. The toolkit builds on the Commission’s 2020 Intellectual Property Action Plan to enhance IP enforcement and the 2022 Digital Services Act.

The goals of the toolbox are to foster collaboration between rights holders, service providers, and law enforcement, and encourage best practices, including using modern tools and technologies. The toolkit also offers special recommendations for small and medium-sized enterprises (SMEs).

Toolkit Features
Key recommendations include:

  • Single contact: designating a key point for IP enforcement matters and extending the use of tools such as the IP Enforcement Portal
  • Memorandum of Understanding: Encouraging signatories to the Memorandum of Understanding on the sale of online counterfeit goods to seek ‘trusted flagger status’ under the Digital Services Act to be given priority when submitting notices of illegal content
  • Adapting procedures to combat counterfeiting: addressing issues like mirror websites with dynamic injunctions, optimizing information sharing in court proceedings, and ensuring appropriate compensation for damages
  • Promoting alternative dispute resolution (ADR): promoting ADR as a cost-effective and efficient option for IP disputes, particularly for cross-border disputes and SMEs
  • Increase penalties: Maximum sanctions on serious criminal IP offences
  • Empower market surveillance authorities to further detect and combat counterfeiting.
  • Counterfeit products disposal: More cost-effective and ecological storage/disposal practices
  • AI and virtual worlds: using blockchain for supply chain traceability and content recognition systems to detect counterfeiting and pirated goods
  • Training: Integrating IP content in national training and education curricula for law enforcement

Resources for SMEs
Recognizing SMEs are particularly vulnerable in this landscape than larger companies, there are a number of specific recommendations:

  • New “IP scan enforcement voucher” service: reimburses the costs incurred by SMEs seeking experts’ advice on enforcement and protection
  • A Cybertheft Prevention Toolkit: Provides awareness-raising materials and trainings
  • AI checklist: guidance on how SMEs can use AI without compromising their intangible assets

For more information, view the fact sheet.

For questions about counterfeiting protection and best practices, email info@gibney.com.

FY 2025 H-1B Cap Registration Period Extended

USCIS has extended the fiscal year 2025 (FY 2025) H-1B cap registration period. The new deadline to submit cap registrations is Monday, March 25, 2024 at noon Eastern Daylight Time. The extension comes after employers and their legal representatives encountered numerous technical problems with the reconfigured USCIS electronic registration system, preventing the submission and payment of registrations.

Registration commenced March 6, 2024, and was supposed to close at Noon on March 22. Employers intending to file H-1B cap petitions  now have a few extra days to complete registrations.  Employers must still use  their USCIS online accounts to submit registrations by the March 25 deadline.  Despite the extended registration period, USCIS still expects to conduct the random selection process and notify selected registrants by March 31, 2024.

Gibney will provide relevant updates as announced.  General information about FY 2025 H-1B cap registration process is available  here.  For additional information, please contact you designated Gibney representative or email info@gibney.com.

April 2024 Immigration Visa Bulletin Released

The Department of State released the April 2024 Visa Bulletin. USCIS will continue to accept employment-based Adjustment of Status applications based on the Final Action Dates chart. Most employment-based categories will advance in April but limited advancement is projected for the coming months:

  • EB-1 China Final Action Date will advance by six weeks to September 1, 2022.
  • EB-1 India Final Action Date will advance by five months to March 1, 2021.
  • EB-2 Final Action Date for all countries aside from India and China will advance by seven weeks to January 15, 2023. India will advance by six weeks to April 15, 2012 and China will advance by one month to February 1, 2020.
  • EB-3 Professional/Skilled Worker Final Action Dates for all countries aside from India and China will advance by two and a half months to November 22, 2022. India will advance by six weeks to August 15, 2012. China will hold steady at September 1, 2020.
  • S. Dept. of State expects very little to no forward movement for employment-based categories in the coming months.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR Final Action DATES

USCIS confirmed that it will honor the Final Action Dates chart for purposes of eligibility to file an Adjustment of Status application. The Final Action Dates  are as follows:

EB-1, First Preference Category

  • EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current.
  • EB-1 China and India will advance moderately with a Final Action Date cutoff of September 1, 2022 and March 1, 2021, respectively.

EB-2, Second Preference Category

  • EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will advance by seven weeks to January 15, 2023.
  • China: Final Action Date will advance by one month to February 1, 2020.
  • India:  Final Action Date will advance by six weeks to April 15, 2012.

EB-3, Third Preference Category (Professional and Skilled Workers)

  • EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will advance by two and a half months to November 22, 2022.
  • China: Final Action Date holds steady at September 1, 2020.
  • India: Final Action Date will advance by six weeks to August 15, 2012.

Other Workers

  • Slight advancement for Worldwide, Mexico, and India Other Workers. All other categories hold steady from last month:
    • Other Workers Worldwide (including El Salvador, Guatemala and Honduras and Mexico) will advance by one month to October 8, 2020.
    • India will advance by one and a half months to August 15, 2012.
    • Philippines: May 1, 2020
    • China: January 1, 2017

EB-5: Fifth Preference Category (Immigrant Investors)

  • For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cut-off date of December 1, 2020 and December 15, 2015, respectively. All other countries will remain current.
  • The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.

 

Individuals with a priority date that is before the published cut-off date may file an Adjustment of Status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS EXPECT?  

As specified in the Final Action Dates chart of the April Visa Bulletin, most employment-based Categories will advance for the month of April. However, the U.S. Dept. of State indicates that very little to no forward movement is expected in the coming months. Further, while it is anticipated that the April Final Action Dates may remain in effect until the end of the fiscal year (September 30, 2024), depending on demand and usage, retrogression of cut-off dates may be required at some point to maintain number use within applicable annual limits.  The determination of the actual monthly Final Action Dates is subject to fluctuations in applicant demand and other variables.

Eligible individuals should submit Adjustment of Status applications in April as it is possible that visa retrogression may occur later in the year.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

March 2024 Immigration Visa Bulletin Released

The Department of State released the March 2024 Visa Bulletin. In March, USCIS will accept employment-based Adjustment of Status applications based on the more modest Final Action Dates chart for the first time this fiscal year. Many of the March Visa Bulletin Final Action Dates are more favorable than the February Visa Bulletin Final Action Dates, but they are not as favorable as the February Dates for Filing chart currently in effect. Some key Final Action Dates follow:

  • EB-1 China Final Action Date will advance by two weeks to July 15, 2022.
  • EB-1 India Final Action Date will advance by one month to October 1, 2020.
  • EB-2 Final Action Date for all countries aside from India and China will advance by one week to November 22, 2022. EB-2 India and China will hold steady at March 1, 2012 and January 1, 2020, respectively.
  • EB-3 Professional/Skilled Worker Final Action Date for all countries aside from India and China will advance by one week to September 8, 2022. India and China will hold steady at July 1, 2012 and September 1, 2020, respectively.
  • EB-5 India and China Unreserved Final Action Date will hold steady at December 1, 2020 and December 15, 2015, respectively.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR Final Action DATES

As noted above, USCIS confirmed that it will honor the Final Action Dates chart for purposes of eligibility to file an Adjustment of Status application. The March Final Action Dates  are as follows:

EB-1, First Preference Category

  • EB-1 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) remains current.
  • EB-1 China and India will advance modestly with a Final Action Date cutoff of July 15, 2022 and October 1, 2020, respectively.

 EB-2, Second Preference Category

  • EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will advance by one week to November 22, 2022.
  • China: Final Action Date holds steady at January 1, 2020.
  • India:  Final Action Date holds steady at March 1, 2012.

EB-3, Third Preference Category (Professional and Skilled Workers)

  • EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico and Philippines) will advance by one week to September 8, 2022.
  • China: Final Action Date holds steady at September 1, 2020.
  • India: Final Action Date holds steady at July 1, 2012.

Other Workers

  • Slight advancement for Worldwide and Mexico. All other categories hold steady from last month:
    • Other Workers (including El Salvador, Guatemala and Honduras and Mexico) will advance by one week to September 8, 2020.
    • Philippines: May 1, 2020
    • China: January 1, 2017
    • India: July 1, 2012

EB-5: Fifth Preference Category (Immigrant Investors)

  • For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cut-off date of December 1, 2020 and December 15, 2015, respectively. All other countries will remain current.
  • The EB-5 “Set-Aside” categories (Rural, High Unemployment, and Infrastructure) will remain current.

Individuals with a priority date that is before the published cut-off date may file an Adjustment of Status application based on the dates outlined above.

WHAT SHOULD EMPLOYERS EXPECT?  

As specified in the Final Action Dates chart of the March Visa Bulletin, modest advancement across several employment-based visa categories is noted. As this is the first time this fiscal year that USCIS is honoring the more modest Final Action Dates chart for filing, applicants may find that their priority date is no longer available for purposes of filing an Adjustment of Status application in March. Accordingly, Employers are advised to submit Adjustment of Status applications for eligible applicants in February as it is uncertain if or when USCIS will honor the more advanced Dates for Filing chart again this fiscal year. With continued increased demand across all eligible employment-based categories and extensive processing delays associated with the PERM process, Employers may wish to consider commencing the green card process earlier for foreign national employees.

For additional information, please contact your designated Gibney representative or email info@gibney.com.

Plan Now for FY 2025 H-1B Cap Registration

U.S. Citizenship and Immigration Services (USCIS) will conduct its annual electronic registration process for the Fiscal Year (FY) 2025 H-1B cap from March 6, 2024 to March 22, 2024.

This year USCIS is implementing changes to the cap registration process, cap selection process, and post-selection petition filing process.

As in prior years, employers should start planning for cap registration now by identifying foreign nationals they intend to register for the H-1B cap lottery.

GENERAL OVERVIEW

  • Cap-subject U.S. employers intending to sponsor foreign nationals for H-1B status must first register each intended beneficiary electronically with USCIS during the cap registration period held in March.
  • The current cap registration fee is $10 for each individual registered. The fee is solely for registration of the intended beneficiary.
    • The fee is not refunded if the registration is not selected, and it is not applied to the H-1B petition filing fee if a petition is ultimately filed for a selected beneficiary.
  • The number of registrations submitted are expected to exceed the number of H-1B visas available under the annual statutory quota.
  • There will be a random selection process once the initial registration period closes in March.
  • After USCIS conducts the random selection process, it will notify employers of selected beneficiaries. Employers may only sponsor H-1B cap petitions for individuals selected through the registration process; no substitution of beneficiaries is permitted.
  • After registration selection, employers will have a 90-day period during which they may file H-1B cap petitions for selected beneficiaries.
  • The 90-day H-1B cap petition filing period is expected to start no later than April 1, 2024.
  • If by the end of the first filing window (June 30, 2024) USCIS has not received enough H-1B petitions to reach the annual quota, USCIS may conduct a second lottery from the pool of previously unselected registrations. USCIS will then designate subsequent filing periods until all H-1B visas are allocated to reach the annual statutory quota.

HIGHLIGHTS

  • In completing the registration, employers must identify whether the intended beneficiary qualifies for the H-1B visa pursuant to either the advanced degree cap (reserved for individuals holding a U.S. master’s degree or higher in a field of study related to the offered position) or the standard H-1B cap (reserved for individuals holding a Bachelor’s degree or higher in a field of study related to the offered position).
  • Employers may register multiple individuals at once, using a single online “batch” submission.
  • Employers may only submit one registration per intended beneficiary in any fiscal year. If an employer registers an individual more than once in the same fiscal year, all registrations submitted by that employer for that individual will be invalidated.
  • The employer’s authorized legal representative may prepare and submit cap registrations for the employer.

WHAT SHOULD EMPLOYERS DO NOW?

Employers should work with legal counsel now to identify current or prospective employees who may require an H-1B petition to work in the U.S., and to take appropriate steps to ensure timely online registration of identified candidates.

Potential beneficiaries for H-1B cap registration include, but are not limited to:

  • New hires or candidates outside the U.S. who do not currently hold a valid U.S. work visa
  • F-1 students completing a qualifying course of study or F-1 students currently working in the U.S. pursuant to Optional Practical Training (OPT) or STEM OPT
  • J-1 interns/trainees who are currently working in the U.S. pursuant to a DS-2019 exchange visitor program
  • L-1, TN, E-1, E-2, E-3, O-1, and/or other nonimmigrant visa holders who wish to change to H-1B status in the future
  • Dependent spouses of current nonimmigrant visa holders who may lack work authorization.

ADDITIONAL INFORMATION

Not All H-1B Petitions are Subject to the Cap
Certain individuals and employers are not subject to the annual H-1B cap or cap registration, including:

  • Individuals who currently hold H-1B status and who were previously counted against the cap. In most instances, individuals who were counted against the cap in a previous fiscal year are not again subject to the annual cap. This may include petitions:
    • to extend status for current H-1B visa holders;
    • to amend H-1B status due to changes role or location changes for current H-1B workers;
    • to change H-1B employers; and,
    • for concurrent H-1B employment with an additional employer.
  • Individuals who are citizens/nationals of Singapore and Chile may instead be eligible for the H-1B1 visa.
  • Cap exempt organizations. H-1B cap petitions filed for employment at institutions of higher education or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations, are cap-exempt. H-1B petitions for employment at these institutions are not subject to an annual quota and may be filed any time throughout the year.

H-1B Categories and Annual Quotas

Cap-subject H-1B petitions generally fall within two categories:

  • “Standard” petitions. The minimum educational requirement for a standard H-1B petition is a Bachelor’s degree or professionally evaluated experience equivalent. Standard cases are capped at 65,000 visas annually with approximately 6,800 reserved for nationals of Chile and Singapore.
  • “Advanced degree” or “Master’s cap” petitions. The minimum educational requirement for an advanced degree H-1B petition is a Master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree holders each fiscal year.

As a reminder, as previously reported, this year USCIS is implementing new organizational accounts, a new selection process, new petition forms, and new petition filing fees.  Please contact immigration counsel now to ensure you are well-positioned for H-1B cap season.

Gibney will provide additional updates as they are announced. In the interim, additional information is available here.  If you have questions about H-1B cap or if you require assistance with cap registration, please contact your Gibney representative or email info@gibney.com.

FY 2025 H-1B Cap Season Launched with Important Changes

USCIS announced  that the initial electronic registration period for the fiscal year (FY 2025) H-1B cap season will open at noon Eastern on March 6, 2024 and will run through noon Eastern on March 22, 2024.

USCIS also announced important updates to the H-1B cap program this year, including

FY 2025 H-1B CAP DETAILS

  • Cap-subject H-1B employers intending to sponsor H-1B workers must first register each intended beneficiary electronically with USCIS during the designated registration period (March 6 through March 22).
  • While USCIS announced a new fee schedule, the cap registration fee will remain $10 for the March registration cycle.
  • If the number of registrations received by March 22 exceeds the number of H-1B visas available under the annual quota as expected, USCIS will randomly select a sufficient number of registrations projected to reach the FY 2025 H-1B cap.

NEW THIS YEAR:

  • USCIS is implementing “organizational” accounts to replace “registrant” accounts. US employers and their legal representatives must use the new organizational accounts to submit cap registrations this year. Intending registrants will be able to create new organizational accounts beginning at noon Eastern on February 28, 2024. Employers with existing registrant accounts are able to upgrade to an organizational account without creating a new account. It is important to work with immigration counsel to ensure the organizational account is properly configured.
  • USCIS has begun implementation of a series of rules to the amend the H-1B program, as previously summarized, starting with the H-1B cap selection process. Specifically, USCIS will implement a beneficiary-centric process for registration selection. USCIS will require registrants to provide valid passport information (or valid travel document information) for each beneficiary.  Each beneficiary must only be registered under one passport/travel document. The passport must be the one the beneficiary intends to use for the H-1B visa.
  • The new USCIS rule raising fees for H-1B and other petitions will take effect April 1, and thus will impact H-1B cap petition filings for selected registrations. As of April 1, the Form I-129 filing fee for an H-1B petition filed by a for-profit employer with more than 25 employees will increase 70%, from $460 to $780. (This does not include the ACWIA and Fraud Fee).   A USCIS FAQ on the new fee rule is available here.
  • USCIS will publish a new edition of Form I-129 which must be used for H-1B petition filings on and after April 1, 2024.
  • USCIS intends to allow online filing of Form I-129 for H-1B cap petitions and some other petitions. However, USCIS has yet to provide detailed information about the protocol for online filings and how these will integrate with the newly formed organizational accounts. Employers may continue to submit paper Form I-129 petitions, including H-1B cap petitions. Paper filings will be transitioned from USCIS Service Centers to USCIS lockbox filings.
  • USCIS will allow start date flexibility for certain H-1B cap-subject petitions, allowing employers to select a start date that is after October 1 of the relevant fiscal year in some instances.
  • The new rule codifies and strengthens the authority of USCIS deny or revoke H-1B petitions where the underlying registration contains a false attestation or is otherwise invalid.

AS BEFORE:

  • Employers may file an H-1B cap petition only for the beneficiary named in the selected registration; no substitutions are permitted.
  • USCIS expects to conduct the random selection and notify employers of selected registrations by March 31, 2024.
  • After the first round of selection, employers will have a 90-day window during which to file H-1B cap petitions for the beneficiary named in the selected registration. The petition filing period is expected to start no later than Monday, April 1, 2024.
  • If by the end of the first 90-day filing window USCIS has not received enough petitions to reach the annual quota/H-1B cap, USCIS may designate subsequent filing windows until the H-1B statutory quota is reached.

CONCLUSION

Given the many changes to the H-1B cap registration and H-1B petition filing process this year, including the need to establish organizational accounts to submit registrations, it is more important than ever to work closely with immigration counsel to ensure cap registrations are timely and properly submitted and that filed H-1B petitions meet all new procedural requirements.  Moreover, USCIS is expected to publish additional rule(s) that will substantively alter the H-1B visa program. To ensure that you are “cap ready” and up-to-speed on the most recent changes, please contact your designated Gibney representative, or email info@gibney.com.