Tag: Immigration Updates & FAQs

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.

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.

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

• the replacement of registrant accounts with organizational accounts;
• an imminent final rule changing the H-1B cap selection process; and,
• a final rule raising petition filing fees. The filing fee rule will not impact the current registration fee of $10 for the March registration period, but will impact H-1B filing fees for selected registrations.

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.

 

 

The Office of Information and Regulatory Affairs (OIRA) cleared a rule that will allow limited stateside H-1B visa renewal.  As previously reported,  the proposed pilot program will allow 20,000 eligible participants, including Indian citizens and nationals of countries that do not require a visa reciprocity fee, to renew their H-1B visas without leaving the United States. The OIRA’s clearance of the rule on December 15, 2023 overcame the last regulatory obstacle before official publication.

A final notice with the precise program details regarding eligibility and operational aspects has not yet been published in the Federal Register but is expected by the end of December 2023. Implementation of the stateside H-1B renewal pilot is expected to begin sometime in January 2024.

Gibney will continue to monitor advancement of the H-1B pilot program and will provide updates when available.  For additional information, please contact your designated Gibney representative or email info@gibney.com

 

The U.S. Department of Labor (DOL) will solicit public input on expanding its list of Schedule A occupations eligible for streamlined immigration processing to include designated jobs in Science, Technology, Engineering, and Mathematics (STEM) fields. The action comes pursuant to the Biden Administration’s Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence, which charges federal agencies to use existing legal authority to expand the ability of highly skilled immigrants with expertise in critical areas to study, stay, and work in the U.S. by modernizing and streamlining visa criteria.

WHAT IS SCHEDULE A?

Most employment-based sponsorship for U.S. permanent resident status requires a U.S. employer to conduct a labor market test and request DOL certification that there are no qualified U.S. workers available for the offered position. Obtaining DOL labor certification entails a costly recruitment campaign, and the process currently takes at least 1.5 years to complete, often longer.   For certain occupations, described in 20 CFR § 656.5 – Schedule A, DOL has predetermined that there are not sufficient U.S. workers who are able, willing, qualified, and available to fill jobs.  Sponsoring employers seeking to fill a Schedule A position may by-pass the labor market test because DOL has pre-certified the labor shortage. Employers may petition directly to U.S. Citizenship and Immigration Services (USCIS) to sponsor an employee for permanent resident status.

Current Schedule A occupations include registered nurses and physical therapists.  The Schedule A list has not been updated in more than 30 years. Updating the Schedule A list does not require Congressional action or legislation.

WHAT DO EMPLOYERS NEED TO KNOW?

DOL is expected to publish additional information seeking comments about the proposed expansion of Schedule A by next month.  U.S. employers and other interested stakeholders will then have an opportunity to comment on the proposed expansion, identifying hard-to-fill, shortage occupations that should be pre-certified. Commentors may suggest any occupation that is hard to fill, and need not limit proposals to technology or STEM positions.  The expectation is that DOL could publish a revised Schedule A list of occupations in the first half of 2024.

Once implemented, employers seeking to sponsor a foreign national for a designated Schedule A occupation will not be required to undertake an extensive recruitment campaign to test the U.S. labor market. However, employers will still be required to obtain a Prevailing Wage Determination from DOL to ensure that hiring a foreign national into the position does not adversely impact wages and working conditions for U.S. workers.  Ideally, employers will be able to more quickly staff hard-to-fill jobs. Foreign nationals employed in STEM occupations will also benefit from getting permanent resident petitions on file with USCIS more quickly.

Gibney will continue to monitor expansion of Schedule A and will provide updates when they become available.

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

On October 23, 2023, the U.S. Department of Homeland Security (DHS) issued a notice of proposed rulemaking (NPRM) to amend its H-1B regulations. The proposal also includes provisions that would change the H-1B cap registration and selection process.

If implemented, the NPRM would:

• Address H-1B cap registration abuse by changing the way USCIS selects registrations. Under the proposed rule, USCIS would select registration by unique beneficiary to help ensure that each beneficiary has the same chance of being selected.
• Allow automatic extensions of F-1 cap-gap status from the current October 1 to April 1 of the fiscal year for which H-1B status is requested.
• Clarify the definition and qualifying criteria for what constitutes an H-1B specialty occupation.
• Codify USCIS policy to give deference to prior petition approval where there is no material change to the underlying facts of the prior petition.
• Provide more flexibility for nonprofit and government research organizations to sponsor cap-exempt H-1B petitions.

The Details

In advancing the rule, DHS aims to improve efficiencies, increase program benefits and flexibility, and strengthen the integrity of the H-1B program.

Modernize and Create Efficiencies

The NPRM

• Revises the regulatory definition for an H-1B specialty occupation to codify that a range of degrees (fields of study) may qualify an individual for a specialty occupation, though there must be a direct relationship between the required degree field(s) and the position duties.
  • A general degree requirement (e.g., a degree in business administration or liberal arts degree) without specialized studies is insufficient to qualify for an H-1B.
  • A software developer position requiring a degree in any field of engineering would not generally satisfy the requirement that the position requires the application of a body of highly specialized knowledge and a degree in a specialty field.
• Clarifies that, for purposes of establishing that a position is a specialty occupation, the qualifying criterion – a bachelor’s degree is normally required for the position – does not mean that a bachelor’s degree is “always” required.
  • This reflects current USCIS practice, but the prior administration frequently took the position that “normally” meant “always,” issuing requests for evidence and denying petitions accordingly. This provision is intended to standardize adjudications.
• Clarifies that an amended or new petition must be filed when there is a material change to the conditions of employment, including following the filing of a new Labor Condition Application (LCA) due to a change in an H-1B worker’s place of employment. The amendment must be filed before the change takes place.
• Codifies and clarifies the policy of giving deference to prior petition approvals if there have been no material changes in the underlying facts of the prior petition.
  • This provision would apply to petitions for all nonimmigrant classifications filed on Form I-129, including petitions filed for E, L, O and TN nonimmigrants.
• Requires evidence of maintenance of status if the beneficiary is seeking an extension or amendment of stay.
  • This provision would apply to E–1, E–2, E–3, H–1B, H–1B1, H–2A, H–2B, H–3, L–1, O–1, O–2, P–1, P–2, P–3, Q–1, R–1, and TN nonimmigrants.
• Eliminates the itinerary requirement if services will be performed in more than one location.
  • The requirement to obtain corresponding LCAs for worksites is unchanged.
• Allows petitioners to amend validity periods when the requested validity period expires before adjudication is completed.

Increase Benefits and Flexibility

The NPRM

• Modernizes the definition of employers who are exempt from the annual statutory cap on H-1B visas to create more flexibility for nonprofit and governmental research organizations and beneficiaries who are not directly employed by a qualifying organization.
• Provides automatic extensions of F-1 cap-gap status from the current date of October 1 to April 1 of the fiscal year for which H-1B status is requested, to avoid disruptions in status, including OPT and STEM OPT employment.
• Offers start date flexibility for certain H-1B cap-subject petitions as long as the start date does not exceed six months beyond the petition filing date.

Increase Program Integrity

The NPRM

• Changes the cap registration process to select registrations based on a unique beneficiary identifier to reduce or remove the advantage of submitting multiple registrations for the same individual by different employers to increase changes of selection.
  • While a beneficiary still could have multiple, unrelated employers submit a registration on their behalf, the beneficiary would only be entered into any given lottery once, and if selected, each employer that submitted a registration for that beneficiary would be notified of selection and would be eligible to file a petition for the beneficiary.
• Bars related entities from submitting multiple registrations for the same beneficiary.
• Codifies USCIS’s ability to deny or revoke an approved H-1B petition where the underlying registration contained a false statement.
• Codifies USCIS authority to request contracts and work orders from a petitioner where appropriate, requires that the petitioner have an actual (non-speculative) position for the H-1B worker as of the requested start date on the petition, and codifies the existing requirement that a petitioner have a bona fide job offer as of the requested start date.
• Clarifies that beneficiary-owners may be eligible for H-1B status under defined conditions.
• Codifies USCIS authority to conduct site visits, including visits to third-party worksites and home worksites.
• Clarifies that if an H-1B worker is staffed to a third party, the requirements of the third party are most relevant to determining whether the position is a specialty occupation.

What’s Next?

The public may submit comments to the rule through December 22, 2023. Once DHS reviews and considers all comments, it intends to publish one or more final rules.  A final rule addressing cap registration and selection may be in place for next year’s cap registration process.

Gibney will closely monitor advancement of this rule and will provide updates as they become available.  For questions about the rule and the notice and comment period, please contact your designated Gibney representative or email….

OVERVIEW

The Department of State released the September 2023 Visa Bulletin. Most Employment-Based Categories will hold steady with the exception of EB-2 Worldwide and EB-3 China:

• USCIS will continue to accept employment-based Adjustment of Status applications based on Final Action Dates rather than the more advanced Dates for Filing chart.
• EB-1 cutoff dates will remain the same for all countries.
• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) will advance by 3 months to July 1, 2022; all other EB-2 categories will hold steady.
• EB-3 China will advance by 3 months to September 1, 2019; EB-3 cutoff dates for all other countries will remain the same.

EMPLOYMENT-BASED (EB) PRIORITY DATE SUMMARY FOR FINAL ACTION DATES

USCIS confirmed that it will follow 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) cutoff dates remain at August 1, 2023.
• EB-1 China and India maintain a Final Action cut-off date of February 1, 2022 and January 1, 2012, respectively.

EB-2, Second Preference Category

• EB-2 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) advances by 3 months to July 1, 2022.
• China: Final Action dates hold steady at July 8, 2019.
• India:  Final Action dates hold steady at January 1, 2011.

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

• EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) maintain a cutoff date of May 1, 2020.
• China: Final Action Dates advance by 3 months to September 1, 2019.
• India: Final Action Dates hold steady at January 1, 2009.

Other Workers

• All categories hold steady from last month:
  • EB-3 Worldwide (including El Salvador, Guatemala and Honduras, Mexico, and Philippines) maintain a cutoff date May 1, 2020
  • China: September 1, 2015
  • India: January 1, 2009

EB-5: Fifth Preference Category (Immigrant Investors)

• For the EB-5 Unreserved categories (C5, T5, I5, and R5), India and China maintain a cutoff date of April 1, 2017 and September 8, 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 either “current” or 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 September Visa Bulletin, number use by USCIS and the Department of State has been steady during the fiscal year. As a result, most employment-based preference category limits and/or the overall employment-based preference limit for FY 2023 are expected to be reached during September. If at any time an annual limit is reached, the preference category would immediately be made “unavailable”, and no further requests for immigrant visas would be honored. It is likely that many individuals will be required to wait for the commencement of the new fiscal year when green card allocation resets in order to receive their green card, which will begin on October 1, 2023.

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

USCIS completed the second H-1B cap lottery for fiscal year (FY) 2024 H-1B cap on July 31, 2023. All employers with selected registrations have been notified.  Employers with selected registrations from the second lottery may file an H-1B petition for the beneficiary of a selected registration during the 90-day period running from  August 2, 2023 to October 31, 2023.

As previously reported, USCIS conducted its initial  H-1B cap lottery  in March 2023, and selected employers had a 90-day window during which to file H-1B cap petitions for selected beneficiaries.  The second lottery was conducted because the number of H-1B petitions ultimately submitted and  approved during the initial H-1B filing period  were not sufficient to meet the annual statutory H-1B cap.   H-1B cap registrations that were not selected in the initial lottery remained in a reserve and the July lottery was conducted from this reserve.

WHAT THIS MEANS FOR EMPLOYERS AND FOREIGN NATIONALS:

• Employers with selected registrations will see updates in their myUSCISaccounts, including a selection notice and details of when and where to file the H-1B cap petition.
• Only employers with selected registrations may file H-1B cap-subject petitions for FY 2024 and only for the beneficiary named in the applicable selected registration notice; no substitution of beneficiaries is permitted.
• An H-1B cap-subject petition for a selected registration must be properly filed at the designated  service center and within the filing period (August 2, 2023 to October 31, 2023) specified on the relevant registration selection notice.
• Online filing is not available for H-1B petitions. Petitioners must file by paper and must include a printed copy of the applicable registration selection notice with the FY 2024 H-1B cap-subject petition.
• Registration selection only indicates that employers are eligible to file H-1B cap-subject petitions; it does not signify that the petition will be approved.
• Petitioners filing H-1B cap-subject petitions, including those eligible for the advanced degree exemption, must submit evidence and establish eligibility for approval based on existing statutory and regulatory requirements.

ADDITIONAL INFORMATION

USCIS reports that, this year, it saw an increase in the number of registrations generally, the number beneficiaries with multiple registrations (including registrations made by different employers for the same beneficiary), and the number of registrations submitted on behalf of unique beneficiaries with only one registration. USCIS suggests that fewer petitions were filed pursuant to the first lottery because of USCIS  fraud investigations resulting in denied and revoked petitions.  Layoffs (and lack of continuing employment sponsorship opportunities for foreign nationals) also contributed to fewer  filings in the first round. If these phenomena continue, a third lottery could be needed.

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

U.S. Citizenship and Immigration Services (USCIS) announced a new version of Form I-9, Employment Eligibility Verification. Employers must use Form I‑9 to verify the identity and employment authorization of their employees.

Changes to the I-9 Form

Features of the revised I-9 form include:

• Reduced to a one-page form and is fillable on tablets and mobile devices
• Section 1 Preparer/Translator Certification is now is a standalone supplement that employers can use when necessary
• Section 3, Reverification and Rehire is a now a standalone supplement for employers to use if a rehire occurs or reverification is required
• List of Acceptable Documents was revised to include some acceptable receipts and additional guidance on automatic extensions of employment authorization documentation

Most notably, the form now includes a checkbox allowing E-Verify registered employers to indicate they examined Form I-9 documentation via live video interaction under a DHS-authorized alternative procedure rather than via physical examination.

When Should Employers Begin Using the New Form?

Employers may begin using the new form on Aug. 1, 2023, but may continue to use the 2019 version through Oct. 31, 2023. Starting November 1, 2023 all employers must use the new version.

Changes to Remote Verification Beginning August 1^st

DHS previously announced the end of temporary COVID-19 flexibilities as of July 31. However, beginning August 1^st, DHS is providing an alternative for E-Verify registered employers to examine Form I-9 documents via live video interaction, instead of the current requirement to examine documents in-person. To participate, employers must:

• Be an E-Verify participant in good standing
• Retain clear and legible copies of all documents
• Conduct a live video interaction with the employee
• Create an E-Verify case if the employee is a new hire

Employers Required to Cure Past Virtual Inspections (March 20, 2020 to July 31, 2023)

Again, DHS previously announced the end of temporary COVID-19 flexibilities as of July 31. Virtual inspections that were conducted during the COVID-19 pandemic (March 20, 2020 to July 31, 2023) must be cured via a physical inspection or, for E-Verify employers, a live video interaction, by August 30.

Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020 to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023 to satisfy the physical document examination requirement by Aug. 30, 2023.

Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by Aug. 30, 2023.

Gibney will continue to monitor for developments. For questions, please contact your Gibney representative or email info@gibney.com.

On July 27, USCIS announced that it will conduct a second lottery for the fiscal year (FY) 2024 H-1B cap. USCIS has not yet indicated when the second lottery will occur.

USCIS previously concluded its initial FY 2024 H-1B cap lottery in March 2023, and selected employers had a 90-day window during which to file H-1B cap petitions for selected beneficiaries.  The second lottery is being conducted because the number of H-1B petitions ultimately submitted during the initial H-1B filing period (April 1, 2023 to June 30, 2023) were not sufficient to meet the annual H-1B cap.   H-1B cap registrations that were not selected in the initial lottery remained in a reserve and the second lottery will be conducted from this reserve. USCIS has not yet announced how many additional registrations will be selected from the reserve.

WHAT SHOULD EMPLOYERS EXPECT NEXT?

• Employers or their designated counsel should check their registration accounts for new selection notices.
• Selected registrations are expected to have a notice indicating the selection is from a reserve registration.
• The notice will specify the 90-day filing period  during which the employer must submit the H-1B cap petition for the selected registration.
• The H-1B cap petition for the selected registration must be submitted to USCIS  within the filing period specified on the notice.
• The notice must be included with the H-1B petition submitted to USCIS during the specified filing period.
• The H-1B cap petition may only be submitted for the beneficiary named in the selected registration; employers may not substitute another beneficiary.

ADDITIONAL INFORMATION

The running of a second lottery is welcome news to employers and foreign nationals who were shut out of the initial lottery.  Last year, only one lottery was conducted, and a sufficient number of petitions were submitted and approved to meet the H-1B cap. This year, USCIS received a record 758,994 eligible H-1B cap registrations. Nonetheless, the petitions submitted pursuant to the first  lottery conducted in March were not sufficient to meet the cap.  Widespread layoffs in the technology sector may have resulted in fewer submissions pursuant to the initial round of selected registrations.  Additionally, USCIS is investigating allegations of fraud and duplicate/improper submissions in the registration process, and this, too, may have contributed to the submission of fewer petitions and the need to run a second lottery.

For additional information, you may visit the USCIS FY 2024 H-1B Cap Season site or contact your designated Gibney representative.