February 12, 2019

Gibney Attorneys to Speak at New York State Bar Association Immigration Law 2019

Gibney is participating in the New York State Bar Association (NYSBA) event Immigration Law 2019: Skills and Practice CLE on Monday, February 25, 2019. The event will take place at the Convene Conference Center from 9:00 a.m. – 4:30 p.m.
Topics include:
  • Immigration Law Basics and the Ethical Need for Lawyers in Immigration Proceedings
  • Family Based Immigration
  • Cultural Sensitivity in Working with Immigrant Clients
  • Deportation Defense and Removal Basics
  • Overview of Business Immigration Law.

This event is sponsored by the NYSBA’s Committee on Immigration Representation and the Committee on Continuing Legal Education.

Immigration attorneys Claire Razzolini and Ruby Li will present “The Overview of Business Immigration Law” from 3:10 p.m. – 4:25 p.m. Zarina Syed is a member of the NYSBA’s Committee on Immigration Representation and helped to coordinate the program.
January 30, 2019

DHS to Change H-1B Cap Lottery Selection Process

On January 30, 2019, the Department of Homeland Security (DHS) announced that it will publish a final rule on January 31, 2019 to amend regulations governing the H-1B cap process. Some changes will take effect for H-1B cap petitions filed this year (April 1, 2019) while other changes will be implemented for cap petitions filed in fiscal year (FY) 2021.

New this Year: Reversed H-1B Cap Lottery

This year, U.S. Citizenship and Immigration Services (USCIS) will reverse the order of the H-1B cap lottery. Currently there are two H-1B cap lotteries: the regular H-1B cap lottery and the H-1B cap lottery for U.S. advanced-degree holders, for which an additional 20,000 visas are available. Historically, USCIS has held the advanced degree lottery first and petitions not selected in that lottery were added to the regular lottery. The new rule will reverse the lottery. USCIS will conduct the regular lottery first, and upon completion, USCIS will conduct the advanced degree cap lottery for the remaining petitions for beneficiaries holding advanced degrees from U.S. universities. USCIS predicts that this change will result in 16% more advanced-degree holders being selected in the H-1B regular lottery.

Implementation of H-1B Cap Electronic Registration Requirement Postponed

The final rule also will introduce an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions; however, this registration requirement will be suspended for the upcoming FY2020 H-1B cap season. USCIS expects to implement this registration requirement for future cap seasons, once user testing has been completed and it can be ensured that the system and process are fully functional. For information on how the electronic registration requirement is expected to work, please see our alert USCIS Proposes to Modify FY2020 H-1B Cap Process.

Postponement of the registration requirement until next year has been generally met with relief given widespread concerns about the feasibility of creating and successfully implementing a system for this year’s H-1B cap filing period. Looking ahead, USCIS indicated it will conduct outreach to ensure petitioners understand how to access and use the system prior to implementation next year. Once implemented, the registration system is expected to lower costs for employers and increase government efficiency in managing the H-1B cap process and adjudicating H-1B cap petitions.

What Should Employers Do Now?

With increasing demand for H-1B workers, we encourage employers to identify potential H-1B cap cases now and work with immigration counsel to take appropriate steps to ensure timely preparation and filing of cases when the H-1B cap filing period opens on April 1, 2019. Last year, the H-1B cap petition quota was reached during the first week of filing for the sixth consecutive year. We anticipate that the H-1B quota will be reached quickly again this year. This means that employers should plan to file all H-1B cap petitions by April 1, 2019. Prior to filing any petitions, employers must work proactively with counsel to vet cases for eligibility, obtain credential evaluations, and secure Labor Condition Applications from the U.S. Department of Labor.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

January 30, 2019

Immigration Attorneys to Participate in NYSBA Immigration Law 2019 Program

Gibney is participating in the New York State Bar Association’s Immigration Law 2019: Skills and Practice CLE on Monday, February 25, 2019.

The event will take place at the Convene Conference Center from 9:00 a.m. – 4:30 p.m. and topics will include:

  • Immigration Law Basics and the Ethical Need for Lawyers in Immigration Proceedings
  • Family Based Immigration
  • Cultural Sensitivity in Working with Immigrant Clients
  • Deportation Defense and Removal Basics
  • Overview of Business Immigration Law

This event is sponsored by the NYSBA’s Committee on Immigration Representation and the Committee on Continuing Legal Education.

Immigration Partner J. Claire Razzolini and Associate Ruby Li will present “The Overview of Business Immigration Law” from 3:10 p.m. – 4:25 p.m.

Senior Counsel Zarina Syed is a member of the NYSBA’s Committee on Immigration Representation and helped to coordinate the program.

January 30, 2019

Shutdown Ends and Immigration Services Resume

On January 25, 2019, President Trump signed a stopgap spending bill to re-open the U.S. government. Federal agencies affected by the 35-day shutdown have resumed operations and will be funded until February 15, 2019.

E-Verify also resumed operations, and the Department of Homeland Security provided instructions for participating employers to ensure compliance:

  • Employers who participate in E-Verify must create an E-Verify case by February 11, 2019 for each employee hired while E-Verify was not available.
  • Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If the case creation date is more than three days following the date the employee began working for pay, select “Other” from the drop-down list and enter “E-Verify Not Available” as the specific reason.

For additional details regarding E-Verify compliance during the shutdown, please visit the E-Verify site.

The situation posed by the federal government shutdown remains fluid. If another shutdown occurs on or after February 15, 2019, there may be further impact on immigration-related services such as E-Verify. For further information on the U.S. government agencies and services likely to be impacted if there is another shutdown, please see Immigration Alert: Potential Government Shutdown and Immigration Impact.

Gibney will be closely monitoring the situation and provide updates as necessary. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

January 28, 2019

USCIS Resumes Premium Processing for Fiscal Year 2019 H-1B Cap Petitions

Effective January 28, 2019, USCIS is resuming premium processing for all fiscal year (FY) 2019 H-1B cap petitions. Petitioners may now interfile requests for premium processing of H-1B cap petitions that were filed in April 2018 and are still pending.  Petitioners who have received Requests for Evidence (RFEs) on FY 2019 H-1B cap petitions may also submit premium processing requests when filing RFE responses.  A request for premium processing service must be made on Form I-907 and must be accompanied by the $1,410 filing fee.  USCIS then guarantees a 15-day processing time for the petition. If USCIS does not take certain adjudicative action within the 15 calendar day processing time, USCIS refunds the petitioner’s premium processing service fee and continues with expedited processing of the petition.

Premium processing remains suspended for H-1B petitions requesting new employment, amendments to existing employment, or changes of employer. This suspension is projected to remain in effect until February 19, 2019. Petitioners who are filing H-1B extension of status petitions with no material change to the job, as well as certain cap-exempt employers, may continue to request premium processing service.

Gibney is actively monitoring developments and we will provide an update when premium processing for additional H-1B petitions is reinstated.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

January 22, 2019

Plan Now for H-1B Cap Filings

Now is the time of year when employers should identify any current or future employees who may require a cap-subject H-1B petition to work in the U.S. Under current rules, the first day to file H-1B cap petitions is April 1, 2019, for an employment start date of October 1, 2019.

What’s New this Year?

This year, employers face greater uncertainty due to the Department of Homeland Security’s recent publication of a proposed rule that could substantially alter the H-1B cap preparation and filing process.  Specifically, the Administration has proposed to implement an online pre-registration period. Employers would register intended cap petition beneficiaries online, and U.S. Citizenship and Immigration Services (USCIS) would conduct a lottery of the registrants. Employers would only file H-1B cap petitions for registrants selected in the lottery, during a filing window established by USCIS. For additional details on the proposed changes, see Gibney’s Immigration Alert: USCIS Proposes to Modify FY2020 H-1B Cap Process.

The proposed rule was sent to the Office of Management and Budget (OMB) for review on January 14, 2019. OMB has 90 days to review the rule, and the Administration has indicated it would like to implement the rule by April 2019. However, the Administration has also indicated that it could postpone implementation of the pre-registration process until next year.

What Should Employers Do Now?

Because it is highly uncertain whether USCIS will be able to implement the pre-registration process this year, employers may need to prepare to file petitions with USCIS starting on Monday, April 1, 2019. With increasing demand for H-1B workers, we encourage employers to identify potential H-1B cap cases now and work with immigration counsel to take appropriate steps to ensure timely preparation and filing of cases.

Why Start Planning Now?

Last year, USCIS received more than 190,000 H-1B cap-subject petitions, far surpassing the 85,000 visas available, and the H-1B cap petition quota was reached during the first week of filing for the sixth consecutive year. We anticipate that the H-1B quota will be reached quickly again this year. This means that absent a pre-registration process, employers should plan to file all H-1B cap petitions by April 1, 2019. Prior to filing any petitions, employers must work proactively with counsel to vet cases for eligibility, obtain credential evaluations, and secure Labor Condition Applications from the U.S. Department of Labor.

H-1B Petition Categories

H-1B cap cases generally fall within two categories:

  • “Standard” Cap Petitions. The minimum educational requirement is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 annually.
  • U.S. Advanced Degree Petitions. The beneficiary must hold an advanced degree, defined as 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 cases each fiscal year.

Who Should Be Considered for an H-1B Cap Petition?

Potential beneficiaries include, but are not limited to:

  • New hires from overseas
  • F-1 students completing a qualifying course of study or working pursuant to Optional Practical Training
  • Some L-1 visa holders
  • TN, E-3 and other nonimmigrant status holders who wish to change to H-1B status in the coming year
  • H-4 Dependent EAD holders. The Administration has indicated that it intends to eliminate work authorization eligibility for the H-4 spouses of certain H-1B visa holders. Employers may wish to consider filing cap petitions for these employees. In addition, employers may wish to evaluate options for L-2 or E dependent EAD holders
  • Certain DACA recipients

A Reminder – H-1B Petitions Not Subject to the Cap

Certain H-1B petitions are not counted against the annual cap, including:

  • Individuals in H-1B Status Previously Counted Against the Cap. In most cases, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extensions of status for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
  • Petitions for Exempt Organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt.

Gibney will be closely monitoring all proposed changes to policy and procedure and will provide updates. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

January 10, 2019

Immigration Group Expands with Addition of Three New Associates

The Immigration Group has welcomed three new associates.

Michele Guardado, Associate, has joined the New York office. She has experience serving corporations, individuals and families in obtaining their business and personal immigration objectives. Michelle attended Maurice A. Deane School of Law at Hofstra University and St. John’s University.

Beula Illingsworth, Associate, has joined the New York office. She practices in the area of U.S. Immigration and Nationality Law, concentrating in employment-based immigration. Beula attended New York Law School and the University of Florida.

Wesley Cheung, Associate, joined the San Francisco office. Wesley assists corporate clients in obtaining non-immigrant and immigrant visas. He served as a student advocate in the school’s Civil Rights Clinic as well as serving in the Immigration Law Clinic and working with a legal aid organization in the San Francisco Bay Area. Wesley attended the University of California, Davis School of Law.

Gibney’s Immigration Group creates programs that reflect the latest developments in immigration law and ensure ongoing worksite compliance. We advise employers on all types of immigration transactions and compliance issues including those applicable to business visitors, short-term assignees, expatriates and local hires.

January 3, 2019

EB-1 Immigrant Visa Backlogs and Potential Impact

The U.S. Department of State (DOS) recently released the January 2019 Visa Bulletin. The employment-based first preference (EB-1) category, reserved for multinational executives and managers, individuals of extraordinary ability, and outstanding researchers, remains backlogged for all countries.

Background: What is Immigrant Visa Retrogression?

Each year, by law, 140,000 employment-based immigrant visas (green cards) may be issued to qualified applicants. The visas are distributed among five employment-based (EB) preference categories and then allocated by country of birth according to Congressionally-mandated per country quotas. The EB preference categories are summarized in the monthly Visa Bulletin. Visa retrogression occurs when the number of individuals seeking a green card exceeds the number of visas available in the applicable EB preference category and specific country of birth.  A “cut-off date” is then set and published in the Visa Bulletin. A queue to apply for the green card ensues and a foreign national is assigned a place in line based on his/her priority date.

For employment-based immigrants, the priority date is determined by the date that a PERM labor certification application is filed with the U.S. Department of Labor (DOL) for the sponsored foreign national employee.  In instances where a PERM labor certification is not required (e.g., for EB-1 petitions and EB-2 National Interest Waiver petitions), the priority date is determined by the date that an I-140 immigrant petition is filed with U.S. Citizenship and Immigration Services (USCIS).  In order for a foreign national to apply for a green card, his/her priority date must be available or “current” on the monthly DOS Visa Bulletin.  An immigrant visa number is only available when the priority date is earlier than the cut-off date shown on the Visa Bulletin for the applicable EB preference category and country of birth.

Historically visa retrogression has been severe for foreign nationals born in China and India, particularly in the EB-2 and EB-3 preference categories and the result has been a multi-year wait to file green card applications.  More recently, retrogression has impacted foreign nationals from every country who fall within the EB-1 category.  While the EB-1 category has experienced retrogression for short periods in the past, it has not been prolonged, and typically has only occurred at the end of the fiscal year, as the supply of immigrant visas for that year was depleted.

What is the EB-1 Retrogression Forecast and What Does it Mean for Foreign Nationals?

  • Over the next 8 to 12 months, the cut-off date for the EB-1 category is projected to advance to October 1, 2017 for Indian and Chinese nationals, and to June 1, 2018 for all other nationalities (EB-1 Worldwide). While priority cut-off dates are expected to advance, EB-1 Worldwide will likely remain backlogged for the duration of the fiscal year (through September 30, 2019).  Such a prolonged EB-1 backlog is unusual, and may result in multinational managers and executives, individuals of extraordinary ability, and outstanding researchers waiting for lengthy periods before they may file green card applications.
  • Foreign nationals who hold L-1 Intracompany Transferee nonimmigrant visa status could reach their visa maximum stay limit before they are eligible to apply for a green card, potentially resulting in interrupted U.S. work authorization and the need to depart the U.S. at the conclusion of their authorized temporary period of stay.
  • Lengthy employment-based visa retrogression also denies sponsored foreign nationals and their dependent family members access to ancillary benefits that stem from the filing of an I-485, Adjustment of Status (green card) application. These benefits include eligibility for temporary international travel authorization, unrestricted U.S. work authorization for dependents, and the flexibility for the principal applicant to change jobs and employment locations once the I-485 application is pending for at least 180 days.
  • The inability to apply for a green card may also result in the principal applicant’s dependent children (under age 21 and unmarried) “aging out” (i.e., turning 21). When a dependent child turns 21, he/she loses eligibility for dependent nonimmigrant visa status (such as L-2 and H-4 status), and may also lose eligibility to apply for a green card as the dependent of the principal applicant when an immigrant visa number finally becomes available.

Possible Alternative Strategies for Employers and Foreign National Employees

  • Immigrant Visa Strategies: Immigrant visas in the EB-2 category are available for nationals of countries other than India and China and in the EB-3 category for nationals of countries other than India, China, and the Philippines. Employers may consider sponsoring EB-2 advanced degree professional or National Interest Waivers petitions or EB-3 professional or skilled worker petitions for foreign nationals who otherwise qualify for EB-1.   This option would primarily benefit individuals born in countries other than India and China, as these foreign nationals are experiencing more severe retrogression in the EB-2 and EB-3 categories. EB-2/EB-3 Worldwide availability may be short-lived, however. If sponsorship in these preference categories continues to increase, EB-2/EB-3 Worldwide is likely to experience visa retrogression as well.
  • H-1B Nonimmigrant Visa: To maintain uninterrupted temporary work authorization while waiting for green card issuance, employers may wish to explore changing L-1 nonimmigrant visa holders to H-1B status, where appropriate. The American Competitiveness in the 21st Century Act (AC21) permits certain H-1B visa holders to continue to extend their nonimmigrant visa status beyond their visa maximum stay date while subject to visa retrogression and waiting for green card issuance.  In contrast, L-1 visa holders are not protected by AC21 and are not permitted to extend their nonimmigrant visa status past the maximum stay date. As a result, foreign national employees in L-1 status reaching their nonimmigrant visa maximum stay date could be required to depart the U.S. if they are subject to visa retrogression and unable to apply for their green card prior to their visa maximum stay date. Changing to H-1B status may allow the sponsored foreign national employee to take advantage of AC21 protection and continue to work in the U.S. without interruption until a green card can be issued.
  • Other Nonimmigrant Visa Options: Employers may wish to consider whether L-1 visa holders might also qualify for another nonimmigrant visa classification, such as H-1B1 Specialty Occupation status (for Chilean and Singaporean professionals), O-1 extraordinary ability status, TN status (for Mexican and Canadian professionals), E-2 Treaty Trader/Investor status, or E-3 Specialty Occupation Status (for Australian professionals), as these categories do not have fixed visa maximum stay dates.   However, it should be noted that these strategies may have potential drawbacks that should be considered in the context of the particular facts and circumstances of each case.
  • Overseas Assignments: Employers may wish to consider arranging temporary overseas assignments for employees, as time spent working for an employer outside of the U.S. does not count toward the L-1 visa maximum stay date. In addition, the permanent residence process can be pursued while a foreign national employee is situated outside the U.S.

Looking Ahead

Under the current Administration, it is unlikely that Congress will act to increase the statutory limit of 140,000 employment-based immigrant visas that may be issued each year. Therefore, it is expected that visa retrogression will continue to complicate both nonimmigrant and immigrant visa strategies and workforce planning for employers for the foreseeable future.  We encourage employers to work with their designated Gibney representative to troubleshoot and explore the full range of immigrant and nonimmigrant visa options in an effort to avoid interruptions in U.S. work authorization for valued foreign national employees.

For more information on immigrant visa availability, priority dates, and retrogression, please visit the USCIS website here.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

 

December 20, 2018

Potential Government Shutdown and Immigration Impact

Congressional budget negotiations for FY 2020 continue, and the White House is threatening to veto any spending bill that does not fund a border wall. If an agreement to fund various federal agencies is not reached by midnight Friday, December 21, 2018, approximately 25 percent of government functions are expected to shut down. The Department of Homeland Security will be hardest hit, but the impact on immigration benefits is expected to be limited, as follows:

U.S. Citizenship and Immigration Services

Because USCIS application and petition adjudications are primarily funded by user application fees, USCIS is expected to continue operations without great disruption, though processing times may slow. In contrast, USCIS E-Verify service is appropriations-funded and would be suspended. If the government shuts down, employers will not be able to enroll in E-Verify or to access their E-Verify accounts to verify the employment eligibility of new hires and resolve tentative nonconfirmations (TNCs). E-Verify customer service, online webinars and training sessions, and the Self-Check program will also be unavailable during the shutdown. Employers must still comply with their Form I-9 obligations.

U.S. Department of Labor

DOL previously received appropriations for FY 2020 and the agency is funded through September 30, 2019. Business should continue as usual, including the processing of Labor Condition Applications (required for H-1B, H-1B1 and E-3 visa applications), Prevailing Wage Requests, and PERM labor certification applications.

U.S. Customs and Border Protection

CBP personnel, responsible for inspection and law enforcement at U.S. ports of entry, are considered “essential personnel” and are expected to work without pay. U.S. borders and Preflight Inspections (PFI) areas will remain open. However, there may be staffing adjustments that could result in increased wait times to clear inspection and secure admission to the U.S. Additionally, adjudication of petitions by CBP officers at the border and PFI areas, such as TN applications and L-1 petitions for Canadian citizens, is expected to continue.

U.S. Department of State

Visa and passport services are fee-funded and should continue as long as there are sufficient fees to support operations. However, passport offices housed in government buildings otherwise closed during a shutdown may become unavailable to the public. U.S. Embassies and Consulates remain open and will continue to process visa applications as long as funding remains in place. Visa application processing times may be delayed due to staffing adjustments or slowdowns at other federal agencies responsible for processing the security clearances required for visa issuance. A prolonged shutdown could ultimately exhaust DOS appropriations and result in the suspension of visa processing functions for all but emergency cases.

The situation posed by the federal government shutdown remains fluid. If a shutdown occurs, the impact on immigration related services may change the longer any shutdown persists. Gibney will be closely monitoring the situation and will provide updates. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

December 4, 2018

USCIS Proposes to Modify FY2020 H-1B Cap Process

On December 3, 2018, U.S. Citizenship and Immigration Services (USCIS) published a proposed rule to modify the H-1B cap-subject petition filing process for the upcoming FY2020 H-1B cap. The proposed regulation would create a registration requirement for cap-subject H-1B petitions and would also provide that the “regular” cap lottery be run before the advanced degree (“Master’s”) cap lottery, so as to increase the number of H-1B visas allocated to individuals holding U.S. advanced degrees.  Publication of the rule is now followed by a 30-day comment period, open until January 2, 2019, during which period the public may provide feedback to USCIS on the proposal. USCIS hopes to implement the new registration requirement for the upcoming FY2020 H-1B cap program, though it is uncertain whether the required regulatory process and technical steps can be completed in time.

Proposed Registration Requirement

  • Registration period: The proposed rule would require employers to first register each prospective H-1B cap petition beneficiary online with USCIS during a designated registration period lasting a minimum of 14 days. The registration period would occur at least two weeks in advance of April 1, the first date H-1B petitions may be filed. USCIS will provide 30-day advance notice of the designated registration period.
  • Online registration form: The online registration form will request basic information about the petitioner and beneficiary, including but not limited to company name and FEIN;  company contact information; beneficiary name, date of birth, country of birth and country of citizenship; and whether the beneficiary holds an advanced degree from a U.S. university. There is no proposed fee for registration submission.
  • Selection of registrants:  At the close of the registration period, if USCIS receives more registrations than needed to reach the H-1B cap (as expected),  USCIS will randomly select a sufficient number of electronic registrations projected as needed to meet the H-1B regular cap and Master’s cap.  Each selected registrant will then be assigned a designated 60-day period during which the petitioning employer must file the H-1B petition for the selected registrant. Registrants who are not selected will remain in a registration reserve, and if additional H-1B visas become available (for example, if a selected registrant does not ultimately file an H-1B petition), USCIS may select additional registrants from the reserve to file H-1B cap petitions.

Lottery Reversal

  • Current lottery order:  There are currently two H-1B cap lotteries: the regular H-1B cap lottery and the H-1B cap lottery for U.S. advanced-degree holders, for which an additional 20,000 visas are available.  Historically, USCIS has held the advanced degree lottery first and petitions not selected in that lottery were added to the regular lottery.
  • Proposed lottery order: The proposed rule would reverse the lottery order and include all registrants in the regular lottery. USCIS would conduct the regular lottery first, and upon completion, USCIS would conduct the advanced degree cap lottery for the remaining registrants holding advanced degrees from U.S. universities.  USCIS predicts that this change will result in 16% more advanced-degree holders being selected in the H-1B regular lottery.

Timing Issues and Impact on Employers

USCIS indicates that it would like to implement these rule changes for the upcoming FY2020 H-1B cap season.  However, timing will be a significant challenge.

USCIS must consider all comments received in response to this proposal through January 2, 2019. USCIS must then publish an implementing regulation that contemplates these comments. If comments are numerous, as expected, it will take additional time for USCIS to review, analyze, and refine the regulation as needed.  Additionally, in the proposed regulation USCIS acknowledged that other factors may result in the registration requirement being postponed, including technological problems related to creating and operating the online registration database.

Therefore, USCIS may ultimately require employers to prepare and file H-1B cap petitions for FY2020 on April 1, consistent with historical practice, instead of utilizing the proposed streamlined registration process.  If USCIS defers the registration requirement to FY2021, USCIS will nonetheless conduct the H-1B cap lotteries in the proposed reverse order, as outlined above, in an effort to allocate more visas to advanced-degree holders.

Next Steps

Gibney is closely monitoring the proposed rule, identifying issues and considering responsive comments, and planning H-1B cap strategies to meet these new challenges. If you have questions concerning the proposed rule, or if you would like assistance in submitting a comment on the rule, please contact your designated Gibney representative or email info@gibney.com.