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H-1B FY 2021 Electronic Registration Background

The H-1B program allows companies in the United States to temporarily employ foreign workers in specialty occupations requiring a bachelors or higher degree, or its equivalent. Annually, USCIS selects at least 65,000 H-1B visas under the H-1B regular cap and reserves another 20,000 visas for those holding advanced degrees from U.S. higher education institutions. When USCIS determines that it has received a sufficient number of H-1B petitions to reach the congressionally-mandated H-1B cap, a computer-generated random selection process, or lottery, is used to select the petitions that are counted towards the H-1B cap.

USCIS had postponed the electronic registration requirement for the FY 2020 cap season to complete user testing and ensure the system was fully functional.3 After a successful pilot testing phase, the USCIS is now prepared to implement the electronic registration system in the next H-1B lottery.

H-1B FY 2021 Electronic Registration Window to Open March 1 through March 20, 2020

From the Public Engagement Division of USCIS: U.S. Citizenship and Immigration Services announced on 12/6/19 the requirement for employers seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register and pay the associated $10 H-1B registration fee before filing a petition for the fiscal year 2021 H-1B cap.

USCIS will open an initial registration period from March 1 through March 20, 2020.

· During this initial registration period, prospective petitioners or their authorized representatives must electronically submit a separate registration naming each alien for whom they seek to file an H-1B cap-subject petition.

· If a sufficient number of registrations are received, we will randomly select the number of registrations projected as needed to reach the H-1B numerical allocations after the initial registration period closes and no later than March 31, 2020.

· Prospective petitioners with selected registrations will be eligible to file a cap-subject petition only for the alien named in the registration.

Once the H-1B registration system has been implemented, and when registration is required, the agency will not consider a cap-subject petition properly filed unless it is based on a valid registration selection for the same beneficiary, and the appropriate fiscal year. Additionally, although petitioners can register multiple aliens during a single online submission, duplicate registrations for the same beneficiary in the same fiscal year will be discarded.

During the past few months, USCIS conducted usability testing for the H-1B registration system. We incorporated feedback from those sessions into redesigns of the system. After completing the current development phase, USCIS will conduct further outreach and training prior to the initial implementation of the registration system to allow the public the opportunity to familiarize themselves with the electronic registration process. USCIS will provide guidance on how to use the registration system and prepare registrations before opening the registration system for the initial registration period.

DHS intends to publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration process.

Citizenship and Adjustment of Status Interviews May Be Conducted at Different Locations to Improve Processing Times

USCIS announced today that it is implementing a new strategy to decrease differences in processing times based on location for Form N-400, Application for Naturalization, and Form I-485, Application to Register Permanent Residence or Adjust Status.

Since the end of 2015, there has been an increase in processing times due to higher than expected volumes received during fiscal years (FY) 2016 and 2017 that did not decrease as originally projected. FY 2017 receipts were up 15.6% from FY 2016, and FY 2016 receipts were up 25.5% from FY 2015. The increased filing volumes did not affect all field offices equally, which resulted in some disparity in the processing times among field offices.

USCIS will begin shifting caseloads between field offices to decrease processing times. This may result in applicants being scheduled to appear for an interview at a field office outside of their normal jurisdiction. Applicants may receive an interview appointment notice or other types of notices (such as a Request for Evidence) from a field office outside of their normal jurisdiction. However, these caseload changes will not affect where applicants attend their biometrics appointments. Biometrics will still be done at the nearest application support center.

A plan to reduce processing times for N-400s and I-485s is welcome news as many applicants remain waiting for close to two years in some locations.

Premium Processing Available Monday, June 10th, for Consular Processed H-1B Cap Petitions

On June 10, USCIS will begin premium processing for all remaining FY 2020 H-1B cap-subject petitions. Starting on that date, the sponsoring employer may file Form I-907 with the USCIS service center that is processing the petition in order to upgrade.

On March 19, USCIS had previously announced that it would offer premium processing in a two-phased approach during the FY 2020 cap season to best manage premium processing requests without fully suspending it. In the past few years, USCIS had suspended all premium processing for H-1B petitions due to high demand. Based on feedback from the public, USCIS allowed this phased approach to benefit petitioners and ensure efficient premium processing. The first phase, which started on May 20, included FY 2020 cap-subject H-1B petitions requesting a change of status, and the second phase beginning on June 10th includes all other FY 2020 cap-subject petitions.

Once the I-907 is received by USCIS, the 15-day clock begins. USCIS should either approve the petition or issue a Request for Evidence within 15 days (RFE). If an RFE is issued, the 15-day clock begins again once USCIS receives the response to the RFE. When upgrading, the receipt number remains the same. The employer or attorney should receive an email notification within a few days of USCIS receiving the upgrade. A paper receipt follows in the mail about a week later. Keep in mind that receiving an early approval does not mean that the H-1B will have an earlier start date. The approved petition will still not become valid until October 1, 2019. The benefit of premium processing is that the H-1B beneficiary can schedule the visa interview at the U.S. consulate and allow sufficient time to receive the visa stamp in the passport in order to enter the U.S. on October 1st to begin employment in H-1B status.

There is a common misconception that premium processing causes RFEs and denials. I have not found this to be the case and recommend my clients to file in premium processing whenever possible.

This is welcome news for businesses and high-skilled workers who would otherwise expect delays in being able to begin H-1B employment on October 1, 2019.

New I-539 Form Requiring Biometrics March 11th

****UPDATE 6/7/19 My firm has filed a lawsuit yesterday against USCIS on behalf of four H-4 applicants for unlawfully delaying applications for extensions of stay and accompanying H-4 EADs for spouses of high-skilled immigrants who are waiting in line for permanent residence. We seek to force USCIS through litigation to adjudicate these renewals in a reasonable time as required by the Administrative Procedures Act. We have yet to see any approval of an H-4 after the biometrics requirement began, even for those filed with a premium processing H-1B. This means H-4 EADs are being delayed. We advocate for fair and timely adjudications for the high-skilled legal immigrant community.

****UPDATE 4/25/19 For one of our H-4 cases, approximately 6 days after attending the biometrics appointment, the online case status has been updated to state “we completed our review of your fingerprints and are working on your Form I-539.” This case was concurrently filed with a premium processing I-129 that has already been approved. I’ll let you know how long it takes for the H-4 to be approved.

****UPDATE 4/8/19 We received our first biometric appointment notices for applications filed with the new I-539 form after March 21st. The notices were issued on March 30, 2019, were received on April 8, 2019, and have appointment dates between April 15th and April 19th. These I-539s were filed concurrently with I-129 petitions in both both regular and premium processing.

****UPDATE 03/22/19 Now that the Biometric Requirement is in effect for I-539 applications, please share your experiences in the comments below, especially regarding processing times. Ex. When you filed your I-539, whether it was concurrently filed with a premium processed I-129, how long it took to receive the biometrics notice, how much advance notice of the appointment did you get, how soon did you receive the approval after appearing (especially for premium processing folks)!

On Monday, February 11, 2019, USCIS announced that it was revising the I-539 application form used by many different types of nonimmigrants, including H-4, L-2, O-3, F-1, B-1, B-2, Dependents of E visa holders, and Dependents of TN visa holders, to name a few. Although form revisions are common, this time USCIS has added a requirement for all applicants, including children, to pay an $85 biometric services fee and attend a biometrics appointment at the Application Support Center closest to the applicant’s address. The new version of the form is not yet available, but must be used for all applications received by USCIS on or after March 22, 2019.

In its supporting documents for the form revision, USCIS uses Section 5 of Executive Order (E.O.) 13780 as the grounds for the needed biometrics. This Executive Order is entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States” and calls for the implementation of uniform screening and vetting standards for all immigration programs, including “a mechanism to ensure that applicants are who they claim to be” and “any other appropriate means for ensuring the proper collection of all information necessary for a rigorous evaluation of all grounds of inadmissibility or grounds for the denial of other immigration benefits.

USCIS believes that the I-539 biometrics requirement will enhance national security, public safety, and identity verification.

I-539, applicants who are requesting A, G, or NATO classifications are exempt from the biometrics fee by regulation. All other classifications must appear for biometrics collection and submit the associated fee.

USCIS’ own supporting statement for the biometrics requirement states that the average distance traveled for applicants to reach an Application Support Center is 100 miles, yet they claim that “the burden of complying with the biometrics requirement is not excessive.”

In Fiscal Year 2018, USCIS received a total of 230,975 I-539 applications. But remember, this does not take into account the fact that each application can include more than one applicant (for example, an H-4 spouse and his/her children are all included in one I-539 application).

USCIS expects that 373,477 people will need to have their biometrics done under this plan each year, which results in the government earning over $31 million from this exercise.

Now that we are adding 373,477 biometrics appointments into the system, (in addition to the 334,182 family-based adjustment of status applicants, the 132,708 employment-based adjustment of status applicants, and 834, 251 naturalization applicants who currently attend biometrics appointments), what will happen to the already ridiculously long processing times for I-539 applications? The Vermont Service Center is taking 12 to 15.5 months to process one of the simplest types of immigration applications. How will USCIS treat I-539s filed concurrently with a premium processed I-129? These are answers that we don’t yet know. We may have more insight this Friday after USCIS conducts a teleconference to discuss the requirements involved with the revised Form I-539.

Stay tuned for more information @careersoftsolution