Business Immigration Insights

On January 29, 2024, the Department of State’s stateside visa pilot renewal program began accepting DS-160s for qualifying individuals seeking to renew their existing H-1B visas while they are in the United States.  As discussed in our previous blog post about this new program, the program allows individuals in the United States who are renewing an H-1B visa issued by US consular sections in Canada between 1/1/2020 and 4/1/2023 or one issued by US consular sections in India from 2/1/2021 and 9/30/2021 to do so online through the Department’s CEAC website rather than having to travel outside the US to obtain the visa. 

This is a follow up to our prior post on Domestic Visa Processing.

The Department of State has officially released the details of the long-anticipated domestic visa processing pilot program. The pilot program will be open starting on January 29, 2024, and will accept up to 20,000 applications, with applications accepted on a rolling basis. The system is set up to release approximately 4,000 application slots each week for the first 6 weeks of the program starting Monday, January 29, 2024. Once the weekly limit is reached, the system will be locked until the next set of slots are released following next week. The system will be open until April 1, 2024, or until all application slots are used, whichever comes first.

After a 20+ year hiatus in domestic visa processing, the Department of State is launching a pilot program to resume limited state-side processing of visa renewals in early 2024. According to a recent State Department announcement, the new pilot program will allow some individuals in the U.S. with visas to renew those visas without leaving the country or attending an interview at a U.S. Embassy or consulate outside the United States.

U.S. Citizenship and Immigration Services (USCIS) released additional details about the FY 2024 H-1B electronic registration that ran in March 2023. One item of interest is that the number of registrants (individuals) with only one submission saw a relatively modest increase from 309k to 350k, while the number of registrants with multiple submissions more than doubled from 165k to 409k. In contrast, the first year of the H-1B Cap Registration program (FY2021) saw only 28k individuals with multiple submissions - an increase of 1,454% in just three years.

The United States Citizenship and Immigration Services (“USCIS”) has announced that the suspension of premium processing for FY2019 H‑1B cap cases, announced on March 21, 2018, has been extended until possibly February 2019.

USCIS also announced that effective September 11, 2018, premium processing will be suspended for H‑1B cases filed at the Vermont and California Service Centers, except for:

1. H-1B petitions filed by cap-exempt petitioners or by petitioners who will be employing beneficiaries at qualifying cap-exempt institutions, entities, or organizations; or

U.S. Citizenship & Immigration Services (“USCIS”) announced today that it has now completed returning all petitions that were not selected in the Fiscal Year 2019 H-1B lottery.  Employers who filed petitions should now have received either a Form I-797 receipt notice with assigned receipt number, or the original rejected petition including filing fees.  USCIS will take inquiries if employers believe they filed during the required period – April 2 to April 6, 2018 – and have not received a receipt notice or rejected petition by August 13, 2018

If 2017 is any indication, the new year will bring a fresh cascade of changes – both announced and unannounced, anticipated and unanticipated – in the business immigration landscape.  Few, if any, of these changes are expected to be good news for U.S. businesses and the foreign workers they employ.

In 2017, while much of the news media focused on the Trump Administration’s draconian changes to practices and policies that affected the undocumented – including ending the DACA Dreamer program, shutting down Temporary Protected Status for citizens of countries ravished by war and natural disaster, and aggressively enforcing at the southern border and in “sensitive” locations such as churches, courthouses, and homeless shelters – relatively less attention has been paid to the steady, incremental erosion of rights and options for legal immigrants, particularly those who are sponsored for work by U.S. employers, under the Administration’s April 2017 “Buy American / Hire American” executive order.  There is no doubt that such restrictions to the legal immigration system will continue to cause business uncertainty and disruption in 2018.  Here’s what to expect:

The United States Citizenship and Immigration Services (“USCIS”) announced today the reinstatement of premium processing for H-1B petitions subject to the Fiscal Year 2018 cap.  USCIS previously reinstated premium processing for H-1B petitions filed on behalf of Conrad 30 waivers recipients and those filed by certain H-1B cap-exempt petitioners.

 USCIS expects to resume premium processing as workload permits, but previously announced a target date of October 3, 2017.

Today, the United States Citizenship and Immigration Services (“USCIS”) announced the reinstatement of premium processing service for H-1B petitions filed by certain cap-exempt petitioners.  In addition to petitioners who seek to employ physicians who are recipients of Conrad 30 waivers, H-1B petitioners who meet the following criteria may now also request premium processing:

• Institutions of higher education;
• Nonprofits related to or affiliated with an institution of higher education; or
• Nonprofit research or governmental research organizations.

USCIS also ...

The Trump Administration’s April Executive Order, “Buy American, Hire American,” puts the H-1B visa program under increased scrutiny, but is not likely to have significant, if any, impact on the program for the foreseeable future.

There has been a flurry of activity and uncertainty related to immigration issues since President Trump took office. Hunton & Williams partners Adam Rosser and Emily Burkhardt Vicente discuss the concerns faced by the business community and the future of the H-1B visa program in the US.

View the 5-minute video here.

On, March 31, 2017, U.S. Citizenship & Immigration Services rescinded a 17-year-old memorandum issued by the Nebraska Service Center regarding computer-related positions as H-1B “specialty occupations.”  For the last 10 years, all H-1B petitions have been processed at the Vermont and California Service Centers, so the memo has not been in use.  Since NSC recently began accepting H-1B extension petitions again, USCIS has rescinded the memo, stating it is outdated and inconsistent with the agency’s current approach to H-1B petitions for computer jobs.

On Friday, March 3, 2017, the United States Citizenship and Immigration Services (USCIS) announced that premium processing service will be suspended for all H-1B petitions received on or after April 3, 2017. This suspension may remain in place for up to 6 months.

We are now less than two months away from the 2017 H-1B cap season. On April 3, 2017, the United States Citizenship and Immigration Services (“USCIS”) will begin accepting H-1B petitions for fiscal year 2018 (October 1, 2017, through September 30, 2018).

The President’s Executive Order, commonly called the “travel ban”, has raised many questions.  We answer the most frequently asked questions below, and will update them as additional information becomes available.

I am from one of the named countries and am outside of the United States.  Can I apply for a nonimmigrant (temporary) or immigrant (permanent) visa at a US consulate?

On January 27, 2017, the U.S. Department of State (DOS) provisionally revoked most valid nonimmigrant and immigrant visas issued to nationals from the seven countries subject to the travel ban. Certain diplomatic and other visa categories are exempt from this action. This move was largely symbolic since individuals subject to the travel ban are not permitted to enter the United States. However, if and when the travel ban is lifted, individuals from the listed countries would most likely need to reapply to a U.S. consulate abroad for a new visa before they could travel to the United States.

The fast pace of immigration developments under the new Trump administration continues. The following are some of the issues that are most important to individuals and businesses in the United States:

Donald Trump’s statements about the U.S. immigration system were a main feature of his presidential campaign. Now that he has been elected, many are questioning whether and how those statements might become actual policies. We have already begun fielding questions from clients asking how new policies, regulations and laws will affect their businesses, their employees, their families, and themselves.

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received sufficient H-1B petitions (regular and advanced degree cases) to reach the statutory cap for FY2017 (10/1/2016 through 9/30/2017).

In February 2015 USCIS unveiled a new regulation permitting certain H-4 spouses to apply for employment authorization starting on May 26, 2015. This regulation has been well received by H-1B workers and their spouses, and U.S. companies that seek to attract and retain highly skilled H-1B workers. However, as could be expected, certain individuals and organizations that oppose the expansion of legal immigration benefits have come out against the regulation.

The USCIS announced today that it will suspend Premium Processing of H-1B extension petitions from May 26, 2015, through July 27, 2015, in order to implement the new H-4 spouse employment authorization rule in a timely manner.  Premium Processing will still be available for H-1B petitions subject to the H-1B cap, and for all other immigrant and nonimmigrant visa petitions for which the service is available.  H-1B extension petitions filed before May 26, 2015, but still pending as of that date, will not be processed under Premium Processing.  Refunds will be issued for those filings.

As widely anticipated, U.S. Citizenship and Immigration Services announced yesterday that it has received a sufficient number of H-1B petitions to meet both the regular cap (65,000) and the advanced degree cap (20,000) for Fiscal Year 2016.  USCIS received close to 233,000 petitions during the FY2016 filing window, which ran through the first five business days of April.  By comparison, the USCIS received 172,000 for FY2015.

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received sufficient H-1B petitions (regular and advanced degree cases) to reach the statutory cap for Fiscal Year 2016 (10/1/2015 through 9/30/2016).

USCIS announced today that a new regulation permitting certain spouses of H-1B nonimmigrant workers to apply for employment authorization will go into effect on May 26, 2015.  The new rule permits H-4 spouses to submit an application for employment authorization (Form I-765) on or after that date, if they are married to an H-1B worker who meets one of the following requirements:

• Is the principal beneficiary of an approved Form I-140 Immigrant Petition; OR
• Has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act (AC21) relating to H-1B extensions in the case of lengthy adjudications

As widely anticipated, U.S. Citizenship and Immigration Services announced yesterday that it has received a sufficient number of H-1B petitions to meet both the regular cap (65,000) and the advanced degree cap (20,000) for Fiscal Year 2015.  USCIS received a total of 172,500 petitions during the FY2015 filing window, which ran through the first five business days of April.

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received sufficient H-1B petitions (regular and master’s cases) to reach the statutory cap for Fiscal Year 2015 (10/1/2014 through 9/30/2015). Because the cap was met during the first five business days that employers could file Fiscal year 2014 petitions, a lottery will be held in the coming weeks to determine which cases will be accepted for processing, and which will be rejected.  Those chosen in the lottery will be issued receipt notices; those rejected will receive the original filings back from USCIS. 

The USCIS announced that it received 124,000 Fiscal Year 2014 H-1B petitions between April 1, 2013, and April 5, 2013, including petitions filed for the advanced degree H-1B visas.  The lottery, which was held on Sunday, April 7, 2012, was conducted by a computer-generated random process for the 20,000 advanced degree H-1Bs.  Those not selected were added to a second lottery for the other 65,000 H-1Bs.  Receipt notices for those selected should arrive in the coming weeks.  The USCIS confirmed that it will begin adjudicating petitions filed under the expedited “Premium Processing” ...

U.S. Citizenship and Immigration Services (USCIS) announced this afternoon that as of April 5, 2013, it has received sufficient H-1B petitions (regular and master’s cases) to reach the statutory cap for Fiscal Year 2014 (10/1/2013 through 9/30/2014). This is significantly faster than the current fiscal year, when the cap was not reached until June 11, 2012.  Because the cap was met during the first five business days that employers could file Fiscal year 2014 petitions, a lottery will be held in the coming weeks to determine which cases will be accepted for processing, and which will be rejected.  Those chosen in the lottery will be issued receipt notices; those rejected will receive the original filings back from USCIS.

The USCIS California Service Center recently changed the way it interprets H-1B requirements when job location changes, but duties and all other employment terms remain the same.

Previously, according to a 2003 USCIS memo, a simple change in job location did not require that a new petition be filed with USCIS.  The employer was required to analyze prevailing wage for the new location, file a new Labor Condition Application (LCA) with the Department of Labor, and post the required LCA notice at the new work site, but did not have to file an amended petition with USCIS.

U.S. Citizenship and Immigration Services (USCIS) announced this afternoon that as of Monday, June 11, 2012, it has received sufficient H-1B petitions to reach the statutory cap for Fiscal Year 2013 (10/1/2012 through 9/30/2013). Perhaps a sign of an improving economic situation in the United States, this is significantly faster than the current fiscal year, when the cap was not reached until November 22, 2011.
 
The H-1B cap applies only to petitions for new employment, and generally does not affect H-1B sponsors who request extensions or a change of employers. Cap-subject H-1B ...

U.S. Citizenship and Immigration Services (USCIS) announced that as of November 22, 2011, it has received sufficient H-1B petitions to reach the statutory cap for Fiscal Year 2012 (10/1/2011 through 9/30/2012).  The H-1B cap applies only to petitions for new employment, and generally does not affect H-1B sponsors who request extensions or a change of employers.  Cap-subject H-1B petitions received by USCIS after November 22nd will be rejected.  Employers who wish to sponsor an H-1B worker should contact Hunton & Williams to determine whether an exemption from the cap may be available ...

In late July 2011, the US Department of Labor's National Prevailing Wage Center temporarily suspended processing of Prevailing Wage Requests (PWRs) in connection with labor certification applications. The suspension also affects redeterminations and Center Director Reviews. DOL has not announced how long the suspension will last or how long it will take to clear the PWR backlog once the suspension is lifted.

U.S. Citizenship and Immigration Services announced recently that US employers who petition for foreign workers in the H-1B, H-1B1 (Chile/Singapore), L-1, and O-1A categories will not be required to complete Part 6 of Form I-129 until February 20, 2011.  Part 6 contains the employer certification regarding licensing requirements under export controls and ITAR, recently discussed in this blog. USCIS received a number of inquiries from stakeholders requesting that the agency delay implementation of this requirement in order to give petitioners time to establish the necessary ...

U.S. Citizenship and Immigration Services recently issued a new Form I-129, effective December 23, 2010.  Part 6, "Release of Controlled Technology or Technical Data to Foreign Persons in the U.S.," requires an employer to certify it will not "release" controlled technology or data to an H-1B, L-1 or O-1 worker without the appropriate "export license," if one is required.  Under the Export Administration Regulations (EAR) and International Traffic in Arms Regulations (ITAR), a "deemed export" occurs when controlled technology or technical data is "disclosed" or "transferred" to ...

The Department of State has revised its "visa reciprocity" schedule for China, effective July 9, 2010, allowing US embassies and consulates to issue 1-year, multiple-entry H-1B visas to Chinese nationals.  The new reciprocity schedule for China may be viewed at the State Department's website here.

Validity periods and other restrictions on US nonimmigrant visas, such as H-1B visas, are based on the concept of "reciprocity":  the validity and limitations another country imposes on US citizens for similar types of visas.  Previously, Chinese H-1B visas were limited to 3 months and ...

The U.S. Department of State has confirmed that contractors on a pre-approved list at the Kentucky Consular Center (KCC) are now auditing approved nonimmigrant petitions -- including H-1B and L-1 petitions -- in order to verify that information contained in the petitions is correct.  The audits are creating significant delays for petition-based visa applicants at embassies worldwide.

In recent months there have been multiple reports that some H-1B workers arriving at Newark Liberty International Airport in New Jersey have been questioned extensively by U.S. Customs and Border Protection (CBP) officers about their employment in the United States.  In some cases H-1B workers have been refused entry and/or had their visas cancelled.  CBP headquarters has since confirmed that most of these incidents occurred as part of an enforcement action involving companies that are under investigation for immigration violations, presumably involving fraudulent H-1B petitions or inadequate documentation.  Based on the types of questions being asked by CBP, there are also indications of increased scrutiny of H-1B workers who are employed by consulting firms, based on the January 2010 Neufeld memo discussed in our previous blog entry Indian nationals who are employed by consulting firms appear to be the primary targets of these enforcement efforts.

U.S. Citizenship and Immigration Services (USCIS) recently issued a memorandum containing guidance for the processing of H-1B petitions involving certain employer-employee relationships, including self-employment, third-party site placements and independent contractors.  Specifically, the memo states that an H-1B employer must establish that it will maintain the "right to control" the "when, where, and how" a sponsored H-1B worker performs the job, thus raising concerns about the viability of previously acceptable employment arrangements.  This memo follows months of increased scrutiny by USCIS of H-1B petitions filed by consulting companies and H-1B employers that are owned by the employee who is being sponsored.

U.S. Citizenship and Immigration Services (USCIS) announced this afternoon that as of December 21, 2009, it has received sufficient H-1B petitions to reach the statutory cap for Fiscal Year 2010 (10/1/2009 through 9/30/2010).  The H-1B cap applies only to petitions for new employment, and generally does not affect H-1B sponsors who request extensions or a change of employers.  Petitions that were received by USCIS on December 21st are subject to a random selection process and some will ultimately be rejected.  Employers who wish to sponsor an H-1B worker should contact Hunton & ...