Tag: H1B visas

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H1B Visa Registration to Start On March 9, 2021

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Every year, U.S. petitioners seeking to hire professionals who are foreign nationals undergo a lottery system to obtain H1B visas for their prospective employees. Thousands of applicants, including those from the Philippines, who are on student visas and graduated from U.S. schools and those who are foreign educated, have opportunities to apply for professional working visas as long as they are eligible. 

H1B is a professional working visa that will allow an individual to work in the United States for a specific U.S. employer and for a specific period of time. H1B visas allow workers to stay in the U.S. for up to three, or in some cases, six years and bring immediate family members with them. They also provide a pathway to receiving permanent immigrant visas or green cards.

The Lottery System

There are only 65,000 H1B visas each year plus 20,000 more reserved for individuals with master’s degrees or higher from U.S. institutions. With these limited numbers of visas, a lottery system has been put in place because there are more petitions submitted than the number of H1B visas available. Last year, there were 275,000 petitions filed which is way above the numerical limitations. 

For many years, the system was for the U.S. Citizenship and Immigration Services (USCIS) to choose randomly from among the submissions. Once it reaches its 85,000 petitions it will stop accepting petitions. It will then notify petitioners whose petitions were accepted or rejected.

The selection process changed on December 6, 2019 when USCIS announced a new electronic registrations system. This new system requires petitioner’s to register electronically (instead of filing a paper petition) with the USCIS and pay a $10 registration fee before an H1B cap subject petition may be submitted. Registration period is announced by the USCIS before actual filing takes place. Last year, registration started March 1, 2020 through March 20, 2020 or until enough registrations are reached to receive the numerical limit. USCIS then sends notices to H1B visas to those who are accepted or rejected.

The past Trump administration attempted to change the selection process.  USCIS would have prioritized H1B applications based on their wages with the workers offered the highest pay moving to the front of the line. On February 4, 2021, the USCIS announced that it will not implement this change because of technical challenges but instead will stick to the current lottery electronic registration system for the coming Fiscal Year 2022.

Registration period

USCIS announced that registration period begins on March 9, 2021 until March 25, 2021. Selected registrants by USCIS will be notified by March 31, 2021. USCIS will accept H1B petitions by April 1, 2021.

U.S. companies or businesses wishing to apply for the H1B visas for their employees need to plan early. They may contact their respective professional legal representatives to guide and assist them through the H1B process.

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Applicants With ‘USCIS Denials’ May Be Put In Removal Proceedings

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A person who is unlawfully present after his application, petition or request for an immigration benefit is denied may find himself in removal proceedings and eventually may possibly be deported. The U.S. Citizenship and Immigration Services (USCIS) released last week their two new policies with regard to the handling of denied applications and petitions for those seeking immigration benefits. These policy memos (PM-602-0050-1 and PM-602-0161) are referred as updated guidance to referring cases to ICE and issuance of Notices to Appear.

How are these new policy memos going to be implemented? What impact will these have on those seeking immigration benefits?

Paul entered the United States using a visitor visa. He sought an extension of his stay by filing an Application to Extend Status (I-539) because he was invited to speak in a conference on a date which was beyond his authorized stay. Paul continued to reside on a visitor visa in the U.S. even after his authorized period of stay hoping that his application will be approved and he will not lose status. Unfortunately, USCIS denied his application. Under the new policies, Paul will be put in removal proceedings because he is now in unlawful status.

Those seeking extensions of H1B visas and whose requests were denied may also suffer the same fate as Paul. Under the new policy, USCIS may issue NTAs and put those with denied petitions in removal proceedings.

There are thousands of applications and petitions filed with the USCIS by those who are present in the United States. They may be seeking to avail of some immigration benefits like an extension of non-immigrant stay, change of status, extension of working visas or adjustment of status from non-immigrant status to that of a lawful permanent resident. Most of the time these applicants, if they meet the eligibility requirements are approved and issued the requested valid status. However, with the recent policies, in the event the application or petition is denied, USCIS may issue a Notice to Appear and put the applicant in removal proceedings.

Other than cases of those unlawfully present whose application or petition are denied, the following categories of cases are also impacted by the new policies:

  • Cases where fraud or misrepresentation is substantiated and/or where an applicant abused any program related to the receipt of public benefit
  • Criminal cases where an applicant is convicted or charged with a criminal offense which is a ground of removability
  • Cases in which N400 or an Application for Naturalization is denied based on good moral ground or a criminal offense

These USCIS new policies will result in more cases being filed in removal courts. With more than 700,000 cases pending in immigration courts nationwide, additional filings of cases based on these USCIS policies will only make the backlog severe. The ICE is not the only agency involved in enforcement of immigration law. The USCIS, which used to be the agency that handles immigration benefits, has now been turned into an enforcement agency as well. With this additional role, the delay in adjudication of petitions is expected to happen impacting thousands of adjustment of status and naturalization applications.

With the ever-changing policies evolving at a very fast pace, it would be prudent for a prospective petitioner or applicant to have a serious discussion about his case with a trusted legal counsel. One must be able to assess the varying legal options that may be available to attain the same result without risking removal. Or perhaps one must have his case examined on whether it is even timely or worth pursuing an application or a petition with the USCIS. During these critical times and when it comes to immigration, there is no substitute for due diligence.

(Atty. Lourdes Santos Tancinco, Esq. is a San Francisco based immigration attorney and an immigrant rights advocate. She may be reached at 1 888 930 0808, law@tancinco.com or facebook.com/tancincolaw.)

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Recent changes to the H1B visa program are still favorable

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The U.S. Citizenship and Immigration Services (USCIS) on November 18, 2016 published changes to the H1B program affecting highly skilled workers, and these changes took effect on January 17, 2017. Most of these changes affect those who already have H1B visas and have pending immigrant visa petitions with no available visas.

“Isabela” entered the United States on an H1B visa. She is an engineer who works on different development projects for her U.S. employer. Prior to sixth year H1B expiration, her U.S. employer was able to file a labor certification application and an immigrant visa petition. She has a priority date of 2015 on her immigrant visa petition and a visa is not yet available for Filipino nationals.

The visa bulletin for the month of February 2017 indicates that the visa priority date under the Philippines is 2011 and filing date priority date is 2013. Every year, Isabela’s employer files for a one-year extension of her H1B visa.

She heard about the changes in H1B program that took effect on January 17, 2017. Can she benefit from these changes? If she decides to leave her present employer, will she be able to use the prior approved immigrant visa if this already withdrawn by the employer? What options does she have?

No automatic revocation
In several cases where the employee decides to change employers, the first petitioning employer would take the adverse step of withdrawing the approved petition filed on behalf of an H1B visa holder. And in unfortunate cases, because of the lengthy wait for a priority date to become current, there are times where the petitioner’s business closes for valid reasons resulting in revocation of the immigrant visa petition.

With the recent amendment to the regulations, the USCIS will no longer treat an immigrant visa petition as automatically revoked based on withdrawal by the petitioner or termination of the petitioner’s business. This change applies to those whose petitions have been approved for 180 days or more. Hence, for some employers who may have malevolent plans of getting back at their employees for moving to another employer, there will no longer be an automatic revocation.

The USCIS set conditions for the non-automatic revocation to apply. The rule clearly states that as long as the approval has not been revoked for fraud, material misrepresentation, invalidation or revocation of a labor certification, or material USCIS error, the petition will continue to be valid for various purposes including (1) retention of priority dates; (2) job portability under INA §204(j) and (3) extensions of status under AC21 §§ 104(c) and 106(a) and (b).

Three-year extension after sixth year
Considering that immigrant visas are not readily available because of numerical limitations imposed by law, the H1B employee may request for a three-year extension instead of a the one-year increment. The extension request must show proof that the immigrant visa classification is over- subscribed, which is always the case for employment-based petitions (EB3) for nationals of Philippines. However, if the priority date is at least one-year current, the extension will only be for one year.

Besides the above changes in the highly skilled H1B visa program and the employment- based petitions, there are more changes that would benefit H1B visa holders. For Isabela and those similarly situated, the changes above are significantly critical especially to Filipinos who have to bear a lengthy wait before immigrant visas are made available.

(Atty. Lourdes S. Tancinco is a San Francisco based immigration lawyer and may be reached at law@tancinco.com, tancinco.weareph.com/old, facebook/tancincolaw, or at 1 888 930 0808 or 415 397 0808)