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H-1B visa

Changes to the H-1B Visa Process

By Peek & Toland on October 29, 2019

Earlier this year, the Department of Homeland Security (DHS) issued a final rule that made changes to the regulations that govern H-1B cap-subject petitions. This rule became effective on April 1, 2019. This rule reversed the order that U.S. Citizenship and Immigration Services (USCIS) uses to select H-1B petitions under the H-1B regular cap and the advanced degree exemption. The changes are designed to increase the number of selected petitions for H-1B workers who have a master’s degree or higher from a U.S. college or university.

DHS reportedly made these changes in response to the Trump Administration’s “Buy American and Hire American” executive order. This order instructed DHS to propose new rules to protect the interests of U.S. workers in the immigration system. More specifically, the order directed DHS to reform H-1B vis program administration to help ensure that H-1B visas go to the foreign workers with the most skills and who are the highest-paid.

Changes to the H-1B Visa Process

These changes, along with the increased amount of scrutiny that USCIS is placing on H-1B visa petitions, require significant preparation for U.S. employers who wish to submit H-1B visa petitions. Employers who expect to participate competitively in the H-1B visa program must take steps early in the process to ensure that their applications are complete. They also must take precautions to avoid requests for further evidence from USCIS. These requests serve only to substantially slow down the processing times of applications, which can be fatal to an employer’s ability to hire foreign workers using the H-1B visa process.

As a result of these changes, employers likely are to need the assistance of an experienced immigration lawyer who can assist them through the often lengthy and complicated process of submitting petitions for H-1B visas. Since the application process is fraught with potential pitfalls, employers must start earlier than ever in preparing their applications. They should begin preparations even if they have not yet determined their lottery eligibility.

An experienced Texas immigration attorney can help you with all aspects of immigration law. We are here to evaluate the facts surrounding your case and present your options. Finally, we can help you make the decisions that will be most beneficial to you based on your circumstances. Contact Peek & Toland at (512) 474-4445 today and see how we can help.

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USCIS to Begin Premium Processing for Some H-1B Petitions on May 20, 2019

By Peek & Toland on May 8, 2019

According to U.S. Citizenship and Immigration Services (USCIS), it will be begin premium processing for FY 2020 cap-subject H-1B petitions requesting a change in status and filed with a Form I-907 Request for Premium Processing Service. Therefore, even petitions submitted prior to that date will have their 15-day processing period delayed until May 20. 2019.

USCIS to Begin Premium Processing for Some H-1B Petitions on May 20, 2019

This move by USCIS reportedly is designed to keep premium processing in place by phasing it in, rather than suspending as it has in previous years. The agency also reported that it was striving to maintain efficiency despite its phased-in approach. As a result, premium processing for all other FY 2020 cap-subject petitions (those that do not request a change in status) will not begin until at least June 2019. These petitions include requests for consular processing. However, premium processing of H-1B petitions exempt from the cap remains available.

In this press release, USCIS also announced that it would be suspending its usage of pre-paid mailers to send out final notices for premium processing for FY 2020 cap-subject H-1B petitions that are requesting a change in status. This suspension will take place from May 20, 2019, until June 3, 2019. This move allows USCIS to issue completely automated notices and thereby further increase efficiency. USCIS also announced its intention to follow a similar suspension of using pre-paid mailers when it begins to process all other FY 2020 cap-subject petitions. In fact, although the agency intends to resume use of the pre-paid mailers, it stated that it would only do so if feasible. Whatever your situation may be, you will need skilled legal assistance to work toward a resolution of your immigration law matter. The Texas immigration attorneys of Peek & Toland know how to help you navigate through the maze of immigration forms, regulations, and policies, and get the relief that you need. Take the first step today and secure the future of your family in the U.S. Contact our office today at and set up an evaluation with one of our highly skilled Texas immigration lawyers.

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DHS Releases Proposed Changes to H-1B Visa Program

By Peek & Toland on February 14, 2019

The Department of Homeland Security (DHS) recently issued a notice of proposed rulemaking that would change procedures for the H-1B visa program. This program allows U.S. companies to employ foreign workers on a temporary basis in certain specialty occupations. These occupations require the theoretical and practical application of highly specialized knowledge and qualifying individuals must have at least a bachelor’s degree or higher in the specialty area.

Congress issues an annual cap on H-1B visa program. When U.S. Citizenship and Immigration Services (USCIS) receives more petitions than the cap allows, it uses a computer-generated random selection process, called a lottery, in order to choose the petitions that are approved.

Under the proposed rule, USCIS would reverse the order in which it selects H-1B petitions according to the annual cap and the advanced degree exemption. The point of this change would be to increase the number of beneficiaries with master’s degrees or higher degrees from U.S. institutions of higher education. USCIS believes that this would result in the selection of petitions based on merit rather than on a random selection. Emphasis would be placed on the most-skilled and highest-paid workers.

DHS Releases Proposed Changes to H-1B Visa Program

Currently, USCIS selects petitions for the advanced degree exemption prior to the H-1B cap. Under the new rule, USCIS would select the number of petitions needed to satisfy the cap first, and then select the petitions to be used for the advanced degree exemption.

USCIS also would implement an electronic pre-registration program for the process. In the event of technical challenges with the electronic registration process, USCIS would have the authority to temporarily suspend the registration requirement. The theory behind this change would be to make a more efficient and cost-effective H-1B visa administration process.

The immigration lawyers of Peek & Toland have handled the legal representation of countless individuals facing various immigration-related issues. We are here to protect your rights and advocate on your behalf in order to get the best outcome possible in your case. Call our office today at (512) 474-4445 to set up an appointment with our immigration attorneys today.

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Fight Over Work Permits for Spouses of H-1B Visa Workers Rekindles

By Peek & Toland on February 10, 2019

Almost two years ago, the Department of Homeland Security (DHS) announced its intent to strip the spouses of H-1B visa holders of their work authorization. The estimated 90,000 foreign nationals are spouses of skilled guest workers, which include tech workers and medical professionals, were granted H-4 work permits starting in 2015, which made H-1B visas a more attractive option for guest workers with families.

A legal challenge was filed against the work permit program long ago based on displacement of American workers due to the issuance of H-4 work permits. The federal district court ruled against the U.S. workers, and they appealed that decision. This litigation had been on hold since April 2017 to allow the federal government more time to come up with a regulation to end the program. After almost two years, DHS has yet to produce a regulation. However, the U.S. Court of Appeals for the District of Columbia Circuit recently revived the lawsuit by setting briefing deadlines for both sides to the dispute.

Fight Over Work Permits for Spouses of H-1B Visa Workers Rekindles

In response to the newly set lawsuit deadlines, DHS now has been rushing to promulgate a regulation to eliminate the work permit program, with the goal of completing it prior to the briefing deadlines in the lawsuit expiring. The consensus is that DHS would rather eliminate the program completely rather than attempt to defend it in court. The hope of DHS is apparently that the court will defer to the administrative rulemaking process based on its interpretation of the Immigration and Nationality Act. If DHS can publish the regulation in time, then it is widely assumed that the court will again put the lawsuit on hold.

The Peek & Toland immigration lawyers are here to assist you with all your immigration needs. Trust us to represent your interests and advise you of the best course of action in your situation. Set up an appointment to talk to us today and discover how we can assist you with your immigration case.

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Government Announces New Restrictions on H-1B Visa Renewal Process

By Peek & Toland on March 26, 2018

Over the year since the Trump administration came to power the H-1B visa came under increased scrutiny. Restrictions were put in place over the expedited process in 2017. The government has also announced restrictions on the H-1B visa renewal process.

In October 2017, a new level of scrutiny for these visas for skilled workers was announced. U.S. Citizenship and Immigration Services advised its officials to apply the same level of scrutiny to requests for extensions of the H-1B visa, as the department does to other sought-after visas.

A CNN report noted officers will be told to review requests for renewal as thoroughly as they would review initial visa applications.

The H-1B is highly prized by the tech community. Every year, 85,000 visas are issued to skilled foreign workers. India supplies the most workers for the visa.

restrictions on H-1B visa renewal

H-1B visa renewal restritions

An H-1B visa is valid for three years. It can be renewed for another three years.

While the visa remains very popular and demand outweighs supply, a series of restrictions on the visa were imposed in 2017.

The directive replaces previous guidance, which gave “deference” to approved visas assuming the key elements of the application were unchanged and no evidence like a material error or fraud related to the prior determination was forthcoming.

The new guidance came at a time when the future of the H-1B visa was under review.

In April, the visa came under scrutiny as part of President Trump’s “Buy American, Hire American” strategy. An executive order included proposing new rules and guidance to stamp out fraud and abuse of work visas.

Trump has eyed the program for reform. He criticized abusers of the program who he accused of using the visa to replace American workers and undercut them.

The H-1B visa is not the only one impacted by the new renewal policy guidance.

Other visas impacted by the new rules include L-1 visas, for intracompany transfers, TN for Mexican and Canadian citizens, and O-1, for those with “extraordinary abilities.”

Opponents of the move fear it will inflict new and unnecessary burdens on the process.

Betsy Lawrence is the director of government relations for the American Immigration Lawyers Association.

She told CNN the previous guidance allowed cases to be reviewed efficiently. However, there were safeguards. USCIS retained the authority to question former decisions and to request additional information in reviewing extensions.

By this interpretation, the new rules could prove to be bureaucratic and to hold up applications.

Our Austin immigration lawyers can answer all of your questions about visas. Please call us at (512) 474-4445.

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Indian Government Asks U.S to Consider Positive Role of IT Firms in H-1B Visa Reform

By Peek & Toland on November 22, 2017

H-1B visas for skilled workers face an uncertain future following an executive order from President Donald Trump. The Indian government is calling for a role in the review to help shape H-1B visa reform.

The Indian government said it hopes the review will take into account the contribution of Indian companies to American business, reported the Business Standard.

IT secretary Aruna Sundararajan was quoted as saying the pressing concerns on visa changes were “premature.”

The US administration recently started its review. It has not taken any action to reduce the number of such work permits to Indian companies.

However, much of the rhetoric coming from the Trump administration has been in favor of restricting the supply of H-1B visas amid concerns the program is undercutting local workers.

H-1B visa reform - Indian firms want input

India want a say in H-1B visa reform

Indian IT workers make up the vast majority of recipients of H-1B visas. Typically, India and China make up more than 80 percent of the visas applied for.

However, Sundararajan said just 17 percent of total U.S. visas go to Indian companies. She said a large number of American firms benefit from services provided by Indian enterprises. She said Indian companies added value.

H-1B Visa Reform is Proposed by Trump Administration

In April, President Donald Trump issued an executive order outlining a fundamental reform of the H-1B visa process by agency department heads.

We noted in our blog that the order was short on specifics but echoed Trump’s earlier criticism of the visas for skilled overseas workers.

Companies who hire overseas workers may have to pay more for H-1B visas in the long term and the review could see greater restrictions placed on outsourcing companies.

The present lottery system for visas may be replaced by a more merit-based immigration system, according to Trump.

The Business Standard report stated in response to the proposed tightening of the visa regime in the United States, Indian IT firms are increasing the hiring of locals in the US. The market accounts for almost 60 per cent of the India’s tech export revenues.

Recently, CNN reported the appeal of a high tech job in the US remains undiminished in India, despite Trump’s policies. Applications to India’s elite Institutes of Technology are still at a high.

The direction of the H-1B visa reform will become clearer over the next year. In the present climate of uncertainty, it makes sense to hire an Austin family immigration lawyer if you are seeking H-1B visas for your skilled workers in certain areas.  Please call us for a consultation at (512) 474-4445.

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USCIS Adds Restrictions Concerning Computer Programmers Qualifying for H-1B Visas

By Peek & Toland on September 22, 2017

The H1-B immigration program has been in the news in recent months due to proposals to change it. We also see less sweeping amendments. For instance, in March, U.S. Citizen and Immigration Services (USCIS) released a policy memorandum, addressing the issue of whether computer programmers can qualify for visas.

The paper looked at whether a computer programmer qualifies as a “specialty occupation” for the purposes of H1-B visas. The memo rescinded a previous one in 2000 that said the position should generally be accepted by USCIS as a specialty occupation. Now a USCIS officer should only approve an H-1B petition for a computer programmer if the employer making the application provides enough evidence to demonstrate the job duties meet the requirements of a specialty occupation.

Visa restrictions for computer programmers

Computer programmers face more H-1B visa restrictions

What Constitutes a Specialty Occupation?

A specialty occupation requires two major components:

  • Practical and theoretical application of a body of highly specialized knowledge.
  • A bachelor’s or higher degree in the specific area (or its equivalent) as a minimum to enter the occupation in the United States.

In 2000, USCIS said the position of computer programmer generally qualifies as a specialty occupation making it eligible for an employer to submit a petition for an H1-B visa.

However, the new memo supersedes the older one. It notes computer programmer positions can be entry-level positions. They may only need an associate’s degree or a degree in a nonrelated field. In some cases, a computer programmer may be ineligible for a visa.

The petitioning employer must present evidence that the particular position being requested qualifies as a specialty occupation under the H-1B visa program.

The set of requirements for H-1B visas is complicated. A valid employer-employee relationship is determined by whether the employer in the United States is able to hire, fire, pay, supervise or control the work of the visa holding worker. The sole or majority owner of the petitioning company may establish a valid employer-employee relationship if he or she can show the petitioning entity has a right to control the visa beneficiary’s employment.

At Peek & Toland , our visa immigration attorneys can help you with the application process. See more about visas here or call us at (512) 474-4445.

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H1-B Petitions Fall But Still Exceed the Cap

By Peek & Toland on September 20, 2017

The cap for H1-B petitions was reached again quickly in April. However, U.S. Citizenship and Immigration Services (USCIS) saw petitions fall to the lowest figure in five years.

The cap for skilled worker visas was reached on April 7 for the fiscal year 2018. USCIS then completed the H1-B lottery selection process on April 11.

USCIS said about 199,000 petitions were filed this year. It was the lowest number filed in five years. However, immigration services did not provide a breakdown of how many of the petitions were eligible for the advanced-degree exemption, known as the “master’s cap.”

USCIS has started to send its receipt notices by regular mail. There is not an email option in these cases.

H-1B visa petitions fell

H-1b Visa petitions fell this year

Applicants who are not selected in the lottery will be returned by mail along with the uncashed filing fee checks to the employer who was making the application.

Why Did Petitions Fall in April 2017?

The uncertainty about the future of the H-1B visa may have led to the reduction in applications this year.

Betsy Lawrence, the director of government relations for the American Immigration Lawyers Association told CNN.

“In an atmosphere of uncertainty, I suppose it is not surprising that fewer petitions were filed this year. Some IT firms in India announced they were reducing the number of lower-experienced workers they were filing petitions for, meaning more of those jobs will stay in India rather than being relocated to the U.S.”

At the start of the year, the government issued reminders that it is paying close attention to the future of the visa. USCIS promised a “more targeted approach” in visiting workplaces of H-1B petitioners. The Justice Department warned it was cautioning employers who are petitioning for H-1B visas not to discriminate against American workers. CNN reported the moves were intended to cripple outsourcing firms.

Further doubt was cast on the visa when President Donald Trump issued an executive order in April. Read more about the order on our website.

Although the volume of H-1B petitions for the 2018 financial year fell, the number is still more than double the annual allotment of 85,000, when the master’s cap is included. USCIS has a long backlog so applicants may have to wait several months before USCIS issues requests for evidence (RFEs) or approval notices.

Applying for H-1B visas is a difficult and time-consuming process. It makes sense to hire an experienced Austin immigration law firm. Please call us at (512) 474-4445.

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USCIS Report Highlights Characteristics of H-1B Specialty Occupation Workers

By Peek & Toland on July 10, 2017

The characteristics of H-1B visa specialty occupation workers were examined in a recent report by the Department of Homeland Security and U.S Citizenship and Immigration Services.

The report was entitled Characteristics of H-1B Specialty Occupation Workers. It took an in-depth look at visa holders in the 2015 fiscal year.

During that year, employers submitted more than 275,300 requests for H-1B visas. The number of petitions filed increased by 9 percent year on year.

The report highlighted the fact Indians are the largest beneficiaries of H-1B visas. In fact, 71 percent of visas approved in 2015 went to Indian-born recipients. China was a distant second at 10 percent. Canadians were the next most sizeable group.

The characteristics of specialty occupation workers

Most H-1B specialty occupation workers are from India

The specialty occupation workers tend to be young. Just over 70 percent were aged between 25 and 34 years of age at the time their petitions were approved, the report states. Almost half of beneficiaries of a first H-1B visa were under 30.

Nearly all of the recipients had attained a Bachelor’s degree at a minimum. The study found 45 percent had a Bachelor’s degree, 44 percent a Master’s degree, and seven percent a doctorate in 2015.

The majority of foreign workers brought to the United States on an H-1B visa worked in the computer and IT industries. The computer industry used 66 percent of the available visas in 2015. Administrative specialties and education were also listed as areas that employ considerable numbers of specialty occupation workers.

The most prevalent types of jobs taken by overseas workers in the computer industry were as analysts and programmers.

The survey reinforced how H-1B visas are used to bring over workers with very specialized skills sets.

How Much are H-1B Specialty Occupation Workers Paid?

The median annual compensation reported by companies that used H-1B visas to hire overseas workers was $79,000. Those hired for a second three-year term were paid $95,000 on average.

The Department of Homeland Security and USCIS report reinforces the importance of the H-1B visa program to Indian workers. It also highlights the high skill level many of these workers have.

The H-1B visa program has come under fire in recent months amid allegations that it is used to undercut the wages of American workers. However, the data in the report suggests specialty occupation workers are generally not being paid low wages.

Our experienced Austin immigration lawyers can answer your questions about H-1B visas and how your company can apply for them.  Call us for a consultation at (512) 474-4445.

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Premium Processing of all H-1B Visas is Suspended

By Peek & Toland on April 27, 2017

Earlier this year, U.S. Citizenship and Immigration Services (USCIS) announced it would temporarily suspend premium processing for all H-1B visa petitions.

The H-1B visa process is under review by the Trump administration. Many commentators viewed the announcement in March as a further restriction on legal immigration.

Stripping out premium processing eliminates the option of shorter wait times for a program that helps skilled foreigners to find work at US companies.

Premium processing of H-1B visas is suspended

Government suspends premium processing of H-1B visas

Premium processing allowed companies submitting applications for H-1B visas for potential employees to pay extra for a faster process.

 

Instead of waiting for months to find out if they were successful in the H-1B visa lottery, potential employers received a response within 15 days.

What is Premium Processing of H-1B Visas?

On its website, USCIS explained The 15 calendar day period starts when it receives the current version of Form I-907, Request for Premium Processing Service, at a correct filing address

Applicants for H-1B visas enter a lottery process. USCIS issued an approval notice, a denial, a notice of intent to deny, a request for more evidence or the opening of a fraud investigation for misrepresentation within the 15 calendar day period.

When the petition required additional evidence or a response to the notice of intent to deny, a new 15 calendar day period stated when USCIS received a complete response to the request for evidence or a notice of intent to deny.

How Much Did Premium Processing Cost?

Premium processing cost employers an additional $1,225. Processing of standard H-1B applications without the premium processing typically took between three to six months.

The suspension was imposed effective April 3, 2017. USCIS stated it would temporarily suspend premium processing for all H-1B visa petitions. The suspension is expected to last six months.

FY18 cap-subject H-1B petitions cannot be filed with USCIS before April 3, 2017. The suspension applies to all petitions filed for the FY18 H-1B regular cap and the master’s advanced degree cap exemption. USCIS said the suspension also applies to petitions that might be exempt from the cap.

Premium Processing Suspension Followed Criticism of H-1B Visas

President Donald Trump has criticized the H-1B visa system. These visas for skilled workers are the main route for foreigners holding Bachelor’s and Master’s degrees to work at US companies. In 2016, the demand for H-1B visas was three times greater than the 85,000 available.

CNN reported on concerns by the Trump administration that outsourcing firms were flooding the lottery system with applicants, picking up visas for foreign workers and farming them out to tech companies. The outsourcing firms were reported to be taking a sizable cut of the salary.

Although the visas are used to fill a skills gap, Trump has been outspoken about abuse of the program.

Companies seeking to obtain an H-1B visa are facing an increasing number of obstacles. You can find out more about the lottery process here. Call our Austin business immigration lawyers for a consultation at (512) 474-4445.

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