H- 1B QUOTA OPENS ON APRIL 1 – ARE YOUR COMPANY'S H-1B QUOTA PETITIONS READY TO BE FILED?

The H-1B quota for fiscal year 2017 (October 1, 2016 through September 30, 2017) will open on April 1, 2016. Similar to the last few H-1B quota seasons, our firm is anticipating that the H-1B quota for fiscal year 2017 will be met during the initial filing period of April 1, 2016 through April 7, 2016. When the H-1B quota is met, employers will not be able to file additional H-1B quota subject petitions until the next H-1B quota becomes available on April 1, 2017 (for H-1B employment beginning on or after October 1, 2017).

The number of H-1B quota visas remains the same as in previous years, 65,000 for the regular H-1B quota with an extra 20,000 numbers available for individuals who have earned U.S. Master's or higher degrees. During the last H-1B quota period for fiscal year 2016, the U.S. Citizenship and Immigration Services (USCIS) received more than 233,000 petitions. This was an increase of  more than  60,000 petitions  received  (or an approximately 25% increase) in the fiscal year 2016 H-1B quota in comparison to the fiscal year 2015 H-1B quota. It is assumed that the number of petitions received by the USCIS in this upcoming fiscal year 2017 H-1B quota will be significantly higher with some estimating that more than 300,000 H-1B quota subject petitions may be received by the USCIS.

If the USCIS receives more petitions than H-1B quota numbers available, the USCIS will conduct a random selection process of the petitions received. The first random selection process will be conducted for the petitions received claiming the exemption under the U.S. Master's or higher degree. The petitions not selected in this random selection process will then be added to the regular H-1B quota petitions and the USCIS will then conduct another random selection process. If the petition is selected in either of the random selection processes, the USCIS will then adjudicate those petitions. If the petition is not selected in either of the random selection processes, the petition will be returned to the employer (or its representative) without adjudication. No special preferences are given in the random selection process for types of positions, countries of birth, educational background, etc. If a petition is received after the H-1B quota is met, the petition will also be returned to the employer without being adjudicated.

Therefore, employers should currently be preparing their H-1B quota petitions so that they can be filed during the upcoming H-1B quota initial filing period. Please note that as part of the H-1B process, the employer (or its representative) must first obtain a certified Labor Condition Application (LCA) from the U.S. Department of Labor (DOL). The DOL may take 7+ plus days to adjudicate the LCA, assuming that the DOL's iCERT system continues to function properly.

Additional information about the fiscal year 2017 H-1B quota will be contained in our firm's future Immigration Updates when it becomes available.

STEM OPT LITIGATION UPDATE

On January 23, 2016 the U.S. District Court for the D.C. District granted the Department of Homeland Security’s (DHS) request that the invalidation of its STEM OPT 2008 final rule set for February 12, 2016, be extended for 90 days until May 10, 2016. The government requested the extension so that it might have a chance to review and process the more than 50,500 comments it received from the public in response to its Notice of Proposed Rulemaking issued in October 2015. In August 2015, the court vacated the rule that allowed STEM students in F-1 status to extend their OPT employment authorization for 17 months. To avoid hardship to thousands of foreign students currently present and working pursuant to this rule, the District Court postponed the invalidation of the rule for six months, until February 12, 2016.

In rendering its original decision, the District Court indicated that when issuing the rule in 2008, the DHS did not comply with the normal rulemaking process requiring the agency to issue a notice and allow for public comment. The DHS issued the 2008 rule pursuant to emergency rulemaking provisions that allow an agency to put into effect rules for good cause without public notice and comment. Unless the rule was issued, the DHS argued, thousands of foreign students who were unable to secure an H-1B work visa would be forced to leave the United States. The majority of foreign students will only qualify for the H-1B work visa, which is subject to an annual quota that is generally met the first week it opens. Due to this oversubscription, many foreign students were not able to secure an H-1B visa before their one-year period of OPT work authorization expired. The DHS insisted that the rule was necessary to allow these foreign students multiple opportunities to secure an H-1B work visa.

VISA BULLETIN FOR MARCH 2016

The Department of State (DOS) released the monthly Visa Bulletin and below is a summary of green card Final Action Dates and Dates For Filing dates for employment-based immigrant visa categories for the month of March.

PLEASE NOTE: Per a new USCIS policy, a week after the Department of State (DOS) issues its monthly Visa Bulletin indicating immigrant visa availability for the next month, the USCIS  will make its  own separate determination on green card availability. If green cards are available for a certain category, the USCIS will post its own notice on its website at: www.uscis.gov/visabulletininfo to alert immigrants applying in those categories with more availability, that they may use the Dates for Filing chart and not the Final Action Date chart. Thus immigrants may no longer rely on the DOS Visa Bulletin, but must wait one week after its publication and then look to the USCIS to see whether a green card is available to them.

Green Card “Dates for Filing” Availability Dates

Individuals with priority dates prior to the dates listed in the chart below are eligible to file their green card applications during the month of March.

Click here to view the table.

Green Card Approval “Final Action Dates”

Individuals with priority dates prior to the dates listed in the chart below have a green card available to them during the month of March, therefore, the US government may take final action on their case.

Click here to view the table.

Below is a summary of changes from the visa bulletin for last month for Final Action Dates:

  • The EB-2 China category has advanced several months from March 1, 2012 to August 1, 2012.
  • The EB-2 India category has advanced two months from August 1, 2008 to October 15, 2008.
  • The EB-3 World and Mexico categories have advanced several months from October 1, 2015 to January 1, 2016.
  • The EB-3 China category advances significantly from October 1, 2012 to June 1, 2013.
  • The EB-3 India category advances one month from June 15, 2004 to July 15, 2004.
  • The EB-3 Philippines category advances several months from January 8, 2008 to March 15, 2008.
  • The EB-5 China advances a few days from January 15, 2014 to January 22, 2014.