Premium Processing Updates

USCIS has just announced that premium processing requests will be able to be submitted as of February 19, 2019, for H-1B petitions filed on or before December 21, 2018. If the petition was transferred, the request for premium processing service should be submitted with the transfer notice to the service center now handling the petition. If the petition was issued a request for evidence (RFE), the RFE response should be submitted with the premium processing request.

Earlier this year, U.S. Citizenship and Immigration Services (USCIS) announced that it will resume premium processing of certain H-1B petitions previously affected by the temporary suspension of the service. As of January 28, 2019, all fiscal year (FY) 2019 H-1B cap-subject petitions can be upgraded to premium processing, including those eligible for the master’s cap. The continuation of premium processing will affect those beneficiaries with H-1B cap-subject petitions filed April 1, 2018, that have not yet been approved by USCIS. Petitioners with Requests For Evidence (RFE) pending for these petitions may submit a request to upgrade the petitions along with their RFE response.

The temporary suspension announced in September 2018 remains in effect for H-1B petitions filed on or after December 22, 2018. We will continue to monitor the situation and notify our clients once premium processing resumes for these H-1B petitions. Please note that on October. 1, 2018, the premium processing fee increased from $1,225 to $1,410 for any new premium processing requests.

Changes Ahead for H-1B Cap Season

On January 31, 2019, the Department of Homeland Security (DHS) announced the final rule making changes to the H-1B cap season lottery process. The changes are intended to both streamline the process for employers and prioritize H-1B visas for employees holding a master’s or higher degrees from U.S. institutions.

In a labor market featuring low unemployment and increased competition for highly skilled workers, H-1B classification is a lifesaver for many companies. H-1B status is more flexible than many other work-authorized status categories and the one for which companies and their foreign national employees are most likely to qualify. Partly because of this flexibility, the Immigration and Nationality Act limits the number of new H-1Bs to 85,000 annually. Of that total, 20,000 are reserved for foreign national employees holding a master’s or higher degrees from a U.S. college or university. Because demand for H-1Bs vastly exceeds supply, in the past employers, submitted H-1B petitions the first week of April because petitions for the next fiscal year (which starts October 1) cannot be filed more than 180 days in advance. All submissions received during the first week were run through a randomized lottery process to determine which 85,000 petitions to process.

The new rule makes two important changes to the process:

  • USCIS will create an electronic H-1B registration system. All employers wishing to sponsor an employee for H-1B status in the annual April cap season must create a registration in the electronic system for each employee they intend to sponsor. USCIS will run the cap lottery using these electronic registrations, and employers will not be required to prepare and submit actual H-1B petition documents until notified by USCIS that it selected their registration for processing in the lottery. This process will likely increase the number of H-1B registration requests made annually. USCIS had intended to implement this new system for 2019 but was unable to complete the system in time, so this change has been delayed until 2020.
  • USCIS will reverse the order of the two lotteries. Historically, USCIS would first run all advanced-degree H-1B petitions through the 20,000-slot advanced-degree lottery. All advanced-degree employees not selected would then return to the main pool of applicants for one of the remaining 65,000 H-1B visas. Starting in 2019, USCIS will first run the 65,000-slot lottery using all applicants, including advanced-degree applicants. Any advanced-degree applicants not selected in the main lottery will then run through the 20,000-slot advanced degree lottery. The administration’s rationale is that reversing the lottery process will prioritize advanced-degree applicants.

The Return of “No- Match” letters

The Social Security Administration (SSA) announced that beginning Spring 2019, it will notify each employer with at least one W-2 form where the name and social security number do not match SSA’s records. The notice technically called an Employer Correction Request Notice, is commonly referred to as a “no-match” and advises that corrections are needed. Issuing no-match letters have happened in the past. SSA has taken an intermittent approach to issue them over the years. In this latest version, SSA has made sample notices available. It has also provided instructions on how to resolve a no-match. SSA encourages employers and third-party submitters to register for Business Services Online (BSO) to ensure the accuracy of wage reporting.

However, no-match letters do not just raise tax/withholding issues. Employers should be very careful in their handling of no-match letters as immigration compliance/employment verification issues can arise. In light of this, the Department of Justice (DOJ) has issued guidance on dealing with SSA no-match issues. As noted in the DOJ’s Do’s and Don’ts, an employer should not use the receipt of a no-match letter to terminate or take any adverse actions against the employee. In addition, employers are instructed to allow a reasonable period for an employee to address a no-match.

While the SSA and DOJ resources are a good starting point, they do not address everything employers may need to consider when handling the receipt of a no-match letter. For example, employers need to consider who internally should handle the communication to SSA and the employee. They must also determine the timeframes for addressing the no-match and what to do if previous no-match letters are issued for the same employee. No-match letters need to be taken seriously from both a withholding and immigration perspective.

Consular Update for China

Beginning March 1, 2019, interviews for H and L visas will be conducted only at the U.S. Embassy Beijing, U.S. Consulate General Guangzhou, and U.S. Consulate General Shanghai. The Department of State (DOS) will no longer conduct H or L visa interviews at the U.S. Consulate General Chengdu or U.S. Consulate General Shenyang. DOS announced the changes were made due to the volume and complexity of H and L visa cases and to ensure that DOS has the proper resources and expertise to process them efficiently.

A visa allows a person to apply for admission to the U.S. A person living overseas or who needs to travel outside the U.S. needs a visa to apply for admission to the U.S. as an H or L. An H-1B petition must first be approved by USCIS, which is under the jurisdiction of the DHS. Upon approval of the H-1B petition, the person can apply for a visa at a U.S. embassy or consulate abroad, which are under the jurisdiction of DOS. Upon approval of the visa, the person would be issued an H-1B visa in his or her passport following a successful interview. While DOS has always had the authority to determine eligibility for a visa and to refer a petition back to USCIS for revocation, DOS’ announcement raises the inference that its officers will be more thoroughly scrutinizing H and L visa applications.

This change will likely result in increased wait times for visa interviews at the U.S. Embassy Beijing and Guangzhou and Shanghai Consulates.