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EIG Dispatch | April 7, 2017

April 7, 2017

HIGHLIGHTS

  • FY 2018 H-1B Cap Reached
  • USCIS Confirms Policy for H-1B Computer-Related Specialty Occupations
  • USCIS Announces Further Measures to Protect the Integrity of the H-1B Program
  • China Implements New Work Permit System
  • India Introduces New Visas and Modifies E-Visa Program

FY 2018 H-1B Cap Reached

Today, USCIS announced that the fiscal year (FY) 2018 H-1B Cap has been reached. USCIS has received more than the congressionally mandated 65,000 visas for the general category and the 20,000 for the advanced degree exemption. All petitions received through today will be included in the lottery process USCIS will use to select 85,000 petitions to fill this year’s cap.

As in prior years, USCIS will first randomly select 20,000 petitions filed under the U.S. Master’s cap; all remaining un-selected Master’s cap petitions will then fall into the Regular cap. USCIS will then randomly select 65,000 petitions under the Regular cap.

Once all 85,000 petitions have been selected in the lottery, USCIS will either issue a Receipt Notice (confirming selection) or a Return Notice (confirming non-selection) and return the petition and filing fees to our office. This process takes several weeks to complete. Last year, we received Receipt and Return Notices on a rolling basis starting in May, and continuing through July. Once the lottery is complete, USCIS will adjudicate the selected petitions.

USCIS is still accepting and processing cap-exempt H-1B petitions, including:

  • H-1B Extensions;
  • Amendment Petitions, changing the terms of employment for current H-1B visa holders;
  • Petitions to change employers; and
  • Petitions to work concurrently in a second H-1B position.

Please note, USCIS suspended premium processing on April 3 for up to six months for all H-1B petitions, including cap-exempt petitions.

EIG will continue to monitor the selection process and provide updates.


USCIS Confirms Policy for H-1B Computer-Related Specialty Occupations

On March 31, 2017, USCIS published updated H-1B adjudication guidance confirming the standards for reviewing H-1B petitions. The new guidance does not change current and accepted policy for H-1B adjudication, but only reinforces and confirms current policy.

In this guidance, the USCIS Director reiterated current guidance in which adjudicating officers were instructed to assess all relevant factors when deciding whether a position, particularly a computer related position, qualifies as a specialty occupation. The factors that must be considered include the wage level, the complexity of job duties, and the level of understanding required for the role.

Whether a position meets the definition of a specialty occupation is an issue proactively addressed by EIG at the outset of each case.


USCIS Announces Further Measures to Protect the Integrity of the H-1B Program

On April 3, 2017, USCIS  announced several measures to combat fraud and abuse in current employment based immigration programs as part of its “Putting American Workers First” initiative.  The goal of this program is to ensure the H-1B program continues to “help U.S. companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country.”

As part of its new initiative, USCIS will focus on three specific types of employers:

  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute);
  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data; and
  • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

Overall, site visits are not new. Since 2009, USCIS has been conducting site visits to ensure H-1B employers are compliant with Department of Labor and USCIS regulations. USCIS’s plan to target certain H-1B Petitioners who more likely engage in fraudulent practices is also not new, it is merely a reaffirmation of USCIS current and longstanding policy to investigate employers, particularly those who, data indicates, may be misusing the H-1B program.

If you’re an H-1B worker or employer that would like to discuss best practices regarding on-site visits, please do not hesitate to reach out to EIG.


 China Implements New Work Permit System

Effective April 1, 2017, the Chinese Government launched a national online application system for work permit applications. The purpose of this program is to streamline current application and administrative procedures.

Under the new system, the following steps must be taken:

  • Employers are required to register online. After successful registration, the company can submit an application for Notice of Foreign Employment License.
  • Business invitation letters are no longer required and the foreign applicant can apply for the Z visa with the Notice of Foreign Employment License directly.
  • After the applicant enters China, he or she will receive a temporary residence registration within 24 hours.
  • The employer must apply for the work permit within 15 days after arrival. The company must submit a pre-application within the online system. Once the pre-application is approved, the company can submit the application on-site.
  • Once the application is approved, the employer can apply for the resident permit.

Under this new system, the application materials required are reduced by about half. Furthermore, applicants will be divided into 3 categories: A for high-level employees, B for professional personnel, and C for non-technical or service workers hired on a temporary/seasonal basis. The new system sets criteria in a point-based system based on salary, educational background, work experience, age, and language proficiency.

Employers should work with EIG and our local counsel to register with the new online system as soon as possible. Employers sending foreign nationals to China should expect delays as the new system takes national effect.


India Introduces New Visas and Modifies E-Visa Program

The Indian Government has added two new visa categories, the Film Visa and the Intern Visa. The Film Visa is available to foreign nationals wishing to shoot a feature film or TV show. This visa will be valid for one year and allows for multiple entries. The other new category, the Intern Visa, will allow foreign nationals who complete their graduate or post graduate degrees to pursue internship opportunities with Indian companies, education institutions, or NGOs. The visa will be valid for either one year or the duration of the internship, whichever is less, and will be subject to an annual numerical cap. The Intern visa will also not be available for mid-career or intra-company internships.

The Indian Government has divided the e-Visa into 3 different subcategories: the e-Tourist visa, e-Business visa, and e-Medical visa. The duration of stay on the e-Visa has been increased from 30 to 60 days. Double entries are now allowed on e-tourist and e-business visas, and triple entries are allowed on e-Medical visas. In addition, the window of entry to India has increased from 30 to 120 days after submission of the application. Moreover, expedites are also now available, with expedited e-business visas and e-Medical visas granted within 48 hours.