How can employers prepare for this year’s H-1B cap
After all, collecting and preparing the required information for the H-1B registration is just the first step.
What else should you consider as an employer?
More than anything, employers need to ensure that the job being offered to the prospective employee qualifies for H-1B classification. It would be terrible to have a registration selected in the H-1B lottery only to have USCIS ultimately deny the petition because the position does not qualify for H-1B classification.
To be eligible for H-1B status, a petitioner must establish that the offered position requires: (1) the theoretical and practical application of a body of highly specialized knowledge; and (2) the attainment of a bachelor’s degree or higher degree in a specific field of study as the minimum entry into the occupation.
The offered position must meet only one (1) of the following four (4) criteria to qualify as a specialty occupation:
Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the particular position; or
The degree requirement is common to the industry in parallel positions among similar organizations or, in the alternative, the job is so complex or unique that it can be performed only by an individual with a degree; or
The employer normally requires a degree or its equivalent for the position; or
The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.
In addition, the employer must pay the prevailing wage for the position as determined by its occupational classification and the geographic area of employment. We have created this instructional video that provides the required steps to determine the appropriate prevailing wage for an H-1B position.
H-1B Cap Season - FY2025 Considerations and Tips
As we are approaching February 2024, it can only mean one thing for employers and business immigration attorneys: the beginning of H-1B cap season for Fiscal Year 2025 (FY2025). This marks the start of the chaotic period from February to April when hundreds of thousands of H-1B cap registrations are prepared and filed with the hope of securing one of the 85,000 H-1B visa numbers available each fiscal year.
As every H-1B cap season creates significant anxiety and drama for immigration professionals, employers and foreign nationals, what are some positive actions we can take to mitigate these worries? Employers and foreign nationals should plan ahead, and communicate/collaborate meaningfully with their immigration counsel.
With so much at stake for U.S. employers and beneficiaries, we highly recommend that employers engage and collaborate with experienced business immigration attorneys to complete this process. Based on the lessons we learned from previous H-1B Registration periods, we offer the following helpful tips.
U.S. employers will need to immediately collect the following required information from the beneficiary (or their prospective employee):
Full legal name as listed in the Beneficiary’s passport;
Beneficiary’s gender;
Beneficiary’s date of birth (mm/dd/yyyy);
Beneficiary’s country of birth;
Beneficiary’s country of citizenship;
Beneficiary’s passport number; and
Whether the beneficiary possesses a Master’s (or higher) degree from a U.S. college or university.
Keep in mind that USCIS will most likely implement a new selection process this year in order to reduce chances for companies to game the system (and file multiple registrations for same beneficiaries). This new selection procedure will rely on the beneficiary's passport number, which is a unique identifier. USCIS has indicated that if a beneficiary does not possess a passport, they will not be able to be registered in the cap.
During FY2024, USCIS received over 483,000 registrations, more than 176,000 of which were for beneficiaries with multiple registrations, including one beneficiary with 83 registrations. In an effort to cut down on this fraud and misrepresentation, USCIS has promised to implement new selection procedures.
The U.S. employer will also need the following information about their company:
The Federal Employer Identification Number (FEIN);
Corporate headquarters address; and
Name and contact information, including cell phone number and email, of the person who is filing the H-1B registration on behalf of the Employer.
The process to prepare and electronically file H-1B registrations can be anxiety-laden and challenging, so it is essential to work with an experienced business immigration attorney. Follow me for more timely updates.
DHS Proposes Changes to the H-1B Program
On October 23, 2023, the Department of Homeland Security (DHS) will publish a Notice of Proposed Rulemaking (NPRM) to “modernize and improve the efficiency of the H-1B program, add benefits and flexibilities, and improve integrity measures.” Some of the proposed amendments will also impact other nonimmigrant classifications, including F-1 visa holders, and those that are filed on Form I-129, Petition for Nonimmigrant Worker.
Written comments must be submitted on or before December 22, 2023. I would recommend that immigration practitioners and companies that employ H-1B workers seriously consider submitting comments to NPRM, as this is one of the few times that we will have an opportunity to offer our perspectives and concerns and proposed regulatory changes.
This NPRM is very ambitious in the number of changes that DHS is looking to make to the H-1B program. Some of the proposals are not surprising and are merely an effort to codify case law as a result of the numerous lawsuits that USCIS has been involved in. Other provisions seem like a stark overreach in administrative authority, where USCIS is seeking to re-adjudicate certifications made by the U.S. Department of Labor (DOL). It is not clear if these new proposals will in fact result in fewer Requests for Evidence (RFEs) or provide adjudicating officers with more authority to issue RFEs.
The most eye-opening part of this NPRM is the data provided by DHS, which showed the significant amount of fraud that has taken place in the H-1B registration system by a small number of companies that collectively filed thousands of multiple registrations for the same beneficiaries.
Below is a summary of the NPRM and regulatory revisions that DHS is seeking to make.
Revising the regulatory definition of “specialty occupation”, including an explanation that (a) “normal” does not mean “always” in the context of an occupation requiring a particular educational degree; and (b) where an occupation may be filled by a range of degrees, there must be a direct relationship between the required degree field(s) and the job duties.
Clarifying when an amended or new H-1B petition must be filed because of a change in the place of employment (codifying Matter of Simeio Solutions, LLC)
Codifying the Deference Policy to state that if there has been no material change in the underlying facts (same parties, job duties and location), adjudicators should defer to a prior determination.
Revising the regulations to expressly require that a petition seeking an extension of status or amendment of stay (even without a request for an extension of the validity period) be accompanied by evidence of maintenance of status, which would impact any nonimmigrant visa petition (NIV) filed on Form I-129, Petition for Nonimmigrant Worker.
Eliminating itinerary requirement for H petitions because this information is repetitive of the information in the Labor Condition Application (LCA).
Allowing petitioners to submit requests to amend validity periods in the I-129, where the validity of the requested period expires before the petition is adjudicated, such as in cases where there is a Motion to Reopen/Reconsider.
Revising the definition of employers who are exempt from the H-1B cap by replacing “primarily engaged” and “primary mission” with “fundamental activity” to permit a nonprofit entity or governmental research organization that conducts research as a fundamental activity, but is not primarily engaged in research or where research is not a primary mission, to meet the definition of a nonprofit research entity.
Revising the requirements for beneficiaries to qualify for H-1B cap exemption when they are not directly employed by a qualifying organization, but still provide essential work, even if their duties do not necessarily directly further the organization’s essential purpose.
Extending the F-1 cap-gap for authorized period of stay and employment authorization, for F-1s who are chosen in the H-1B lottery, from October 1st of that fiscal year to April 1st of that fiscal year. For example, if an F-1 student has their H-1B registration selected and a non-frivolous H-1B petition is filed for a change of status to October 1, 2024, the F-1 student’s cap-gap would be extended to April 1, 2025.
Permitting employers to request an employment start date for H-1B cap-subject petitions that are after October 1st of the relevant fiscal year, so long as the start date is within six months of the date of filing (codifying Acquia Inc, et al., v. USCIS)
Reducing H-1B registration fraud/abuse by selecting a unique beneficiary (one beneficiary based on passport number) instead of selecting registrations.
Prohibiting related entities from submitting multiple registrations for the same beneficiary.
Enabling USCIS to deny H-1B petitions or revoke approved H-1B petitions where the underlying registration contained false attestations or was otherwise invalid.
Improving the integrity of the H-1B program by: (a) codifying USCIS’ authority to request contracts; (b) requiring that the petitioner establish that it has an actual, non-speculative position in a specialty occupation available for the beneficiary as of the requested start date; (c) ensuring that the LCA properly supports and corresponds with the petition; (d) revising the definition of “United States employer” by codifying the existing requirement that the petitioner has a bona fide job offer for the beneficiary to work within the United States as of the requested start date; and (e) requiring that the petitioner have a legal presence and be amenable to service of process in the United States.
Clarifying that beneficiary-owners may be eligible for H-1B status, while setting reasonable conditions for when the beneficiary owns a controlling interest in the petitioning entity.
Codifying USCIS’ authority to conduct site visits and deny or revoke approved H-1B petitions for the employer or third party site’s refusal to comply with site visits.
Clarifying that if an H-1B worker will be staffed to a third party, meaning they will be contracted to fill a position in the third party’s organization, as opposed to providing services at a third party location, it is the requirements of that third party, and not the petitioner, that are most relevant when determining whether the position is a specialty occupation. (Codifying Defensor v. Meissner)
Creating “use or lose” provisions to require beneficiaries of approved H-1B cap petitions to timely enter the U.S. and commence employment with the petitioner, as there is “a significant percentage of H-1B beneficiaries do not enter the United States within six months of the requested employment start date or H-1B petition approval date, whichever was later, or within 90 days of the visa validity start date. The data also show a large percentage of new or amended petitions received before the beneficiary’s arrival in the United States, suggesting that there may not have been a bona fide job opportunity available at the time of filing and the initial petition filed was simply to secure an H-1B cap number for the worker.”
We will be taking a deeper dive into some of these proposed changes to the H-1B program, so stay tuned!