News

USCIS announced on Friday, March 27, 2020 that they had completed the H-1B lottery for the upcoming fiscal year. Each year, 85,000 visa numbers are available for individuals who are not already in H-1B status and who have been offered specialty occupation positions by U.S. employers. (Certain employers such as colleges, universities, government research organizations, or non-profit research organizations are exempt from this lottery.) 20,000 of these numbers are allocated to those with at least a U.S. Master’s degree. (Please note that of the total 85,000, 5800 however are reserved for those who are applying under the H-1B1 program – specialty occupation workers of Chilean or Singaporean citizenship. In theory, when these numbers are not used, they are returned to the H-1B pool.) Over the weekend, employers and their attorneys were informed of the results.

USCIS released statistics today indicating that there were nearly 275,000 registrations with 46% of the registrants with at least a U.S. Master’s degree. For more details, check out the link:

https://www.uscis.gov/news/news-releases/fy-2021-h-1b-cap-petitions-may-be-filed-april-1

The above was provided for educational purposes only. Please contact Clark Lau LLC if you have any questions and how the above may apply to your specific circumstances.

Our world is full of acronyms and the two latest ones are COVID-19 (Corona Virus Disease 2019) and WFH (work from home). Needless to say, COVID-19 has disrupted our lives in all aspects and many have shifted either voluntarily or mandatorily to a WFH situation. In the immigration context, not only are there many more acronyms but additional considerations arise for employers as far as how to remain compliant with all the rules.

The first step of the H-1B (specialty occupation), H-1B1 (Singaporean/Chilean specialty occupation), and E-3 (Australian specialty occupation) nonimmigrant/short-term visa programs requires an employer to file an application with the U.S. Department of Labor (DOL). The specific application, the Labor Condition Application (LCA), contains four attestations, one of which is to notify other workers in the same occupation in the same area of intended employment of the filing of the nonimmigrant petition and another of which is the payment of a required wage.

With WFH, employers have been asking how they can properly comply with the notification process. DOL issued a Frequently Asked Questions (FAQ) on Friday, March 20, 2020 which reminds employers that they may use electronic means to comply with the requirements. DOL also took the opportunity to provide employers with extensions up to May 12, 2020 to respond to ongoing deadlines with their different programs if the original deadline fell between March 13, 2020 and May 12, 2020.

Given the fact that a lot of businesses cannot operate as usual, employers also have questions concerning layoffs, terminations, and payment of wages. The H-1B rules indicate that an employer must continue paying the employee regardless of whether there is work. No specific guidance has been provided just yet allowing for any special dispensation.

Further, if the employer terminates the employee before the end of the visa petition period, the rules require an employer to pay for reasonable return transportation costs. The employee’s status also ends, with a short grace-period of no more than the shorter of 60 days or the end of the visa petition period. If you find yourself in this situation, be sure to contact competent counsel to ensure compliance and to find answers to these and other related questions.

COVID-19 and WFH and many other related fact patterns are raising novel issues and challenges for employers. Stay tuned as we learn more.

Additional Resources:

From the Office of Foreign Labor Certification, U.S. Department of Labor:

https://www.foreignlaborcert.doleta.gov/pdf/DOL-OFLC_COVID-19_FAQs_Round%201_03.20.2020.pdf

From the Wage and Hour Division, U.S. Department of Labor:

https://www.dol.gov/sites/dolgov/files/WHD/legacy/files/whdfs62I.pdf

The above has been provided for informational purposes only and does not constitute legal advice. Please contact your Clark Lau LLC attorney or competent immigration counsel for guidance specific to your situation.

There’s no denying that COVID-19 has disrupted every aspect of our lives, from professional to personal. Our top priorities include the health and safety of our team members as well as delivering uninterrupted service to our clients. These unusual times require us to find new and innovative ways to do business.

Clark Lau LLC has team members working from home. Technology allows us to continue to conduct phone and video consultations with clients, to respond to inquiries concerning employer compliance during these unprecedented times, to report on late breaking changes to immigration practice and policies, and to continue to prepare and file immigration petitions and applications. (Due to the fact that immigration filings must still be done via paper, team members drop by the office on an as-needed-basis only.) We also continue to meet amongst ourselves via video conferences to share our collective knowledge, to trouble-shoot difficult and novel issues, and to ensure that we continue to work as a team. We believe that a firm built on mutual trust and cooperation serves our clients best, and we continue to foster that environment through regular one-on-one and all-team video conferences. (And even lunch hangouts ... online of course!)

While we all hope that the COVID-19 pandemic will end soon, we believe that the current times will only make us stronger and help us develop even more creative, more efficient, and more effective ways of serving you.

We wish you and your family good health throughout this period.

The current administration just announced that, as of 11:59 PM Monday March 16, 2020, travelers who have been to the United Kingdom or Ireland within the last 14 days will also be prohibited from entering the U.S. The U.K. and Ireland join the list of countries that include the People’s Republic of China (excluding Hong Kong and Macau), Iran, and countries from the Schengen region (Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland) on this list.

We have also received reports that ESTA registrations are being revoked, without prejudice, for the time being to minimize attempts restricted travels may make to enter the U.S. These individuals should be able to register for ESTA once again after the restrictions are lifted.

Again, some of the exceptions to the travel restrictions include the following:

• U.S. Citizens and Lawful Permanent Residents of the United States (green card holders);
• Spouses of U.S. Citizens and Lawful Permanent Residents;
• Parents/Legal Guardians of U.S. Citizens and Lawful Permanent Residents, so long as the U.S. Citizen or Legal Permanent Resident is unmarried and under the age of 21;
• Sibling of U.S. Citizens and Lawful Permanent Residents, so long as both are under the age of 21;
• Child, foster child, or ward of U.S. Citizens and Lawful Permanent Residents or prospective adoptee;
• Members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces;
• Individuals traveling at the invitation of the U.S. Government for a purpose related to containment or mitigation of the virus;
• Certain individuals entering the U.S. for government business, law enforcement objectives, or in the national interest;
• Individuals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee.

Clark Lau LLC is monitoring the above and related developments. The above is provided for educational purposes only and does not constitute legal advice. Please contact your Clark Lau LLC attorney to see whether the above impacts your circumstances.

President Trump issued another Presidential Proclamation as of March 11, 2020 restricting the entry of certain individuals who are attempting to enter the United States and who have been in any of the 26 Schengen countries within 14 days of their attempt to enter. This proclamation adds to the prior two proclamations that restrict entry for those who have been in the People’s Republic of China (excluding Hong Kong and Macau) and Iran. Notably, the UK and Ireland are not included.

Certain exceptions to the travel restrictions include the following:

• U.S. Citizens and Lawful Permanent Residents of the United States (green card holders);
• Spouses of U.S. Citizens and Lawful Permanent Residents;
• Parents/Legal Guardians of U.S. Citizens and Lawful Permanent Residents, so long as the U.S. Citizen or Legal Permanent Resident is unmarried and under the age of 21;
• Sibling of U.S. Citizens and Lawful Permanent Residents, so long as both are under the age of 21;
• Child, foster child, or ward of U.S. Citizens and Lawful Permanent Residents or prospective adoptee;
• Members of the U.S. Armed Forces and spouses and children of members of the U.S. Armed Forces;
• Individuals traveling at the invitation of the U.S. Government for a purpose related to containment or mitigation of the virus;
• Certain individuals entering the U.S. for government business, law enforcement objectives, or in the national interest;
• Individuals whose entry would not pose a significant risk of introducing, transmitting, or spreading the virus, as determined by the Secretary of Health and Human Services, through the CDC Director or his designee.

Clark Lau LLC is monitoring the above and related developments and how this will impact those seeking admission to the U.S. and those who are here for a limited duration, such as those in ESTA and tourist visas.

The above is provided for educational purposes only and does not constitute legal advice. Please contact your Clark Lau LLC attorney to see whether the above impacts your circumstances.

See the link below for the full text:

https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrants-certain-additional-persons-pose-risk-transmitting-2019-novel-coronavirus/

While there are 65,000 H-1B numbers available each year, and an additional 20,000 for those with at least a U.S. Master’s degree, there has not been enough to meet market demands. As a result, employers have had to plan ahead. In fact, in the past several years, employers have had to prepare complete petitions, along with supporting documentation, and file them as far as six months in advance to have a chance at a lottery system that determines whether their petitions would even be reviewed. The chance of success has hovered around 30-40%. (This refers to the success rate of being chosen for processing, not the actual success rate of the petition.)

This year, the United States Citizenship and Immigration Services (USCIS) announced on December 6, 2019 that they will be employing a new electronic registration system which will require employers first to register their cases between March 1, 2020 and March 20, 2020 noon EST. (This avoids having to prepare a complete filing prior to knowing whether the petition would even be reviewed by an officer.) Once the registration period is closed, USCIS will conduct a lottery to determine which cases will have the opportunity to proceed with filing an actual petition. This is the first time that USCIS is employing this system and they have been releasing information about the process piecemeal over the course of the last few weeks. To date, the actual relevant components of the system are not fully live yet. Below are some key dates for your reference.

February 24: Petitioners will be able to create H-1B registrant accounts. We will provide you with more detailed instructions regarding the creation of such accounts. Please note that each employer (as designated by separate Federal Employer Identification Numbers) must create a separate account.

In the meantime, attorneys will also be able to create separate accounts.

March 1: H-1B registration period opens at noon EST.

During the registration period, attorneys will be able to help prepare draft registrations of all of your employees. Once the drafts are complete, attorneys will be able to share these with you via your H-1B registrant account. You will have the opportunity to review and “sign off” on the registration list before the attorneys submit the official registration. Please note that without your “sign off” attorneys will not be able to register your cases. Therefore, please ensure that you have email access during this period.

March 20: H-1B registration period closes at noon EST. Please note that there is no difference whether one registers on the first day or last day of the registration period. Our firm has elected to wait a few days before registering cases to avoid any technical problems that may arise during the first few days.

March 31: Date by which USCIS intends to notify selected registrants.

April 1: The earliest date that FY 2021 H-1B cap-subject petitions may be filed. Employers will have a 90-day period to file a complete H-1B petition.

Stay tuned for more updates.

USCIS announced this past week that they have not only received more petitions than there are available H-1B visa numbers (85,000) but they have also completed their lottery selection process. For those petitioners who have selected to use the Premium Processing option, which is an additional $1410 in government filing fees, they are already receiving notification as to whether their petitions have been selected in the lottery for substantive processing. For those who have not selected Premium Processing, or for those petitions not available for Premium Processing, it is still a waiting game. (Premium Processing is an option for employers to pay an additional filing fee for USCIS to generate a response, whether a decision or a request for more information, within 15 days of the receipt of the petition. Under the H-1B lottery process, the 15-day clock does not technically start upon receipt of the petition due to the high volume of petitions USCIS receives during the first week of April.)



In prior communications, we announced that the H-1B demand had decreased. This was incorrect. The numbers have actually been fluctuating. In FY2017 (April 2016), employers filed 236,000 petitions. In FY2018, employers filed 199,000 petitions. In FY2019, employers file 190,098 petitions. This April, for FY2020, employers file 201,000 petitions. Regardless, these numbers show a demand much greater than the allotted 85,000 that are available.



The above has been provided for informational purposes only.

USCIS just announced that they received 201,000 H-1B petitions at the beginning of this month which exceeds the number of H-1B visa numbers available for Fiscal Year 2020. This is no surprise given that employers have been filing H-1B petitions that have exceeded the number available each year for many years now. What is interesting is that the actual number of H-1B petitions that have been filed with USCIS continues to decrease. There were 233,000 last year and 236,000 the year before.



Despite the decrease in petition numbers, there still is not enough H-1B visa numbers to meet the demand. For this reason, USCIS continues to use an established lottery system to select 65,000 petitions for review, and then another 20,000 petitions for those remaining where the beneficiary has at least a US Master's degree. Please note that while the lottery system has been in place for some time now, the order of selection this year is new. This order gives preference to those petitions with beneficiaries who have at least a US Master's degree. Starting next year, a completely new process, which will include an electronic pre-registration system, will come into play. In the meantime, over the next few weeks, employers and employees alike wait to see whether their petitions have been selected for processing. The above has been provided for informational purposes only.

Employers filing H-1B petitions for individuals who have never had H-1B status have had to wait for the availability of a visa number, unless the employer is exempt. (Exempt employers include institutions of higher education, non-profit research organizations, and government research organizations.) Over the last few years, there has been a shortage of H-1B visa numbers to meet the demands. As a result, employers have had to participate in a lottery process that started April 1 each year (six months before the first day of each fiscal year October 1) to attempt to secure a number.



Earlier this month, USCIS published proposed regulations regarding an electronic registration process for the H-1B lottery. Right now, we are in a 30-day comment period that will end the first week of January 2019. USCIS is hoping that they will be able to implement the registration process for Fiscal Year 2020, that is, for the filing period that starts April 1, 2019. Below are some highlights.

• All H-1B petitions to be entered into the lottery will be subject to an electronic registration process.
• USCIS will announce the registration period at least 30 days in advance of the start of the process and the process will be at least 14 days long.
• The intention is to start the registration process in advance of April 1, 2019.
• There is no fee proposed for the registration process.
• In order to participate in the registration process, an employer must provide the following:
  
  
  • Employer's name, Federal Employer Identification Number (FEIN), and Employer's mailing address;
  • Employer's authorized representative's name, job title, and contact information (telephone number and email address);
  • Beneficiary's full name, date of birth, country of birth, country of citizenship, gender, and passport number;
  • Whether the Beneficiary has obtained at least a Master's degree or higher from an institution of higher education in the United States;
  • Employer's attorney or representative; and
  • Possible additional information to be determined by USCIS.
• Employers will be able to register each beneficiary only once and must attest to employing the individual in connection with a bona fide job offer if selected in the process.
• If one is not selected in the process, one will have to re-register in the following year. No preference will be given to those who were registered previously.
• USCIS will consider all of the petitions (regardless of whether the individual has a U.S. master's degree or higher) and select what they believe will be enough to meet the initial 65,000 H-1B visa allotment. Then, USCIS will consider those remaining petitions where the beneficiary has a U.S. master's degree or higher, and conduct a lottery for enough petitions to meet the 20,000 allotment. This is different from the current order and the stated goal is to ensure that more H-1Bs are given to those who have at least a U.S. master's degree or higher.
• Employers will be notified of selection via an email and of where and when to file the actual petition.
• If selected USCIS is proposing to provide employers with a 60-day window within which to file the H-1B petition. USCIS may stagger the filing windows to accommodate its workforce. USCIS believes that this 60-day window will be enough time for an employer to file a Labor Condition Application with the US Department of Labor and then file the H-1B petition.

As we are still in a comment period, any of the above proposals may change. Please stay tuned and we will keep you updated. The above has been provided for educational purposes only.

Teaders of the U.S., Canada, and Mexico have just signed off on the renegotiated version of the North American Free Trade Agreement (NAFTA), now named the United States-Mexico-Canada Agreement (USMCA), while attending the G20 Summit today. While the respective governments will have to ratify the agreement, the burning question from the immigration standpoint is how will this impact the nonimmigrant TN visa classification which allows citizens of Canada and Mexico to enter the US to work for US employers under a prescribed list of occupations.



Based on what we see, other than updating some headings and terms, the answer is that there will be little impact. The nonimmigrant option remains and the occupational classifications remain the same, with the addition to the list of "Actuary" and "Plant Pathologist" which was approved back in 2003.



This information was provided for educational purposes; stay tuned for more.