Seyfarth Synopsis: The EO orders the Departments of State, Justice, Labor, and Homeland Security to propose new rules and issue new guidance to “protect the interests of U.S. workers” and “promote the functioning of the H-1B visa program.”

On Tuesday, April 18, President Trump signed an Executive Order (EO) instructing the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to propose new rules and issue new guidance “as soon as practicable and consistent with applicable law” to “protect the interests of U.S. workers,” within the administration of the U.S. immigration system. Moreover, the EO instructs the agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid” foreign nationals.

The EO neither creates any specific new requirements for employers nor directs the affected agencies to take any action other than prepare substantive proposals at a future uncertain date. According to statements made by the President and Senior Administration Officials, the EO aims to dismantle the computer generated H-1B visa lottery system and the current four-tiered prevailing wage system as well as ferreting out fraud and abuse within the existing H-1B program.  Implementation of such recommendations would require congressional action.

Seyfarth Shaw will continue to closely monitor the Departments reactions to the EO, and we will provide updates as developments occur.

Seyfarth Synopsis: USCIS completes the lottery process and receives 199,000 H-1B cap petitions.

On April 17, 2017, United States Citizenship and Immigration Services (USCIS) announced that it received 199,000 H-1B petitions to meet both the Master’s and regular H-1B quotas (or “caps”) for Fiscal Year 2018, which begins on October 1, 2017.  This means that USCIS received more than double the number of available H-1B petitions in the first week of filing, and that more than 20,000 of these petitions were filed under the Master’s cap.  However, the number of petitions decreased this year, down from more than 236,000 petitions filed for Fiscal Year 2017.

In addition, USCIS announced that they completed a computer-generated random selection process — the lottery — for all cap-subject filings received from Monday, April 3 through Friday, April 7, 2017 to determine which filings to adjudicate.  USCIS first conducted the lottery process for H-1B petitions subject to the Master’s cap, which sets aside 20,000 H-1B visas for holders of U.S. Master’s degrees or higher degrees.  Any Master’s cap petitions not selected in the Master’s lottery were eligible for selection in the regular H-1B lottery, effectively providing two opportunities for an H-1B visa.  USCIS will now begin the process of sending Receipt Notices for petitions selected in the lottery while rejecting and returning petitions, together with the associated filing fees, that were not selected in the lottery.

For additional background information on the H-1B visa program and the cap, please see our previous One Minute Memo titled, “H-1B Work Permit Filings: Will You Beat the Cap?”

USCIS recently announced that the agency will temporarily suspend premium processing for all H-1B petitions beginning on April 3, 2017.  USCIS indicates the purpose of the suspension is to process H-1B petitions that have been pending for many months, including in particular those approaching the 240-day automatic extension limitation, which would thereby reduce overall H-1B processing times.  Please find below a list of frequently asked questions with our insights.

1.  What is the effective date of the suspension?

The premium processing suspension is effective on April 3, 2017.  The last day that USCIS will accept H-1B petitions filed with premium processing is Friday, March 31, 2017.

2. How long will the suspension last?

USCIS states that the suspension may last up to six months.  USCIS imposed a similar suspension in the past and lifted the suspension early.

3.  Does the suspension apply only to H-1Bs or other visa categories?

The suspension is limited to H-1B petitions only.  This includes H-1B petitions seeking to extend status, amend status, change status, consular process, or change employers.

4.  Can H-1B petitions be filed with premium processing in the month of March?  If so, will USCIS continue to honor premium processing cases if they are still pending beyond April 3rd?

Yes, USCIS will accept an H-1B petition filed with premium processing on or before Friday, March 31, 2017.  We anticipate that any H-1B petition filed with premium processing that is receipted on or before March 31st will receive the full benefit of premium processing, even if the adjudication continues beyond April 3rd.  However, based on the posted USCIS announcement, the agency has discretion to refund premium processing fees if the agency has not taken adjudicative action on the case within  the 15-calendar-day premium processing period.

Continue Reading USCIS Suspends H-1B Premium Processing Beginning April 3, 2017