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New USCIS Policy: H-1B Cap “Related-Entity” Filing Bar for Employers with Different Corporate Ownership and Control

Tiyalaw — Thu, 29 Mar 2018 17:04:30 +0000

New USCIS Policy: H-1B Cap “Related-Entity” Filing Bar for Employers with Different Corporate Ownership and Control

There is a new policy on H-1B Cap “Related-Entity” Filing Bar by U.S. Citizenship and Immigration Services (USCIS). USCIS will deny or revoke all multiple filings of H-1B Visa Cap Petitions filed without a “legitimate business need” for the same beneficiary by “related entities” for “substantially the same job” in the same H-1B visa fiscal year, even if the petitioners are unrelated through corporate ownership and control, or a duplicate petition is later withdrawn. For examples, petitioners are considered “related entities” even if they have separate FEINs, operation locations, management, and ownership.

The list provided by immigration regulation in 8 C.F.R. § 214.2(h)(2)(i)(G) describing “related entities” as “…. (such as a parent company, subsidiary, or affiliate)….” are examples only and not an exhaustive list. Factors determining “related entities” and “substantially the same job” will be based on the totality of the records including, but are not limiting to: familial ties, proximity of locations, leadership structure, employment history, similar work assignments, and substantially similar supporting documentation.

Each of these “related entities” must separately demonstrate a “legitimate business need”. Otherwise, all these H-1B Cap Petitions will be revoked or denied.

This USCIS policy is to increase fairness in the random lottery process for the limited H-1B visa numbers so that other H-1B Cap Petitions will have a chance of being selected.

A USCIS policy memorandum serves as a guidance only, and does not create any rights to immigration benefits. Each case is adjudicated on a discretionary basis by USCIS.

This USCIS policy memorandum is based on an AAO decision in the Matter of S- Inc. For further information on Matter of S- Inc., Adopted Decision 2018-02 (AAO Mar. 23, 2018), please visit: https://www.uscis.gov/sites/default/files/USCIS/Laws/Memoranda/2018/2018-3-23-PM-602-0159-Matter-of-S-Inc-Adopted-Decision-Package.pdf

The Administrative Appeals Office (AAO) hears appeals for over 50 different types of immigration case, approximately. AAO and USCIS are parts of the U.S. Department of Homeland Security (DHS). Instead of AAO, certain immigration cases are appealed to the U.S. Department of Justice (DOJ) such as the Board of Immigration Appeals (BIA).

Petitioners are eligible to file H-1B Cap Petitions for the Fiscal Year 2019 to be received by USCIS on April 2, 2018.

March 23, 2018

This article is intended for informational purposes only, and should not be relied on as legal advice or attorney-client relationship. By Aik Wan Kok, Lawyer USA Immigration Services, at Tiya; Tel: 703-772-822four & email to info at tiyaimmigration dot com; Direct dial from abroad: 001-703-7728224; https://www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; https://immigrationresource.net

We represent employers, companies, individuals, and families in U.S. Immigration & Nationality Law. Our clients are based nationwide in the U.S. and internationally. We focus on diverse immigration cases including, but are not limiting to: extraordinary ability; national interest waiver; PERM with U.S. Department of Labor; I-130 for sponsoring relatives and families; I-140 for employment green card; I-485 Adjustment Applications; I-765 work permit; I-131 for international travel and returning to the U.S; I-601 extreme hardship waiver relatives of U.S. citizen or green card holder; I-751 joint filing or waiver; N-400 Naturalization/Citizenship; N-648 Medical Waiver; I-212 waiver for deportation or removal order; J waiver; other waivers; H-1B professional worker/specialty occupation; H-2B temporary worker; L executive, manager and specialized knowledge professional transferring from overseas; E treaty investors/traders; B-1 business visitor to the U.S.; B-2 visitor to the U.S.; F-1 student coming to study in the U.S.; matters pertaining to consular processing with U.S. consulates and National Visa Centers; cases with USCIS; cases with U.S. Department of Labor; PERM audit; RFE Request for Evidence (RFE); NOID Notice of Intention to Deny (NOID), and others.

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Rising Demand on H-1B Visa Numbers is a Sign of Strong U.S. Economy

Tiyalaw — Sat, 30 Apr 2016 17:30:51 +0000

Rising Demand on H-1B Visa Numbers is a Sign of Strong U.S. Economy

A rising demand for H-1B workforce is a positive sign of a stronger U.S. economy.

The demand for visas numbers for H-1B Cap-Subject Petitions is showing a pattern of increase over the years. The H-1B Cap-Subject Petitions received by U.S. Citizenship and Immigration Services (USCIS) were around 236,000 in 2016; 233,000 in 2015; 172,500 in 2014; and 124,000 in 2013.

In 2012, H-1B visa quota was not met until June 2012 (i.e. visa numbers used up only in June 2012). However, in 2013 and for the first time since 2008, USCIS met its H-1B visa quota within the first few days of April 1, 2013. April 1 is the first day USCIS begins accepting H-1B Cap-Subject Petitions.

H-1B Annual Work Visa Cap

Each year on April 1, USCIS begins accepting H-1B Cap Petitions for the upcoming fiscal year (FY) with an October 1 employment start-date for the annual 65,000 government-mandated cap, and the 20,000 exemption for H-1B under the U.S. advanced degree.

Those under U.S. advanced degree not selected within the 20,000 visa numbers will be processed under random selection or lottery for the 65,000 limit. All H-1B Cap Petitions not selected in the lottery system will be returned with their filing fees. The filing fees for any H-1B Cap Petitions with duplicate filings will not be returned.

What is an H-1B?

H-1B petitions are temporary work visas for specialty occupations. They are for positions requiring theoretical or technical expertise in specialized fields for qualified foreign nationals to live and work in the U.S. Many H-1B foreign nationals have successfully gone on to apply for and obtain lawful permanent residence status (also known as, green card).

Foreign nationals with at least a bachelor’s degree or the equivalent (equivalent degree and/or work experience) may be sponsored for H-1B petitions. A broad range of positions may fall under H-1B specialty occupations. Each case depends on the position’s overall circumstances, necessitating complex legal analysis.

Some H-1Bs Are Not Subject to H-1B Cap or Quota

Not all H-1B petitions are subject to the annual visa cap or quota. It depends on the types of H-1B petition being filed, or the types of entity-sponsor. For examples, foreign nationals who already have approved H-1B petitions or H-1B status may still have H-1B petitions filed for them to extend their H-1B status, or to change or add H-1B employers. Certain employers are cap exempt.

Duration of H-1B

In general, H-1B petitions/work visas are approved for three years each time (up to a total of 6 years). Under certain circumstances, H-1B work visas can be extended beyond the 6-year maximum time limitation.

H-1Bs Not Selected or Filed When All H-1B Visa Numbers Are Used Up

Potential H-1B candidates who do not make it to the Fiscal Year 2017 H-1B visa quota (October 1, 2016 employment start-date) have the options to have their H-1B cap petitions submitted or resubmitted to reach USCIS on April 1, 2017 (with an October 1, 2017 employment start-date) for the 2018 Fiscal Year H-1B visa cap/quota. They can also consider other immigration options such as other nonimmigrant status, work permit, and self-petition green card filings, if eligible.

This article is intended for informational purposes only, and should not be relied on as legal advice or attorney-client relationship. By Aik Wan Kok, Lawyer USA Immigration Services, at Tiya; Tel: 703-772-8224 & koka at tiyalaw dot com; Direct dial from abroad: 001-703-772-8224; https://www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; https://immigrationresource.net

Need help with green card, work visas, work permit, sponsoring family, sponsoring employees, sponsoring relatives, hardship waivers, marriage waiver, and cases with USCIS, Department of Labor or immigration? We represent employers, companies, individuals, and families in U.S. Immigration & Nationality Law. Our clients are based in the U.S. and internationally. We represent diverse immigration cases in naturalization/citizenship, green card, work visas, waivers and other immigration matters. Some of our cases including, but are not limiting, extraordinary ability; national interest waiver; PERM with U.S. Department of Labor; I-130 for sponsoring relatives and families (child, spouse, brother, sister, stepchild); I-140 for employment; I-485 to adjust status; I-765 work permit/employment authorization; I-131 for international travel and returning to the U.S; I-601 extreme hardship waiver for spouse, parent, son and/or daughter or child of U.S. citizen or green card holder; I-751 joint filing or waiver; I-212 waiver for deportation or removal order; J waiver; H-1B professional worker/specialty occupation; H-2B temporary worker; L executive, manager and specialized knowledge professional transferring from overseas; B-1 business visitor to the U.S.; B-2 tourist visiting the U.S.; F-1 student coming to study in the U.S.; consular processing with U.S. consulates; consular processing via National Visa Centers; filing cases with USCIS; filing cases with U.S. Department of Labor; PERM audit; RFE Request for Evidence; NOID Notice of Intention to Deny; and Immigration Courts.

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FY2011 H-1B Visa Numbers are Almost Finished!

Tiyalaw — Wed, 26 Jan 2011 01:22:26 +0000

H-1B petitions are extremely useful for many skilled foreign nationals to live and work in the U.S. Even though H-1B petitions are temporary work visas, many H-1B foreign nationals have successfully moved forward in applying for and obtaining green card status.

Potential H-1B candidates who do not make it to the Fiscal Year 2011 H-1B visa quota (October 1, 2010 or later start-date) have the options to have their H-1B cap petitions submitted to the U.S. Citizenship and Immigration Services (USCIS) on or after April 1, 2011 (October 1, 2011 or later start-date) for the Fiscal Year 2012 H-1B visa quota.

As of January 21, 2011, the USCIS has received 62,800 H-1B petitions that are subject to the annual 65,000 visa cap. These H-1B petitions will count towards the Fiscal Year 2011 visa cap (FY2011).

The USCIS has already received over 20,000 of the first 20,000 H-1B petitions for FY2011 that are exempted from the 65,000 visa cap, under the advanced degree exemption which applies to an H-1B beneficiary who has successfully obtained a U.S. Master’s degree or higher. These extra petitions will now be counted towards the regular 65,000 visa cap where 62,800 of such visa numbers have already been exhausted.

These FY2011 H-1B work visas will have an employment start-date of October 1, 2010 or later.

Not all H-1B petitions are subject to the annual visa cap, depending on the types of H-1B petition being filed, and the types of entity-sponsor.

Normally, H-1B petitions/work visas are approved for a maximum of 6 years (3 years each time).

By Aik Wan Kok, Attorney at Law, at Tiya PLC; Tel: 703-772-8224
www.tiyaimmigration.com ; http://tiyalaw.blogspot.com ; www.immigrationresource.net

We represent employers, and individuals and their families in green card and work visa matters in U.S. immigration law.