H1B Visa

The number of available H1B visas in a fiscal year is capped at 65,000. However, H1B petition beneficiaries with employment offers from certain “institution(s) of higher education or affiliated nonprofit entity(s),” or from “nonprofit research organization(s) or “governmental research organization(s)” are exempt from the annual cap on H1B visas. Furthermore, under certain circumstances, an organization that would not qualify as an employer covered under this rule may nevertheless be eligible if it is seeking the H1B visa for an employee whose place of work will be at a qualifying institution or organization.

The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) added to the Immigration and Nationality Act (INA) provisions for what is called “H1B portability.” H1B portability allows certain individuals in the United States on H1B status to change H1B employers. The United States Citizenship and Immigration Services (USCIS) created agency guidance over the years to adjudicate H1B portability petitions. On January 17, 2017, new regulations took effect which finally codified USCIS practices regarding many AC21 provisions, including H1B portability. In this article, we will examine the statutes, agency guidance, and new regulations for an up-to-date look at H1B portability.

Most adjustment of status applicants are required to obtain a grant of advance parole prior to departing the United States in order for the adjustment of status application to not be abandoned. However, in recognition of the fact that both the H-1 (H1) and L-1 (L1A and L1B) nonimmigrant visa categories recognize dual intent, in that it is permissible to apply for adjustment of status and remain in the United States on lawful H or L status, the rules regarding travel and H1 and L1 status are unique.

On May 26, 2015, The United States Citizenship and Immigration Services (USCIS) will be extending employment eligibility for certain nonimmigrants in valid H-4 status. H-4 Visas are issued to dependent spouses of H-1B Nonimmigrants. This extension will allow eligible dependent spouses in valid H-4 status to receive employment authorization. This change comes as part of President Obama's immigration-based executive actions that were proposed back in November of 2014.

On August 9, 2017, the United States Citizenship and Immigration Services issued a Policy Memorandum titled “Definition of ‘Affiliate’ or “Subsidiary’ for Purposes of Determining the H-1B ACWIA Fee” (“ACWIA fee memo”). The USCIS issued the ACWIA fee memo to provide agency guidance on the proper definitions of “affiliate” and “subsidiary” under section 214(c)(9)(B) for purpose of determining the appropriate H1B ACWIA fee. Ultimately, the USCIS decided to adopt existing definitions of the terms from regulations regarding L1 visa petitions. In this article, we will examine the guidance in the ACWIA fee memo on determining the appropriate H1B ACWIA fee.

On April 3, 2017, the Department of Justice (DOJ) issued a news release titled “Justice Department Cautions Employers Seeking H-1B Visas Not to Discriminate Against U.S. Workers” As the title of the news release suggests, the DOJ “cautioned employers petitioning for H-1B visas not to discriminate against U.S. workers.” In this article, we will examine the DOJ's news release.

On April 3, 2017, the USCIS announced several initiatives designed to combat H1B fraud and abuse. In this article, we will examine the initiatives and discuss what they mean for H1B employers and workers going forward.

On March 31, 2017, the United States Citizenship and Immigration Services (USCIS) released a Policy Memorandum titled “Recission of the December 22, 2000 ‘Guidance memo on H1B computer related positions.’” As the title suggests, the new memorandum supersedes and rescinds the December 22, 2000 memorandum issued by Terry Way to employees of the Nebraska Service Center. The new memo makes clear that an H1B petitioner for a computer programmer position has the burden of establishing that the petition being offered is a “specialty occupation” petition in accord with the H1B regulations. Furthermore, it offers guidance regarding the fact that not all positions for computer programmers meet this standard.

On May 20, 2009, the Chief of Service Center Operations at the United States Citizenship and Immigration Services (USCIS) – Barbara Q. Velarde – issued a Policy Memorandum titled “Requirements for H-1B Beneficiaries Seeking to Practice in a Health Care Occupation” (“Velarde Memo”). The Memorandum deals with H1B licensure issues for petitions filed on behalf of beneficiaries seeking employment in a healthcare specialty occupation. In this article, we will examine the Velarde Memo and what it means for H1B petitions for employment in a health care specialty occupation.

The DHS amended 8 C.F.R. 214.2(h)(4)(v)(C), a regulation that details when H1B status may be granted to an individual who is unable to obtain a required professional license. The final rule explains that the amendments are meant to bring the DHS regulations in line with what was already DHS policy, while expanding on existing policy in certain cases. In this article, we will examine the amended provisions regarding H1B licensing exemptions and what they mean going forward.