News

USCIS expanded Premium Processing to include E-3 Petitioners filing I-129, Petition for a Nonimmigrant Worker, requesting a change or extension of status to E-3 classification. The E-3 classification is for Australian nationals who if outside the United States may apply through the Department of State. Or, if the Australian national is already inside the United States, by filing form I-129 with USCIS.

Overwhelmingly, the U.S. Citizenship Act of 2021 seeks to make the business-immigration landscape easier as it includes many beneficial changes. For instance, the bill includes a program in which foreign nationals with doctorate degrees in STEM fields can obtain green cards without being subject to a numerical limitation. Further, the bill seeks to increase the number of available employment-based visas each year, and several other provisions seek to reduce the current green card backlogs. Importantly, the bill looks to codify employment authorization for H-4 holders, meaning the future of H-4 EADs would no longer be uncertain. Finally, the bill contains provisions that seek to prevent certain children of H-1B workers from aging out during the green card process. But there are other which would not be beneficial to H-1B visas.

This is an update from USCIS News: USCIS has received a sufficient number of petitions needed to reach the congressionally mandated 65,000 H-1B visa regular cap and the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2021.

A recent holding from the United States Court of Appeals for the First Circuit has confirmed that a warrant is not required for searches of cellphones and other communication devices at the U.S. border or any U.S. Port of Entry. The court found that these devices can be searched for contraband without probable cause or warrant. ILBSG reminds its clients that the search of cell phones, laptops, and other electronics is very common at the U.S. Ports of Entry. This capability is only reinforced through this court ruling.

In light of recent USCIS announcements, we can now report on what to expect for FY2021.

First, the H-1B Cap will remain a lottery-based system this year, as USCIS will not have time to implement the wage-based system until next year at the earliest. Next, the registration and selection dates have now been announced, with a registration period from March 9 – 25, 2021. Initial selections will be announced on March 31, 2021, with a filing period from April 1 – June 30, 2021 to file the corresponding H-1B petitions.

As we prepare for the upcoming FY 2022 H-1B Cap, it is worth revisiting what we learned last year by examining the timing, trends, and key takeaways from last year’s H-1B Cap.

USCIS has officially announced the FY 2022 H-1B Cap registrations dates. The H-1B registration period will be from March 9 – March 25. Following the completion of the registration process, the H-1B random lottery selection will take place on March 31, 2021. If selected, H-1B petitioners will have 90 days to file the H-1B petition. For those selected in the first round of selections, the anticipated filing period will be April 1 – June 30.

On Monday, USCIS plans to publish notice in the Federal Register formally postponing the H-1B Final Rule modifying the H-1B Cap to a wage-based system until December 31, 2021. As such, the upcoming H-1B Cap will be conducted as usual, using a random lottery system to select candidates for the 85,000 available visas.  This is great news for H-1B employers, as a wage-based system prioritizing the highest wages would disproportionally affect small businesses, particularly during a global pandemic.

As ILBSG has reported over the last several days, the Biden Administration issued an Executive Order formally recommending that all government agencies consider postponing any rules which have been published in the Federal Register but are not yet in effect for at least 60 days. As ILBSG has emphasized, this is merely a recommendation from the White House and does not have any automatic or binding effect on the agencies. In order for there to be a 60-day postponement of any rule, the relevant government agency must take official action and publish the postponement in the Federal Register.

An influential union representing tech workers has plans to appeal a federal judge's decision to uphold the optional practical training (OPT) program. The OPT program allows student-visa holders to hold apprenticeships upon graduation from accredited schools.