Posts

No H-1B Visa Lottery Necessary for Institutes of Higher Education, Affiliated Non-Profits, and Government Agencies for Research

/in /by

By Jessabelle M. Koppelman, Esq. and Julie Oliver-Zhang, Esq.

If you have the right employer sponsor, you can apply for an H1b visa anytime of the year and have no need to win a spot in the H-1B lottery. Every year, USCIS sets aside 85,000 H-1B visas that are subject to the lottery process. But did you know that some organizations are exempt from the cap? Qualifying organizations do not need to undergo random selection to compete for limited H1b visas. Indeed, federal law allows certain organizations to forego the lottery process, specifically:

  1. Institutions of higher education;
  2. Non-profit organizations related to or affiliated with an institution of higher education;
  3. Non-profit research organizations; and
  4. Government research organizations.

See INA § 214(g)(5)(A)-(B).

Determining if your organization is exempt from the H-1B visa cap can be tricky. Let’s take a look at some of the fundamental characteristics of institutions of higher education and related or affiliated non-profits.

Institution of Higher Education

USCIS relies on the Higher Education Act of 1965’s definition of “institution of higher education.” Under the Act, key characteristics of a college university are:

  • Admits students with a certificate of graduation from a school that provides secondary education, or the equivalent;
  • Authorized in the State to provide an educational program beyond secondary education;
  • Provides an educational program that awards a bachelor’s degree or provides at least a two (2) year program that is acceptable towards a bachelor’s degree;
  • Is a public or other non-profit institution; and
  • Is accredited or pre-accredited.

Related to or Affiliated

The definition of an institute of higher education is clearly outlined, but how USCIS determines that a non-profit is “related to or affiliated” with such institutes is not as clear. To qualify for an H1b visa cap exemption, a non-profit petitioner can demonstrate that they are affiliated or related to an institution of higher education if they can prove at least one of the below prerequisites. Generally, that the non-profit is:

  • Associated through mutual ownership or control by the same board or federation;
  • Is operated by an institution of higher education; or
  • Is attached to an institution of higher education as a member, branch, cooperative, or subsidiary.

Non-profits need to provide proof that they qualify for this exemption. Some evidence that USCIS may consider includes but is not limited to, By-Laws and Articles of Incorporation, IRS 501(c)(3) Designation Letter, documentation listing the mutual Board of Directors members, and agreements between the non-profit and institute.

Oliver-Zhang Law’s immigration attorneys recognize that the H-1B visa process can be confusing. That’s why our professionals are committed to guiding you every step of the way. We even provide free immigration consultations for individuals and companies that want to learn more about H-1B visas.

Contact us today to inquire about our immigration services. Call our experienced H1B attorneys ready to provide you with the best services at (202) 643-1110 or email us at [email protected]. We look forward to working with you.

H-1B Visa Denial Rates Are at an All Time Low

/in , /by

By Jessabelle M. Koppelman, Esq.

During the Trump Administration, we witnessed H-1B visa denial rates skyrocket with the passage of restrictive immigration policies. For example, former President Trump implemented policy instructing USCIS officers to stop giving deference to previously approved petitions when reviewing H1b visa extensions. Fortunately, President Biden has rescinded this policy during his administration

As some Trump immigration policies phase out, USCIS has drastically reduced H1b visa denials. Forbes reported that for fiscal year (“FY”) 2021, the denial rate fell to 4% for new H1b visa petitions. This trend is great news for U.S. companies looking to temporarily employ foreign nationals as diversifying your work force can lead to greater results and new ideas. Let’s take a look at how these numbers changed:

From FY 2017 to FY 2020, the average denial rate for new H1b visa petitions was just over 17%.
For FY 2018, denial rates rose all the way up to 24%.

FISCAL YEARDENIAL RATE
202013%
201921%
201824%
201713%

These numbers are high compared to the Obama Administration’s initial H1b visa denial rates.

FISCAL YEARDENIAL RATE
201610%
20156%
20148%
20137%

The same pattern is also true for continuing employment petitions (extensions for previously approved visas) as the denial rate was only 2% for FY 2021 – much lower than previous years.

FISCAL YEARDENIAL RATE
20207%
201912%
201812%
20175%

We recently saw less interest in the temporary work program. For FY 2021, USCIS received 274,237 H1b visa registrations. This number rose to 308,613 for FY 2022. The global pandemic also greatly hindered employment-based immigration positions.

The Biden Administration is taking steps towards reforming the H1b visa program. On January 21, 2022, they announced that the U.S. Department of Homeland Security expanded the list of degrees included in the STEM field that qualify for the Optional Practical Training program. To read how this expansion positively impacts H1B visas, click here.  

With H-1B visa petition submissions returning to normal, it is imperative that your initial application is in good condition. Our experienced immigration lawyers are here to assist you with the H1b visa process and the best legal services with dedicated attorneys. Oliver-Zhang law offers free immigration consultations. To speak with one of our immigration attorneys, please email us at [email protected]  or call us at 202-643-1110. H1b account registration has already begun, so call us today!

H-1B Lottery (FY 2023) Account Creation Opens February 21, 2022 – Are You Ready? Contact Oliver-Zhang Law TODAY!

/in , /by

By Julie Oliver-Zhang, Esq. and Annjelika Slate

As we get further into 2022, the H-1B lottery opening day is steadily approaching. Mark your calendars for February 21, 2022 as to when you can begin creating an H-1B registration account. That is less than two weeks away! For those who meet specific requirements, H1B lottery will be the first step in the process of potentially living and working in the
United States. Below, we will discuss what USCIS means by “lottery” and what to expect as first steps.

The H-1B “lottery” was created as a random selection process to select cap-subject H1B petitions from a large pool of properly submitted electronic registrations. Each fiscal year, the United States federal government sets aside a certain number of new H-1B visas as a “cap” to the number of international employees that will be allowed to live and
work within the United States. Congressionally mandated cap is 65,000 H-1B visas each year (“regular cap”), while extra 20,000 are for those that hold master’s degrees or higher from a United States institution (“advance degree exemption”).

For further information on the H-1B visa lottery process, see: https://oliverzhanglaw.com/everything-you-need-to-know-about-h-1b-visas-in-2022/

On February 21st, the USCIS online account creation process begins. This means that all potential H-1B applicants will be able to go online and create a USCIS account to prepare for H-1B application registration on March 1st. In 2020, USCIS for the first time made the H-1B approval procedures more reasonable by implementing an Electronic-Registration process that only asks for the worker beneficiary’s basic information. Unlike previous years, where H1B petitioners had to file their entire petition before hearing back on whether the application is selected in the lottery, this new online registration process is much easier and saves applicants time and money. Petitioners are required to register online which includes a $10 fee for each beneficiary. If you are selected as a lottery pick, you will
then move on to submitting your actual H1-B petition. Here is a timeline of important dates that you should be on the lookout for:

We understand that preparing for H-1B applications can be stressful. That is why Oliver-Zhang Law is here for you. Our H-1B lawyers are experienced and ready to assist you with the best service throughout your H-1B application process. Please contact us today at [email protected], or 202-643-1110 for a FREE immigration attorney consultation. We are looking forward to assisting you.

The “Cap-Gap” Extension Explained

/in , /by

By Jessabelle M. Koppelman, Esq. & Julie T. Oliver-Zhang, Esq.


Who qualifies for the “Cap-Gap” extension, and how does it work?

Many F-1 students are concerned about being out of status during the period between the end of their Optional Practical Training (“OPT”) and when their approved H1b visa begins in October. The Cap-Gap extension provides a solution for F-1 students under an approved post-completion OPT program, or the STEM extension post-completion OPT program who have a sponsoring employer for the H1b visa. The Cap-Gap extension is available to F-1 students whose OPT period expires before October 1st and who have been offered an H1b visa for a position with a U.S. employer. The “Gap” refers to the period after your F-1 OPT, STEM OPT, or 60-day grace period expires and before you may start H1b employment. The 60-day grace period refers to the time you are permitted to stay in the U.S. or change visa status after your OPT status expires. It is important to know how your H1b visa petition impacts your ability to extend your stay in the U.S.

USCIS permits certain students with pending or approved Cap-subject H1b visa petitions to remain in F-1 status so they do not have to leave the United States during the cap-gap period. To qualify for this extension, you must satisfy the below requisites:

  • A U.S. company must timely file an H1b visa petition (I-129) with USCIS while the prospective beneficiary-student’s F-1 status is still valid or in their 60-day grace period. Please note that to qualify for the exemption, the employer must have first submitted Form I-129 and the form must be received before the expiration of the F-1 status or grace period.
  • The prospective H1b employment offer must be subject to the cap.
  • In the pending H1b visa petition (Form I-129), the employer must request a change of status to an H-1b.
  • The prospective employment must begin on October 1st.

The cap-gap extension automatically begins once the petitioner timely files a request to change the beneficiary’s status to H1b. If the H-1B visa petition is approved, then the student’s extension of status continues through September 30th. As the extension is automatic, there is no need to file an application or receive a new Employment Authorization Document. Although not required, an F-1 student may obtain an updated Form I-20 as proof of the extension of OPT employment authorization. The exemption allows an individual and their F-2 dependents to legally stay in the U.S. Importantly, however, F-1 students who entered the 60-day grace period are not authorized to work during the cap-gap extension.

Alternatively, if the H1b visa petition is denied, withdrawn, revoked, rejected, not selected, of if the change of status request is denied or withdrawn, then the extension of status is automatically terminated.

Working in the U.S. is a great way to gain valuable experience and opportunities. To find out if you are eligible for the cap-gap extension, please contact us today at [email protected], or 202-643-1110 for a free immigration consultation with one of our experienced H1b lawyers. At Oliver-Zhang Law, we are devoted to providing you with the best H-1b visa services.

When Should You Start Your H-1B Visa Application in 2022 for FY 2023

/in , /by

By Jessabelle M. Koppleman, Esq. & Julie T. Oliver-Zhang, Esq.

Common questions about the H1b visa process are: “When should I apply?” and “How long does the H-1B visa process take?” Each fiscal year, USCIS sets aside 85,000 new H1b visa availability in October. Although these visas are not effective until the fall, the application process begins much earlier. If you plan on filing an H1b petition in 2022 (FY 2023), you should be aware of the following timeline: 

FY 2023 H-1B Electronic Registration Process: Petitioners must first register online using the USCIS Electronic Registration Process. In this first step, employers seeking to employ prospective H-1B worker(s) subject to the cap must complete a registration application that requires only basic information about the prospective petitioner and worker(s). You can begin creating an H-1B registrant account on February 21, 2022 at noon Eastern Time. The registration period officially opens in March for a minimum of 14 calendar days. This year, the registration period opens on March 1, 2022 and closes on March 18, 2022 at noon Eastern Time. 

Lottery Selection: USCIS will then conduct a random selection among the properly submitted electronic registrations. Generally, USCIS will notify selected registrants by March 31st. If selected, this means that you were randomly chosen in the “lottery” draw and are invited to submit your H1b petition. USCIS generally conducts two lottery draws and may include additional draws as needed. For Fiscal Year 2022, USCIS received 308,613 registrations and initially selected 87,500 registrants. However, only 59,783 H1b applications were approved by USCIS, or 68%. The 32% of H-1B applications that were rejected as deficient freed up H1b visa availability for a second round.   In July of 2021, USCIS conducted a second draw and selected 27,717 registrants. 

For further explanation of the H-1B visa lottery see:  https://oliverzhanglaw.com/everything-you-need-to-know-about-h-1b-visas-in-2022/  

Petition: Once selected in the lottery, you may file your H1b visa petition in April. The initial filing window for a cap-subject H-1B is normally April 1st to June 30th (a 90 day filing period). USCIS may set additional filing periods when they decide to conduct additional selections.

Approval Time of the H-1B Petition: Typically, USCIS will process a petition within 4-6 months. Alternatively, Premium Processing is available for H-1B petitions at an additional charge of $2,500. Premium Processing provides expedited processing of the petition within 15 calendar days. Please note, Premium Processing does not guarantee approval of a petition. 

Effective Date: Finally, if USCIS approves the H1b visa petition and change of status request, the beneficiary-worker may start employment, at the earliest, on October 1st. 

Preparing your H1b visa petition can be complex, that’s why Oliver-Zhang Law is here for you every step of the way. We have years of experience and proven track record of successfully filing H1b visa applications and we are committed to giving you the best chance of success. 


Contact one of our dedicated H1b lawyers today at [email protected], or 202-643-1110 to inquire about our H1b visa services. Oliver-Zhang Law provides free immigration consultations. We service employers and individuals in the Virginia, Maryland, District of Columbia, and Washington state areas, as well as nationwide.

Everything You Need to Know About H-1B Visas in 2022 for FY 2023

/2 Comments/in , /by

H1b visa season is quickly approaching! Here are some key things you need to know about the H1b visa program.

News Update: Oliver-Zhang Law is now offering FREE service for the electronic registration process (typically $450 dollars) if you retain us for your H1-B application. If you are not selected in the lottery, your attorney fee will be returned in full.


H1b visas are temporary work permits that allow individuals with special skills and education to work in the United States for up to three years; however, extensions may be granted. The minimum requirements are a bachelor’s degree and specialized skills. There are three H1b visa designations: Specialty Occupations (jobs with specialized responsibilities requiring expert knowledge and a bachelor’s degree or higher in a related field), DOD Research and Development Project Workers, and Fashion Models. An eligible employer (“petitioner”) must sponsor the prospective worker (“beneficiary.”). One of the benefits of this program is that spouses and children of H1b visa holders may accompany the beneficiary.


The Cap:


A unique aspect of this visa program is the “Cap.” Each fiscal year, the federal government sets
aside 65,000 new H1b visas for eligible candidates. An additional 20,000 visas are reserved for
individuals with a master’s degree or higher from a U.S. institution. USCIS also created a cap
exemption for individuals employed by an institute of higher education or an affiliated nonprofit entity; a nonprofit research organization; or a government research organization.


Registration and Lottery:


Since the government only issues a limited number of H1b visas, candidates are subject to the
visa “lottery.” This lottery is akin to a raffle that is essentially broken down into two phases: Advanced-degree candidates and remaining registrants. In 2020, USCIS streamlined H1b procedures by implementing an Electronic Pre-Registration process. Under this new system, petitioners must first register online and pay the $10 fee for each beneficiary. Next, USCIS randomly selects participants from the online registries.

One of the greatest advantages to this new system is that only basic information about the
prospective petitioner and worker is needed. Prior to 2020, petitioners were required to submit
complete petitions before the lottery draw. Now, petitions are submitted after the lottery
selection, saving participants time and money.


H1b Application:

Putting together your petition packet is a crucial endeavor. If you are selected to participate in the H1b program, you will need to complete these three general steps:


1. For specialty occupation and fashion models, the petitioner must submit and receive a Labor Condition Application certified by the Department of Labor.

2. The petitioner must complete and submit Form I-129, Petition for a Nonimmigrant Worker.


3. For beneficiaries outside the U.S., you will need to apply for a visa and/or admission. The beneficiary may apply with the U.S. Department of State at a U.S. Embassy or consulate abroad. Prospective H1b workers, regardless of whether a visa is required, must apply to U.S. Customs and Border Protection for admission to the U.S. under the H1b
classification.

There are many benefits to the H1b visa program. If you have questions about H1b visa procedures, contact one of our experienced immigration lawyers today for a free immigration consultation. At Oliver-Zhang Law, our employment immigrations lawyers are committed to providing you with quality immigration help.


References:


https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-
occupations-and-fashion-models/h-1b-electronic-registration-process
https://www.uscis.gov/working-in-the-united-states/h-1b-specialty-occupations
https://www.uscis.gov/working-in-the-united-states/temporary-workers/h-1b-specialty-
occupations-and-fashion-models/h-1b-cap-season
https://flag.dol.gov/programs/lca
https://www.uscis.gov/sites/default/files/document/forms/i-129.pdf