WASHINGTON—U.S. Citizenship and Immigration Services today announced that it has completed a successful pilot testing phase and is implementing the registration process in the next H-1B lottery. Employers seeking to file H-1B cap-subject petitions for the fiscal year 2021 cap, including those eligible for the advanced degree exemption, must first electronically register and pay the associated $10 H-1B registration fee.

The electronic registration process will dramatically streamline processing by reducing paperwork and data exchange, and will provide an overall cost savings to petitioning employers.

Under this new process, employers seeking H-1B workers subject to the cap, or their authorized representatives, will complete a registration process that requires only basic information about their company and each requested worker. USCIS will open an initial registration period from March 1 through March 20, 2020. The H-1B random selection process, if needed, will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions.

Historically, employers filed their full, and often voluminous, H-1B cap-subject petitions with USCIS, after which USCIS would select eligible petitions through a random selection process. This process resulted in unnecessary paperwork and incurred mailing costs for both petitioners and the agency.

“By streamlining the H-1B cap selection process with a new electronic registration system, USCIS is creating cost savings and efficiencies for petitioners and the agency, as only those selected will now be required to submit a full petition,” said USCIS Deputy Director Mark Koumans. “The agency completed a successful pilot testing phase, which included sessions with industry representatives, and implementation of the registration system will further the goal of modernizing USCIS from a paper-based to an online-filing agency.” 

USCIS will post step-by-step instructions informing registrants how to complete the registration process on its website along with key dates and timelines as the initial registration period nears. USCIS will also conduct public engagements and other outreach activities to ensure registrants and interested parties are familiar with the new registration system. The agency may determine it is necessary to continue accepting registrations, or open an additional registration period, if it does not receive enough registrations and subsequent petitions projected to reach the numerical allocations.

DHS formally created the H-1B registration requirement in the final rule, Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens (PDF), published on Jan. 31, and effective on April 1, 2019. DHS intends to publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration system and provide additional details on the process.

On Nov. 8, 2019, DHS published a final rule establishing a $10 H-1B registration fee. The registration fee final rule is effective on Dec. 9, 2019, and will apply to registrations submitted during the initial and future registration periods.

USCIS Issues Guidance Memorandum on Establishing the "Employee-Employer Relationship" in H-1B Petitions.

The memorandum clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. The FAQ includes What factors does USCIS consider when evaluating the employer-employee relationship? What types of evidence can I provide to demonstrate that I have a valid employer-employee relationship with the beneficiary? What if I cannot submit the evidence listed in the memorandum?

1. Guidance Memo(PDF)

2. New Visa Policy helps high-skill immigrants to start and grow companies and create jobs

3. USCIS Director's Blog on New Visa Policy

4. Frequently Asked Questions:

Q:  Does this memorandum change any of the requirements to establish eligibility for an H-1B petition?

A:  No.  This memorandum does not change any of the requirements for an H-1B petition.  The H-1B regulations currently require that a United States employer establish that it has an employer-employee relations with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee.  In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:

establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and
filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.
Q:  What factors does USCIS consider when evaluating the employer-employee relationship?

A:  As stated in the memorandum, USCIS will evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job.  Please see the memorandum in the links in the upper right hand of this page for a list of factors that USCIS will review when determining whether the petitioner has the right to control the beneficiary.  Please note that no one factor is decisive and adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.

Q:  What types of evidence can I provide to demonstrate that I have a valid employer-employee relationship with the beneficiary?

A:  You may demonstrate that you have a valid employer-employee relationship with the beneficiary by submitting the types of evidence outlined in the memorandum or similar probative types of evidence.

Q:  What if I cannot submit the evidence listed in the memorandum?

A:  The documents listed in the memorandum are only examples of evidence that establish the petitioner’s right to control the beneficiary’s employment.  Unless a document is required by the regulations, i.e. an itinerary, you may provide similarly probative documents.  You may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists.  You should explain how the documents you are providing establish the relationship.  Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.

Q:  What if I receive or have received an RFE requesting that I submit a particular type of evidence and I do not have the exact type of document listed in the RFE?

A:  If the type of evidence requested in the RFE is not a document that is required by regulations, you may submit other similar probative evidence that addresses the issue(s) raised in the RFE.  You should explain how the documents you are providing address the deficiency(ies) raised in the RFE.  Adjudicators will review and weigh all evidence based on the totality of the circumstances.  Please note that you cannot submit similar evidence in place of documents required by regulation.

Q:  Will my petition be denied if I cannot establish that the qualifying employer-employee relationship will exist?

A:  If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE).   Your petition will be denied if you do not provide sufficiently probative evidence that the qualifying employer-employee relationship will exist for any time period.

Q:  What if I can only establish that the qualifying employer-employee relationship will exist for a portion of the requested validity period?

A:  If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE).   Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period (as long as all other requirements are met), however, USCIS will limit a petition’s validity to the time period of qualifying employment established by the evidence.

Q: What happens if I am filing a petition requesting a “Continuation of previously approved employment without change” or “Change in previously approved employment” and an extension of stay for the beneficiary in H-1B classification, but I did not maintain a valid employer-employee relationship with the beneficiary during the validity of the previous petition?

A:  Your extension petition will be denied if USCIS determines that you did not maintain a valid employer-employee relationship with the beneficiary throughout the validity period of the previous petition.  The only exception is if there is a compelling reason to approve the new petition (e.g. you are able to demonstrate that you did not meet all of the terms and conditions through no fault of your own).  Such exceptions would be limited and made on a case-by-case basis.

Q:  What if I am filing a petition requesting a “Change of Employer” and an extension of stay for the beneficiary’s H-1B classification?  Would my petition be adjudicated under the section of the memorandum that deals with extension petitions?

A:  No.  The section of the memorandum that covers extension petitions applies solely to petitions filed by the same employer to extend H-1B status without a material change in the original terms of employment.  All other petitions will be adjudicated in accordance with the section of the memorandum that covers initial petitions.

Q: I am a petitioner who will be employing the beneficiary to perform services in more than one work location.  Do I need to submit an itinerary in support of my petition?

A:  Yes.  You will need to submit a complete itinerary of services or engagements, as described in the memo, in order to comply with 8 CFR 214.2(h)(2)(i)(B) if you are employing the beneficiary to perform services in more than one work location.  Furthermore, you must comply with Department of Labor regulations requiring that you file an LCA specific to each work location for the beneficiary.

Q: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioner, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid employer-employee relationship?

A.   Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition.  However, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

Q:  What happens if I do not submit evidence of the employer-employee relationship with my initial petition?

A:  If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you will be given an opportunity to correct the deficiency in response to a request for evidence (RFE).  However, failure to provide this information with the initial submission will delay processing of your petition.

2011 will become another good year for H1B Visa Job Hunters! 

USCIS started accepting H1B petitions subject to the fiscal year 2012 cap on April 1, 2011. As of April 7, they received approximately 5,900 H1B Visa petitions counting toward the 65,000 cap, and approximately 4,500 petitions toward the 20,000 cap exemption for individuals with advanced degrees. 

These two numbers were much lower than the previous year. During the first week of April 2010, USCIS received approximately 13,500 petitions counting toward the 65,000 cap, and approximately 5,600 petitions toward the 20,000 cap exemption. 

Several days later, Department of Labor reported that there were 3.1 million job openings in February, up from 352,000 from January and 570,000 from year-earlier levels. It was the largest number of available positions since September 2008. 

Weather you can get a H1B Visa job depends on the availbility of H1B Visa and the number of job openings in US market. So above numbers tell us 2011 will be another good year for visa job hunters! 

If you still want to work and live in United Sates, we encourage you join us on social network and visit myvisajobs.com for more information: 

1. Connect to MyVisajobs CEO on Linkedin
2. Join Us on Facebook
3. 2011 H1B Visa Employer List by Occupation and Location
4. Follow the latest H1B Visa Cap Usage
5. Complete your career profile and upload your resume

Washington April 1, 2011: USCIS released Q&A on Extension of OPT and F-1 Status under the H-1B Cap-Gap Regulations

Introduction

These Questions & Answers address the automatic extension of F-1 student status in the United States for certain students with pending or approved H-1B petitions (indicating a request for change of status from F-1 to H-1B) for an employment start date of October 1, 2011 under the Fiscal Year (FY) 2012 H-1B cap.

Questions & Answers

Q1. What is “Cap-Gap”?
A1. Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the period of time when an F-1 student’s status and work authorization would otherwise expire through the start date of their approved H-1B employment period.  This is referred to as filling the “cap-gap,” meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur if F-1 status is not extended for qualifying students. 

Q2. How does “Cap-Gap” Occur?
A2. An employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training.  As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1.  If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1.  Consequently, F-1 students who do not qualify for a cap-gap extension, and whose periods of authorized stay expire before October 1, are required to leave the United States, apply for an H-1B visa at a consular post abroad, and then seek readmission to the United States in H-1B status, for the dates reflected on the approved H-1B petition.

Q3. Which petitions and beneficiaries qualify for a cap-gap extension?  
A3. H-1B petitions that are timely filed, on behalf of an eligible F-1 student, that request a change of status to H-1B on October 1 qualify for a cap-gap extension. 

Note: Although the first business day of October 2011 is Monday, October 3, eligible F-1 students must make sure to request Saturday, October 1, as their start date in order to qualify for cap-gap extension.
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Timely filed means that the H-1B petition (indicating change of status rather than consular processing) was filed during the H-1B acceptance period which begins April 1, while the student's authorized F-1 duration of status (D/S) admission was still in effect (including any period of time during the academic course of study, any authorized periods of post-completion Optional Practical Training (OPT), and the 60-day departure preparation period, commonly known as the “grace period”).

Once a timely filing has been made, requesting a change of status to H-1B on October 1, the automatic cap-gap extension will begin and will continue until the H-1B petition adjudication process has been completed.  If the student’s H-1B petition is selected and approved, the student’s extension will continue through September 30 unless the petition is denied, withdrawn, or revoked.  If the student’s H-1B petition is not selected, the student will have the standard 60-day grace period from the date of the rejection notice or their program end date, whichever is later, to prepare for and depart the United States. 

Students are strongly encouraged to stay in close communication with their petitioning employer during the cap-gap extension period for status updates on the H-1B petition processing. 

Q4. How does a student covered under the cap-gap extension obtain proof of continuing status? 
A4. The student should go to their Designated School Official (DSO) with evidence of a timely filed H-1B petition (indicating a request for change of status rather than for consular processing), such as a copy of the petition and a FedEx, UPS, or USPS Express/certified mail receipt.  The student’s DSO will issue a preliminary cap-gap I-20 showing an extension until June 1. 

If the H-1B petition is selected for adjudication, the student should return to his or her DSO with a copy of the petitioning employer’s Form I-797, Notice of Action, with a valid receipt number, indicating that the petition was filed and accepted.  The student’s DSO will issue a new cap-gap I-20 indicating the continued extension of F-1 status.  

Q5. Is a student who becomes eligible for an automatic cap-gap extension of status and employment authorization, but whose H-1B petition is subsequently rejected, denied or revoked, still allowed the 60-day grace period?
A5. If USCIS denies, rejects, or revokes an H-1B petition filed on behalf of an F-1 student covered by the automatic cap-gap extension of status, the student will have the standard 60-day grace period (from the date of the notification of the denial, rejection, or revocation of the petition) before he or she is required to depart the United States.

For denied cases, it should be noted that the 60-day grace period does not apply to an F-1 student whose accompanying change of status request is denied due to the discovery of a status violation.  The student in this situation is not eligible for the automatic cap-gap extension of status or the 60-day grace period.  Similarly, the 60-day grace period and automatic cap-gap extension of status would not apply to the case of a student whose petition was revoked based on a finding of fraud or misrepresentation discovered following approval.  In both of these instances, the student would be required to leave the United States immediately.

Q6. May students travel outside the United States during a cap-gap extension period and return in F-1 status?
A6. No. A student granted a cap-gap extension who elects to travel outside the United States during the cap-gap extension period, will not be able to return in F-1 status.  The student will need to apply for an H-1B visa at a consular post abroad prior to returning.  As the H-1B petition is for an October 1 start date, the student should be prepared to adjust his or her travel plans, accordingly.

Q7. What if a student’s post-completion OPT has expired and the student is in a valid grace period when an H-1B cap-subject petition is filed on their behalf?  It appears that F-1 status would be extended, but would OPT also be extended?
A7. That is correct.  F-1 students who have entered the 60-day grace period are not employment-authorized.  Consequently, if an H-1B cap-subject petition is filed on the behalf of a student who has entered the 60-day grace period, the student will receive the automatic cap-gap extension of his or her F-1 status, but will not become employment-authorized (since the student was not employment-authorized at the time H-1 petition was filed, there is no employment authorization to be extended). 

Q8. Do the limits on unemployment time apply to students with a cap-gap extension?
A8:  Yes.  The 90-day limitation on unemployment during the initial post-completion OPT authorization continues during the cap-gap extension.

Q9. What is a STEM OPT extension?
A9. F-1 students who receive science, technology, engineering, and mathematics (STEM) degrees included on the STEM Designated Degree Program List, are employed by employers enrolled in E-Verify, and who have received an initial grant of post-completion OPT employment authorization related to such a degree, may apply for a 17-month extension of such authorization.  F-1 students may obtain additional information about STEM OPT extensions on the Student and Exchange Visitor Program website at www.ice.gov/sevis.

Q10. May a student eligible for a cap-gap extension of post-completion OPT employment authorization and F-1 status apply for a STEM OPT extension while he or she is in the cap-gap extension period?
A10. Yes.  However, such application may not be made once the cap-gap extension period is terminated (e.g., if the H-1 petition is rejected, denied, or revoked), and the student has entered the 60-day departure preparation period.

Q11. In recent years, employers have been able to file H-1B cap-subject petitions after April 1, and have not always requested an October 1 start date.  However, some students’ OPT end dates were nevertheless shortened to September 30, even though their H-1B employment would not begin until a later date.  What should the student do to correct this?
A11. The student should contact their DSO.  The DSO may request a data fix in SEVIS by contacting the SEVIS helpdesk. 

Q12. If the student finds a new H-1B job, can he or she continue working with his/her approved EAD while the data fix in SEVIS is pending?
A12. Yes, if the (former) H-1B employer timely withdrew the H-1B petition and the following conditions are true:

• The student finds employment appropriate to his or her OPT
• The period of OPT is unexpired; and
• The DSO has requested a data fix in SEVIS

Note: If the student had to file Form I-539 to request reinstatement to F-1 student status, the student may not work or attend classes until the reinstatement is approved.

Q13. If the student has an approved H-1B petition and change of status, but is laid off/terminated by the H-1B employer before the effective date, and the student has an unexpired EAD issued for post-completion OPT, can the student retrieve any unused OPT?
A13. Yes, but only if USCIS receives the withdrawal request from the petitioner before the H-1B change of status effective date.  Once the petition has been revoked, the student must provide their DSO with a copy of the USCIS acknowledgement of withdrawal (i.e., the notice of revocation). The DSO may then request a data fix in SEVIS by contacting the SEVIS helpdesk.

If USCIS does not receive the withdrawal request prior to the H-1B petition change of status effective date, then the student will need to file a Form I-539 to request reinstatement and wait until the reinstatement request is approved, before resuming employment.

Q14. Can the student work past October 1 on their OPT (their EAD card will still show the original end date) if the request to change the end date back is pending?
A14. If the H-1B revocation occurs before October 1, the student may continue working while the data fix remains pending, because the student will still be in valid F-1 status.

If the H-1B revocation occurs on or after October 1, the student will need to apply for reinstatement and wait until the reinstatement request is approved before resuming employment.

Q15. Are students in valid F-1 status while the request to change the OPT end date is pending?
A15. If the H-1B revocation occurs before the H-1B change of status effective date, the student is still deemed to be in F-1 status while the data fix is pending.

If the H-1B revocation occurs after the H-1B change of status effective date, the student will not be in valid F-1 status and will therefore either need to apply for reinstatement or depart the United States.

United States Citizenship and Immigration Services(USCIS) announced on July 29, 2010 that as of July 23, 2010, it has received approximately 26,000 H-1B petitions counting toward the 65,000 cap (an increase of only 700 over the week), 11,300 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 300 over the week).

FY 2011 H-1B Cap Count As of July 23, 2010

Cap Eligible Petitions: This is the number of petitions that USCIS has accepted for this particular type of cap. It includes cases that have been approved or are still pending. It does not include petitions that have been denied.

Petition Target: This is the number of petitions that USCIS projects it will need for the cap to be met.

Cap Amounts: The current annual cap on the H-1B category is 65,000. Not all H-1B nonimmigrants are subject to this annual cap. Please note that up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year.

USCIS released following H2B Visa Count on July 27, 2010:

¹ Refers to the estimated numbers of beneficiary applications needed to reach a cap, with an allowance for withdrawals, denials and revocations.  This number will always be higher than the actual cap.
² As noted, if the cap is not reached for the 1st half of the fiscal year, those numbers will be made available for use during the 2nd half of the fiscal year.  In some fiscal years, therefore, depending on demand for H-2B workers, more than 33,000 cap-subject persons may be granted H-2B status during the 2nd half of the fiscal year.

The H-2B Program

The H-2B non-agricultural temporary worker program allows U.S. employers to bring foreign nationals to the United States to fill temporary non-agricultural jobs.
For more information about the H-2B program, see the link to the left under “H-2B Temporary Non-Agricultural Workers.”

What is the H-2B Cap?

There is a statutory numerical limit, or “cap,” on the total number aliens who may be issued a visa or otherwise provided H-2B status (including through a change of status) during a fiscal year.   Currently, the H-2B cap set by Congress is 66,000 per fiscal year, with 33,000 to be allocated for employment beginning in the 1st half of the fiscal year (October 1 - March 31) and 33,000 to be allocated for employment beginning in the 2nd half of the fiscal year (April 1 - September 30). Any unused numbers from the first half of the fiscal year will be made available for use by employers seeking to hire H-2B workers during the second half of the fiscal year.  There is no “carry over” of unused H-2B numbers from one fiscal year to the next.

Persons who are exempt from the H-2B cap

Generally, an H-2B worker who extends his/her stay in H-2B status will not be counted again against the H-2B cap.  Similarly, the spouse and children of H-2B workers classified as H-4 nonimmigrants are not counted against this cap.   Additionally petitions for the following types of workers are exempt the H-2B cap

• Fish roe processors, fish roe technicians and/or supervisors of fish roe processing
• From November 28, 2009 until December 31, 2014, workers performing labor or services in the Commonwealth of Northern Mariana Islands (CNMI) and/or Guam.

Once the H-2B cap is reached, USCIS may only accept petitions for H-2B workers who are exempt from the H-2B cap.

U.S. Citizenship and Immigration Services (USCIS) has announced on July 13 that, as of July 9, 2010, it has received approximately 24,800 H-1B petitions counting toward the 65,000 cap (an increase of only 600 over the week), 10,600 H-1B visas filed subject to the U.S. Masters cap which has 20,000 limit (an increase of only 200 over the week).

Background:

The number of new H-1Bs issued each year in the United States is subject to an annual congressionally-mandated quota. Each H-1B quota applies to a particular Financial Year which begins on October 1. Applications for the upcoming Financial Year are accepted beginning on the preceding April 1 (or the first working day after that date).

Those beneficiaries not subject to the annual quota are those who currently hold H-1B status or have held H-1B status at some point in the past six years and have not been outside the United States for more than 365 consecutive days. It has generally been set at 65,000 visas per year, with some exceptions for workers at exempt organizations like universities and colleges (note: contrary to popular belief, non-profit organizations are not automatically exempt, but may be so if affiliated with a university or college). In 2000, Congress permanently exempted H-1B visas going to Universities and Government Research Laboratories from the quota.

Up to 6,800 visas may be set aside from the cap of 65,000 during each fiscal year for the H-1B1 program under the terms of the legislation implementing the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B use for the next fiscal year. 

Laws also exempt up to 20,000 foreign nationals holding a master’s or higher degree from U.S. universities from the cap on H-1B visas.