Category Archives: H-1B petitions

New Life for H1-B Petitions: Market Research Analyst Ruling a Good Sign for H-1B Petitioners

Contributed by Jacqueline Lentini McCullough, November 17, 2021

Immigration Law books with a judges gavel on desk in the library. Law education ,law books concept.

In December 2018, I got an unpleasant surprise: My first – and only – H-1B petition denial in my over 20+ years of practicing immigration law.

The petition was on behalf of an operations research analyst. I had done the same petition for other operations research analysts at this company. USCIS had approved them all, some all the way to green cards.

In this case I prepped the client, submitted a thorough petition, and responded to all requests for evidence. Unfortunately, this unpleasant surprise was not a shock. USCIS’s scrutiny had intensified and as many thought it was overstepping its bounds, creating a downward trend on approvals.

USCIS Scrutiny Oversteps Bounds

H-1B visas pertain to specialty occupations, jobs that by definition require a bachelor’s degree. When assessing an H-1B petition, USCIS consults one of two sources to check the job requirements. The first, and most common, is the Occupation Outlook Handbook (OOH). The second is O*Net.

Job descriptions in the OOH describe bachelor’s degree requirements in various ways. It will say a job “typically requires a bachelor’s degree” or “normally requires a bachelor’s degree” or “a bachelor’s degree may be required.” Until recent years, those descriptions sufficed to qualify a position as H-1B eligible. The wording of the job descriptions was understood to reflect the reality that employers look for candidates with bachelor’s degrees for those positions.

During the past administration, however, USCIS resorted to a stricter interpretation of those statements. Seizing on the notion that qualifying words like “normally,” “typically,” and “may be” signify it is not always the case. Based on this interpretation USCIS began denying petitions for positions it had approved in the past.

USCIS Unlawful Denial Challenged

In particular, one position that got caught in USCIS’s crosshairs was market research analyst. USCIS was arbitrarily denying H-1B market research analyst petitions for not qualifying as a “specialty occupation” based on the OOH description.

Noticing this pattern, the American Immigration Council, the American Immigration Lawyers Association (AILA), and several law firms brought a class action lawsuit. USCIS tried to get the case dismissed. When all attempts failed, instead of litigating it they reached a settlement agreement.

Settlement Agreement is a Good Sign

The settlement agreement corrects the Agency’s error and stipulates that employers whose H-1B market research analyst petitions were denied between January 2019 and October 2021 may request that USCIS reopen and re-adjudicate their cases.

This result  raised hopes among the immigration law community that arbitrary denials based on failing to qualify as a “specialty occupation” will cease for other positions. We view the rulings by the court and resulting settlement as setting precedent.

With these changes, it should be much easier for businesses to use H-1B petitions for their employees, and open up more options for their workforce. Additionally, it means that there is new life for any H1-B petition that was denied during the January 2019 to October 2021 time period – as the rulings and settlement indicate that there is a much better shot at those petitions being approved now if re-opened and re-adjudicated.

An H-1B Season of Transition Begins

Contributed by Jacqueline Lentini McCullough, February 10, 2020

Immigration Law books with a judges gavel on desk in the library. Law education ,law books concept.

On February 3, 2020 a coding flaw in a mobile app delayed the tabulation and reporting of the Iowa Democratic Caucus results.

This high-profile failure reminds us that technological glitches can show up any time but especially when a system is put to extreme use.

This reminder is the guiding principle for an H-1B preparation strategy this year. A sound strategy involves planning for glitches with back up measures to ensure as smooth an H-1B filing experience as possible.

New changes to the H-1B filing process may introduce several speed bumps to the process of filing petitions.

Electronic Registration Process

This year the United States Citizenship and Immigration Service (USCIS) is implementing several changes to the H-1B petition process.

USCIS’s new requirements include that employers register electronically in advance of filing an H-1B petition and pay a $10 registration fee. USCIS officially announced this new process in the Federal Register on January 9, 2020.

Registration will happen via the organization’s myUSCIS online portal. USCIS launched the myUSCIS portal in 2015. The portal currently permits filing of forms such as I-90, N-400, and N-600, but as of this writing has not yet enabled H-1B registrations. The $10 registration fee will be paid on a separate platform,

Since October, the Department of Labor has been using its new Foreign Labor Application Gateway (FLAG) system to accept Labor Condition Applications (LCAs), which need to be in place before filing H-1B petitions.

Three different systems will play a role in the H-1B cap season this year – FLAG,, myUSCIS – two of which are relatively new to the process.

Will the systems need to talk to each other? It is not yet known if myUSCIS will be able to see from that the registration fee has been paid. As someone who has occasionally been challenged to get my computer to talk to my printer, this question looms in my mind.

H-1B Filing Timeline

Also new this year is USCIS’s schedule for the H-1B filing process.

While lawyers can establish myUSCIS accounts now, USCIS will only accept initial registrations from March 1 – March 20, 2020. Given the newness of the system and the unknown number of registrations that will be submitted, it is prudent to submit registrations during the early part of this time frame.

Between March 20th – 31st, 2020 USCIS promises to conduct the lottery and to inform registrants who have been selected by March 31. Selected registrants then have 90 days beginning April 1 to submit petitions.

USCIS included a clause in the Federal Register that would allow it to suspend the registration requirement if the system were found for any reason to be “inoperable.” If that were to happen, USCIS would likely return to the prior system and accept paper petitions to count toward the cap on a first come first serve basis. That means the cap could be reached in just a few days as in past years.

Paper records ensured the Iowa Democratic Caucus would still be able to tally votes even if it took a long time. And paper could save the day for H-1Bs this year.

U.S. Citizenship and Immigration Services Policy Challenged on Third-Party Worksites

Contributed by Jacqueline Lentini McCullough, June 7, 2019

A U.S. Citizenship and Immigration Services (USCIS) memorandum-issued policy is at the heart of a court case challenging recent H-1B visa denials.

The “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” memo was issued on February 20, 2018 without any notice or comment period required by the Administrative Procedure Act (APA). The memo directs adjudicators to ensure a contractor has actual and exclusive “control” of the contractor’s employees at the third-party site as a criterion for visa approval. This requirement comes from a rigid interpretation of the Department of Labor’s definition of “employer” which reads: “Has an employer-employee relationship with respect to employees under this part, as indicated by the fact that it may hire, pay, fire, supervise, or otherwise control the work of any such employee….” Instead of considering any one of these circumstances as qualifying, USCIS effectively changed the “or” to an “and,” requiring all of them.

H-1B visa denial rates skyrocketed the past two years, especially for contractors working at third-party worksites. Denial rates for initial H-1B petitions in Fiscal Year (FY) 2018 were 1 % for large technology companies but 34%-80% for companies that put H-1B visa holders at third-party sites. Third-party site work factors highly in IT consulting.

Visa Stamp

After having many H-1B visas denied or issued for short validity periods, several IT consulting firms filed lawsuits against USCIS. Those lawsuits have been consolidated into one under the aegis of the IT industry trade association ITServe Alliance.

Judge Rosemary Collyer presided over a court hearing of ITServe Alliance v. USCIS on 05/09/2019. Plaintiff attorneys produced data showing from FY 2012 to FY 2017, USCIS approved 94 % of their client’s ERP analysts’ H-1B petitions. During FY 2018 to FY 2019, the approval rate dropped to 19%.

Judge Collyer has taken issue with the disparate visa approval rates between different industries and USCIS’s requirement that contractors show three years’ worth of specific work assignments for H-1B petitioners when they are allowed “nonproductive” time as long as they are paid.

As Judge Collyer considers the case, she will rule on whether discovery is warranted to find out what has caused the different adjudications of H-1B petitions. Not only are H-1B approval rates markedly down for the IT industry, but requests for evidence and H-1B petition processing times have ballooned.

Requests for evidence (RFE) for all H-1B petitions have jumped from below 30% in first quarter FY 2017 to 60% in first quarter FY 2019. Meanwhile the number of petitions approved with a completed RFE has sunk from 80 % to just over 60 %.

Stay tuned as we will continue to provide updates as new information emerges.

H-1B Visas: What You Need to Know About Filing in 2019

Contributed by Jacqueline Lentini McCullough, January 30, 2019

The Department of Homeland Security (DHS) announced a proposed rule on November 30, 2018 that would require H-1B cap subject petitioners to register electronically with USCIS which would then conduct the annual H-1B lottery from the pool of timely-filed registrants.

The registration window would open 14 days before the H-1B filing window opens on April 1 and remain open for 14 days after that date. Petitioners selected during the lottery would be notified that they are eligible to file their petition and would have a 60-day window to do so.

book with words immigration law and glasses.

The proposed rule would also reverse the order that USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption. Currently the agency selects the advanced degree beneficiaries before filling the H-1B cap. Under the new rule, USCIS would count all applicants selected against the H-1B cap first, and then select the ones to receive the advanced degree exemption. Even with the reversal, those with advanced degrees will still have two chances in the lottery.

USCIS estimates that the proposed change would result in a 16 percent increase in the number of beneficiaries holding a master’s degree or higher from a U.S. educational institution.

The proposed rule was published in the Federal Register on December 3, 2018. USCIS accepted comments on it through January 2, 2019. On January 11, 2019, USCIS sent a final version of the proposed rule to the Office of Management and Budget (OMB) for review. The OMB completed its review on January 25th, and a final rule must be published in the Federal Register for it to take effect.

USCIS aspires to finalize and implement the new rule in time for the Fiscal Year 2020 filing season which begins April 1, 2019. Given that the OMB is scrambling in the wake of the shutdown, and the time it would take for the normal review process, it is uncertain that the proposed rule will apply this year.

What is true for this year is that H-1B petitions will require more strategic planning and upfront preparation than in prior years. Following the Trump Administration’s Buy American Hire American Executive Order on April 18, 2017, requests for evidence tripled for the past two years. I expect this level of scrutiny to continue for this year, too.

This means that we need to begin your application earlier, especially if you have never filed before. Companies filing for the first time need to apply to have the DOL verify their business and approve a Labor Condition Application (LCA) before they can file the H-1B petition. Each of those two processes takes at least 7 days.

H-1B Applicants, Start Your Engines

Contributed by Jacqueline Lentini McCullough, January 31, 2018

If you are planning to file H-1B applications for your employees this year, now is the time to start the process. While the filing deadline is April 2, 2018, it’s not too early to begin the application, which involves several time consuming steps. As in recent years, the H-1B cap season may be met with an overwhelming number of petitions within a week of the April 2nd deadline. If you plan to file for an H-1B visa this year, starting early will enable us to provide your petition with the best possible shot at winning the lottery and obtaining a visa. We recommend starting to prepare the H-1B application by February 12th.


The Waiting Begins: Will Your H-1B Case Be Selected in the Lottery This Year?

Contributed by Jacqueline Lentini McCullough

U.S. Citizenship and Immigration Services (USCIS) announced on April 7, 2016, that it received significantly more H-1B petitions than allowed under the statutory cap for fiscal year (FY) 2017. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming. The number of petitions filed this year, 236,000, exceeded last year’s high of 233,000 petitions.

U.S. Citizenship and Immigration ServicesThe USCIS began to issue receipt notices using the random, computer generated selection process or “lottery” for H-1B petitions on April 9, 2016. The random selection process is completed for the two categories of H-1B petitions: (1) U.S. Master’s or higher degree petitions (20,000 petitions accepted) and (2) Regular H-1B cap subject cases (65,000 petitions accepted). The USCIS will reject and return all H-1B petitions not selected in the lottery. The rejected H-1B petitions will be returned with uncashed checks to the employer or attorney of record. For regularly filed H-1B petitions, it will typically take the USICS a few weeks to begin issuing receipt notices in May. USCIS will begin adjudicating petitions filed under the premium processing clock no later than May 16, 2016. Normally, filing a petition with Premium Processing means it will be adjudicated within fifteen calendar days, but for cap subject petitions USCIS cannot honor this time frame.

USCIS will continue to accept and process petitions that are exempt from the H-1B cap. For example, petitions filed on behalf of current H-1B workers who have previously been counted against the cap will not be counted towards the FY 2017 H-1B cap.  USCIS will continue to accept petitions filed in the following situations:

  • To extend the amount of time a current H-1B worker may remain in the US;
  • To change the terms of employment for H-1B workers;
  • To allow currently authorized H-1B workers to change employers; and
  • To permit current H-1B workers to work concurrently in a second H-1B position.