H-1B Cap Exceeded, Even With Reduced Filings

Although the number of H-1B filings was down for this year's cap, the cap was greatly exceeded and a lottery selection has been made. Of the 199,000 petitions submitted, approximately 85,000 H-1Bs will be granted. 

Receipt notices are being sent for those lucky enough to have made the lottery, with rejection packages expected soon thereafter. In past years, the notifications have taken weeks to send out, even up to a couple of months.

Compared to prior years, the number of submissions this year was down. Last year, 236,000 petitions were submitted for the H-1B cap, and 233,000 the year before. Even with the drop to 199,000 this year, this still leaves applicants with about a 50/50 chance to make the lottery. And not all cases selected in the lottery will be approved. USCIS accepts more than 85,000 petitions based on an algorithm predicting the number of cases it expects to deny.  

The USCIS announcement regarding the H-1B lottery selection is available here: https://www.uscis.gov/news/alerts/uscis-completes-h-1b-cap-random-selection-process-fy-2018

Current State of Affairs - UPDATE

UPDATE to the post below - Effective February 3, 2017 the Executive Order affecting travel is on hold due to a temporary restraining order. 

A lot has happened in the past week. An Executive Order was signed that restricted visas and travel for a number of immigrants, various U.S. agencies issued statements and interpretations of that order, several lawsuits were filed and injunctions issued, and today we have implementation of the order that is quite different from the original - with continued changes expected. And on top of all that, the rumor mill is going full speed with what we might expect next.

So let's stop, take a moment, and see what we actually have right now.

• The Executive Order no longer applies to U.S. lawful permanent residents.
• The Executive Order no longer applies to dual nationals who are using a passport from a country that is *not* on the list of restricted countries.
• Landed immigrants of Canada (not including refugees) who hold a passport from one of the restricted countries, who have a valid U.S. immigrant or nonimmigrant visa, and whose travel originates in Canada and is through a land border or Preclearance location, may travel to the United States.
• There are *no* current plans to expand the travel ban beyond the listed countries. The Department of State has specifically asked that we help stop these rumors! 
• For individuals who are from one of the listed countries, and who would use a passport or travel document from one of those countries when traveling (Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen), it is recommended that you remain in the U.S. if you are here already and *not* leave the country.
• A court order effective in Massachusetts until February 5 temporarily lifts the travel ban, effectively applying to flights to Boston only. At least one airline, Lufthansa, is permitting individuals to board flights to Boston during this period: http://www.lufthansa.com/us/en/Travel-information.
• Refugee admissions remain on hold, although it is possible that some of the court injunctions could open them back up. We are watching to see how this is handled.
• The ability of certain visa applicants to apply without attending an in-person interview still stands in many cases (those established by statute) - the Executive Order simply restricted the occasions when this can occur. *NOTE* This applies only to individuals who are already required to apply for a visa to enter the U.S., allowing certain individuals such as those applying for an extension within a short time frame, those applying for certain diplomatic/official visas, or those of a certain age, to submit their application without appearing in person. It does *not* affect the Visa Waiver program that allows nationals of certain countries to travel to the U.S. as visitors up to 90 days without a visa (those individuals only have to register online through ESTA - they do not have to apply for a visa in the first instance) - the Visa Waiver program remains unchanged.
• Increased screening remains in place for all immigration benefits. Travelers and applicants can expect increased scrutiny and questioning. It is important to know your rights in such situations, which are outlined briefly here: http://www.aila.org/advo-media/tools/psas/knowledge-is-power-protect-your-rights.
• CBP and DOS are continually providing updated information at: https://www.cbp.gov/border-security/protecting-nation-foreign-terrorist-entry-united-states and https://travel.state.gov/content/travel/en/news/important-announcement.html.

We will continue to see and hear many more rumors in the coming days, weeks and months. I urge you to look to reliable and official sources to discern what is real, and welcome you to contact me with any questions.

New Form I-9 - Smart Enhancements

U.S. Citizenship and Immigration Services (USCIS) published a revised Form I-9 that will be mandatory starting January 22, 2017, available at https://www.uscis.gov/i-9. While changes to the form itself were minor, the most significant development is the availability of a "Smart" Form I-9 that is designed to reduce paperwork errors that can lead to costly fines for employers. This is particularly important given that USCIS increased monetary fines for I-9 violations earlier this year, more than doubling the fines that can be imposed for paperwork errors. Employers can also still print Form I-9 and fill it out by hand.

For employers that use the online Smart Form I-9, they must also print the form once complete, have it signed by both the employee and employer, and then retain the original, signed form. This online version of the form does not provide for electronic signature, electronic storage, or electronic connection to E-Verify. However, the online Smart Form I-9 still has a number of benefits:

• It adds help prompts for each field on the form, as well as a link to the full instructions online
• Certain fields validate the number of digits, such as date fields and the Social Security Number field
• There are drop-down lists for state names and citizenship/immigration status
• There is a mechanism to check the form once finished to ensure all fields are completed
  • But keep in mind this only ensures the fields are completed, not that the information is correct
• Certain repetitive fields are pre-populated (employee name and citizenship/immigration status)

Changes made to both the paper and online versions of the new Form I-9 include:

• Section 1 now specifies that only other "last names" used are required, rather than any other name used
• Foreign nationals have less data to enter in certain circumstances
• A new checkbox is required to indicate whether or not a preparer or translator was used
• The employee's citizenship/immigration status must now be entered at the top of Section 2
• A box is provided in Section 2 for entering additional information, when needed

It is imperative that employers use the current version of Form I-9 when they hire a new employee. The Smart Form I-9 now provides enhancements to ensure the form is completed correctly, providing employers an additional layer of protection in the process. However, these enhancements cannot take the place of proper training. The Form I-9 comes with 15 pages of instructions and a 60+ page handbook -- it is certainly not as simple as it seems. Employers should take advantage of the resources available at I-9 Central, https://www.uscis.gov/i-9-central, and consult with counsel to ensure they understand how to complete the form and have proper compliance procedures in place.