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Last week, the Department of Homeland Security (DHS) posted a final rule in an effort to create a more effective and efficient H-1B visa program. The rule will go in effect April 1 and changes the way in which petitions are selected in the annual H-1B visa lottery. The new rule also paves the way for further changes—namely electronic registration—in the fiscal year (FY) 2021 cap season. Keep reading to learn what exactly these changes are and how they will affect your business. 
 
Change of Lottery Selection Order
 
The most immediate change brought by the new rule is restructuring of the order in which the United States Citizenship and Immigration Services (USCIS) selects H-1B visa allocations. Beginning this year, the USCIS will select 65,000 H-1B petitions for all applicants first, followed by the selection of 20,000 petitions from applicants with a U.S. master's degree or higher. 
 
In the past, the USCIS has selected the 20,000 applicants with a U.S. masters degree or higher before selecting 65,000 H-1B petitions from all applicants. According to a press release from the USCIS, the rule change will result in a 16%—or 5,340 workers—increase in individuals with a master's degree or higher from a U.S. institution having their petition selected.   
 
Electronic Registration 
 
While the revised selection process goes into effect this year, the electronic registration process that was proposed along with it—as we detailed in our blawg, A Step Forward for the H-1B Visa Process, Or Is It?—will be delayed until the FY 2021 cap season. The decision to delay the rollout of electronic registration is in response to public feedback—and is embraced by many immigration lawyers, including us—as it allows the USCIS more time to ensure the system and process are fully functioning before going live. 
 
Once implemented, the electronic registration process will present a large shift in the way H-1B visas are processed. Beginning in FY 2021 cap season, electronic registration will be required of all H-1B cap petitioners, including those eligible for the advanced degree exemption, to electronically register—rather than submitting a complete H-1B petition—with the USCIS during a designated period. 
 
What These Changes Mean for Employers
 
Depending on an employer’s hiring strategy, this rule may or may not be beneficial. For employers seeking to hire foreign nationals with advanced degrees from U.S. colleges and universities, the odds of being selected in the H-1B visa lottery has improved. However, there could be unintended consequences to the new rule, such as putting businesses that employ professionals in fields that don’t require a masters degree—for example, architecture, accounting, and public education—at a disadvantage. It could also have an impact on the healthcare sector, which heavily relies on foreign physicians, many of whom completed their medical education overseas. The rule will also lower the odds for some of the most skilled and qualified applicants with foreign advanced degrees—like those from prestigious universities such as Oxford University, Sorbonne University, and the University of Toronto.
 
The new electronic registration process will make it easier for employers to participate in the H-1B lottery and USCIS believes it will make the H-1B cap process more cost-effective for petitioners and more efficient for the USCIS. But, will this be the result? 
 
On the surface, only needing to simply register for the H-1B lottery, rather than submit a completed petition, would seem like a positive for employers. However, in many ways, this could end up costing employers additional time. The most notable potential problem is that the registration system could become inundated with non-meritorious applications. 
 
Why GoffWilson 
 
GoffWilson solely practices immigration law and has successfully assisted thousands of employers and employees with their H-1B petitions. If you have a question about the H-1B visa, how to put your petition together with the best chance for success, and how the new rule will affect your business, contact GoffWilson today. Put our thirty-plus years of experience and success with immigration and deep knowledge of the H-1B visa to work for you. Immigration—it’s ALL we do!


With H-1B filing season upon us as of April 1, 2019, we take this opportunity to remind you that the H-1B cap is expected to be reached much faster this year. This, coupled with higher denial rates of applications and with a staggering RFE (Request for Evidence) rate, a clear, "culture of no" message from the USCIS is making it more difficult for skilled foreign nationals to work in the USA with increasing denial rates for both the H-1B and L-1 visa programs. It is undeniable that Tech Firms, Medical Institutions, and others rely heavily on these professional workers. It is still possible for these employers to secure H-1B visa approvals for their employees.
 
Employers report the time lost due to the increase in denials and Requests for Evidence is costing them millions of dollars in project delays and contract penalties while aiding competitors that operate exclusively outside the United States beyond the reach of USCIS adjudicators and U.S. consular officers.
 
Small to medium-size companies and IT consultants and staffing agencies often bear the burden of these overbearing RFE's. Working with smart immigration practitioners and preparing your case strategy in advance to address both your strengths and weaknesses, will pay off greatly. Here are some tips that we highly recommend be incorporated in your filings:
 
  • Incorporate a detailed brochure and description of the employer's products or services and why you require a professional with a bachelor's degree to perform the offered position. Include promotional materials, press releases or news articles to illustrate the nature of the business, new trends and growth factors
  • Consider including a copy of your corporate tax return or financial statements
  • Explain in detail why the position cannot be performed by an employee without a bachelor's degree; i.e. is it standard in your industry? Provide detail (such as examples of work to be done) concerning the complexity of the position
  • Explain that all workers in that position within your company hold a Bachelor’s Degree or higher 
  • Provide a real, detailed job description with the percentage of time spent on the duties of the position. Further, explain any discretionary judgment that the employee will have in their job and other such areas of responsibility that are demanding or highly advanced
  • Provide evidence that you have a current and past practice of hiring bachelor's degree employees for the subject position
  • IT and staffing agencies must be prepared to evidence the "employer-employee relationship" in H-1B offsite placement work situations by clearly evidencing the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of the employee. Include a copy of the end-client agreement showing the duration of the stay
 
Again, we emphasize that planning in advance for successful case approval is imperative. These are a few tips to help you start planning for H season. If you currently have employees working for you in OPT or STEM, now is the time to move them into H visa status. We hope that you will find this information helpful. If you'd like to set up a time to discuss your H-1B visa needs with our attorneys or to engage our services, please feel free to contact us. We recommend you do so now as it takes time to adequately prepare these applications. Let us put our team to work for you. Immigration—it’s what we do.

In an effort to modernize the H-1B Visa, the United States Citizenship and Immigration Services (USCIS) recently proposed a rule change—Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens—that will make sweeping changes to how H-1B applications are processed by moving registration online. The USCIS is hopeful that this transition will result in less paperwork, increased efficiency, and decreased costs. While we at GoffWilson believe in the long-term value of streamlining and modernizing the H-1B process, the rule itself, along with its timing, has created some potential pitfalls that employers must be aware of. 
 
Online Registration Process
 
Under the USCIS’s proposed rule, sponsoring employers would need to electronically register applicants online before submitting an H-1B petition. The online registration process will require basic information from both the employer, such as name and address, and the beneficiary, like name and contact information. Additionally, the USCIS will need to know if a candidate has obtained a master's degree (or higher) from a U.S. institution. If the USCIS receives more petitions than required to fill the capped number of 85,000 H-1B visas granted per year with 20,000 of those reserved for applicants with a master's degree or higher, they will randomly select enough applicants from the registration to meet the cap. Those selected will have 60 days to submit full H-1B petitions along with an approved Labor Condition Application (LCA). 
 
Possible Problems with Online Registration 
 
What is most alarming for employers about the proposed online registration is the timing. December and January are typically the times of the year when businesses begin planning for hiring foreign-born employees—the new rule is open for public comment through January 2nd, meaning that the final rule regulating the process is likely to be published just weeks before the filing period opens, leaving employers in limbo as to how the H-1B Visa application process will be handled. Additionally, well-advised employers will have already begun preparing petitions following the old process, to avoid the increasing number of Requests for Further Evidence (RFEs) and Notice of Intent to Deny (NOIDs) by this point anyway, nullifying any time or resource savings. 
 
In addition to timing, there are a few other notable issues with the USCIS’s proposed online registration. The first issue is the ease with which employers can register for an H-1B Visa—because of the minimal amount of information required for employers to register online, the registration system could become flooded with non-meritorious registrations. Another issue is with the proposed staggering of filings by the USCIS. While staggered filing will allow the USCIS to better manage their workflow, it could worsen process delays already present in the current system, and cause difficulties for employees hoping to begin work on October 1st. 
 
What Employers Can Do To Prepare Themselves 
 
The immigration attorneys of GoffWilson believe the smart move for employers is to prepare for business as usual and treat this year’s H-1B season as they have in years past. That means companies should have well-evidenced and complete H-1B petitions ready to be submitted on April 1st. Employers should also be ready to register under the new system when, and if, it goes live. By doing this, employers’ interests are protected in both eventualities—more so, by going through the full H-1B petition process, employers can ensure the merit of their application and will be ready to go if their applicant is chosen.
 
Why GoffWilson 
 
H-1B Visa filing season always gives businesses a lot to consider, and the USCIS’s proposed new rule increases concerns exponentially. GoffWilson solely practices immigration law and has successfully assisted thousands of employers and employees with their H-1B petitions. Contact GoffWilson today and put our decades of experience to work for your company.


On July 24, 2018, U.S. Immigration and Customs Enforcement (ICE) announced the results of a two-phase nationwide operation in which it served Form I-9 Notices of Inspection (NOI’s) (i.e. audit notices) on more than 5,200 U.S. businesses. During the first phase of ICE’s operation, from January 29–March 30, 2018, it served 2,540 NOI’s on businesses and made 61 arrests. During the second phase, which ran from July 16–20, 2018, ICE served 2,738 NOI’s and made 32 arrests.  
 
Overall, from October 1, 2017 – July 20, 2018, ICE’s Homeland Security Investigations (HSI) opened 6,093 worksite investigations and made 675 criminal and 984 administrative worksite-related arrests. According to Acting Executive Associate Director for HSI, Derek N. Benner, the increase in I-9 audits is an effort to create a culture of compliance among employers. In this age of “Extreme Vetting,” we are seeing more site visits around H and L visa applications.
 
In our January 11, 2018, bLAWg post, we discussed ICE’s comprehensive worksite enforcement strategy, which was designed to target employers who violate employment laws. ICE’s strategy involves a three-prong approach to conducting worksite enforcement:
 
Compliance through Form I-9 audits, civil fines, and debarment referrals;
Enforcement through arresting employers who knowingly employ undocumented workers; and
Outreach through ICE’s IMAGE program, which aims to instill a culture of compliance and accountability.
 
With this recent wave of I-9 audits by ICE, it is clear that the worksite enforcement strategy is coming to fruition. Employers need to be proactive in their approach to compliance, before ICE comes knocking. A written compliance policy is more important than ever in helping to protect you from potential liability. Think you need assistance? GoffWilson is here to help, as our firm offers I-9 audit and compliance services, including personalized private training. Contact our office today for more information.


The U.S. Citizenship and Immigration Services (USCIS) announced on May 11, 2018 that it is changing its longstanding policy on how unlawful presence is calculated for students and exchange visitors in F, J, and M nonimmigrant status, as well as their dependents in F-2, J-2, or M-2 status. The new policy, which will go into effect on August 9, 2018, was released to align with President Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States. Members of the public can submit comments on the new policy until June 11, 2018.
 
According to the new policy, individuals in F, J, and M nonimmigrant status, who failed to maintain their status before August 9, 2018, will start accruing unlawful presence on that date, unless they had already started accruing unlawful presence on the earliest of any of the following: 
  • The day after the U.S. Department of Homeland Security (DHS) denied their request for an immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
  • The day after their I-94 expired; or
  • The day after an immigration judge or the Board of Immigration Appeals (BIA) ordered them excluded, deported, or removed from the U.S., regardless of any appeal filed.
Individuals in F, J, and M nonimmigrant status, who fail to maintain their status on or after August 9, 2018, will start accruing unlawful presence on the earliest of any of the following:
  • The day after they no longer pursue their course of study or authorized activity, or the day after they engage in an unauthorized activity;
  • The day after completing their course of study or program, including any authorized practical training plus any authorized grace period;
  • The day after their I-94 expires; or
  • The day after an immigration judge or the BIA orders them excluded, deported, or removed from the U.S., regardless of any appeal filed.
Unlawful presence is time spent in the U.S. after the expiration of the period of stay authorized by DHS. If an individual accrues more than 180 days of unlawful presence during a single stay in the U.S., and then he/she departs the country, he/she may be subject to a three-year bar from readmission. Accruing more than one year of unlawful presence during a single stay and then departing can result in a 10-year bar from readmission. An individual who accrues a total period of more than one year of unlawful presence, whether in a single stay or during multiple stays in the U.S., and who then re-enters or attempts to re-enter the country without inspection is permanently inadmissible. Having a U.S. admission bar means an individual is generally not eligible to apply for a visa, admission, or permanent residence without a waiver of inadmissibility or another form of relief.
 
With its announcement, USCIS explained that these policy changes are designed to reduce the number of nonimmigrants who overstay their periods of U.S. admission and clarify how USCIS implements the unlawful presence grounds of inadmissibility. In discussing the policy changes, USCIS Director L. Francis Cissna stated, “USCIS is dedicated to our mission of ensuring the integrity of the immigration system. F, J, and M nonimmigrants are admitted to the United States for a specific purpose, and when that purpose has ended, we expect them to depart, or to obtain another, lawful immigration status…The message is clear: These nonimmigrants cannot overstay their periods of admission or violate the terms of admission and stay illegally in the U.S. anymore.”
 
Worried about how this new policy might affect you? GoffWilson is here to help! Contact our office today for more information. 

Register today for the seminar taking place on Thursday, May 17th at Two Delta Dental in Concord, NH.
 
Here are some reasons you should register right now:
  1. You want to be current on the latest trends in I-9s.
  2. You need a refresher. Review with us new questions, choices, and solutions made in completing I-9s, how to correct flawed forms and how to avoid them.
  3. Your remote hires, recent merger, or federal contracts present considerable challenges that can be met following this informative seminar.
  4. HRCI credit and a certificate are provided to you so you maintain your HR accreditation.
  5. Knowledgeable speakers and assistants to walk you through real examples.
  6. We include a breakfast buffet!
Visit our website for more information or click here to register now.

With H-1B filing season upon us as of April 2, 2018, we take this opportunity to remind you that the H-1B cap is expected to be reached during the first week of April.
 
Engineering, healthcare, high tech, energy, finance, colleges/universities frequently benefit from employing H-1B Visa holders. Often times the foreigner is already working for an employer in OPT status. Working with an experienced immigration practitioner in advance to address both your strengths and weaknesses, is your best strategy. Here are some tips that we highly recommend be incorporated in your H applications this year:
 
1) A detailed brochure and description of the employer's products or services and why you require a professional with a bachelor's degree or higher to perform the offered position. Include promotional materials, press releases or news articles to illustrate the nature of the business, new trends and growth factors;
2) Including a copy of your corporate tax return or financial statements may be appropriate;
3) Explain in detail why the position cannot be performed by an employee who lacks a Bachelor's Degree: Is it a standard requirement in your industry? Provide details such as examples of work to be done that relates to the complexity of the position;
4) Providing a real, detailed job description with the percentage of time spent on the duties of the position may be helpful. Further, explain any discretionary judgment that the employee will have in their job and other such areas of responsibility that are demanding or highly advanced;
5) Provide evidence that you have a current and past practice of hiring bachelor's degree employees for the open position;
6) IT and staffing agencies must be prepared to evidence the "employer-employee relationship" in H-1B offsite placement work situations by clearly evidencing the employer's ability to "hire, pay, fire, supervise, or otherwise control the work of the employee.” 
 
These are just a few suggestions to think about as you consider filing an H visa application. Again, we emphasize that planning in advance for your application is imperative. Give us a call to discuss your need for an H Visa application for the individual currently working for you or who wants to work for your company to move it ahead successfully. We can strategize and lead to the best result for you.  It’s what we do!
 
April 1st, the opening day for filing H-1B visa petitions, is just around the corner. Arguably the most sought-after nonimmigrant visa, the H Visa is available for professionals to work in a specialty occupation (i.e. requiring a Bachelor’s degree or higher). If you are an employer seeking to hire one of these professionals, you better act fast as there are only 65,000 new H-1B visas available each fiscal year—and an additional 20,000 for individuals possessing a U.S. Master’s degree or higher. This quota is referred to as the H-1B CAP. Last year, the U.S. Citizenship and Immigration Services received approximately 199,000 CAP-subject H petitions during the filing period and the predictions for this year are even higher! If the number of petitions filed with USCIS on April 1st exceeds the available amount of H-1B visas, which is very likely given the strong economy and lack of highly skilled workers in the US, a random selection lottery will be conducted.  
 
Even with the lottery, you still want to file for an H Visa as the benefits outweigh the risks: your employee will receive a 3-year H-1B visa, which can be renewed for an additional 3 years. Additionally, H-1B visas allow for dual-intent, which means you can sponsor your employee for permanent residency (i.e. green card) and they can continue working for your company in the U.S. without interruption.
 
Complete H-1B petition packages include the required USCIS forms and filing fees, a Labor Condition Application (LCA), information surrounding the employer and the offered position, and documentation regarding the employee. Not sure where to begin? Contact the GoffWilson H-1B Team for assistance. Our office has successfully assisted thousands of employers and employees with their H-1B petitions. Contact us today for more information and be a winner all the way around!


On January 10, 2018, U.S. Immigration and Customs Enforcement (ICE) announced its comprehensive worksite enforcement strategy, which is designed to target employers who violate employment laws. ICE’s strategy includes a three-prong approach to conducting worksite enforcement:
 
Compliance through Form I-9 audits, civil fines, and debarment referrals;
Enforcement through arresting employers who knowing employ undocumented workers; and
Outreach through ICE’s IMAGE program, which aims to instill a culture of compliance and accountability.
 
Experts have been cautioning about increased worksite enforcement, but ICE’s announcement confirms it. If your company has been putting off taking a closer look at your Forms I-9, the time to take action is now, before ICE comes knocking on your door. Based upon what we have seen and read, the chance of this occurring is greater than ever. Hefty fines and criminal liability can be the result of poorly-completed I-9’s and a poorly-managed employment verification process. Much of this is avoidable by being proactive and taking certain precautionary measures. This must be done whether or not you employ any foreign workers. We can help you and your company stay ahead of violations.
 
Recently, Asplundh Tree Experts Co., one of the largest private companies in the U.S., was slammed with a $95 million penalty as a result of an ICE worksite enforcement investigation. The penalty was the largest in U.S. history for worksite enforcement, but with ICE’s new strategy, surely it will not be the last. And don’t be fooled, as we have reported here before, enforcement investigations are occurring for all sized businesses including the very small.
 
Want to take action on your company’s worksite compliance, but not sure where to start? Let GoffWilson be your guide.  Our firm offers I-9 audit and compliance services, including personalized private training and representation should you receive a visit from the immigration service. Contact our office today for more information. Worksite compliance is what we do!
 

This H-1B filing season, many employers will need to prepare a little differently than in past years. Throughout January, February, and March, H-1B petitioners will begin assembling thousands of H-1B visa petitions for filing on April 2nd, the first available filing date for the FY2019 cap season since April 1st falls on a Sunday this year. The H-1B visa is available to professionals coming to the U.S. to work in a specialty occupation (i.e., a postion requiring a Bachelor’s degree or its equivalent). 
 
There are 85,000 H-1B visas available, with 20,000 reserved for individuals possessing a U.S. Master’s degree or higher. This limited annual quota is known as the H-1B cap, and each year, the U.S. Citizenship and Immigration Services (USCIS) receives enough petitions to fill the cap (typically in excess of 150,000+) within the first week of filing. The USCIS then conducts a lottery on received petitions to randomly select the cases to fill the cap. If a petition is selected in the lottery and approved, the employer’s foreign worker will receive a 3-year H-1B visa, which will be renewable for an additional 3 years. The H-1B visa also allows for dual-intent, which means the employer can sponsor its foreign worker for permanent residency (i.e., a green card) to permit long-term U.S. employment.
 
The H-1B visa has long been a dependable way for employers to bring foreign talent into the U.S. Other than the limited cap numbers, the process has been relatively straightforward in recent years. However, in March and April 2017, the issuance of the USCIS Policy Memorandum, “Rescission of the December 22, 2000 ‘Guidance memo on H1B computer related positions,’” and the Executive Order, “Buy American and Hire American,” caused a shift in H-1B review at USCIS. Many Requests for Evidence (RFEs) were issued questioning the prevailing wage level selected by employers, as well as whether the offered position qualifies as a specialty occupation for H-1B purposes. 
 
GoffWilson has been successful in overcoming these wage level and specialty occupation H-1B RFEs, and we are working with employers to assemble more substantial and comprehensive petitions for the upcoming cap season. We recommend starting your H-1B petitions sooner rather than later to allow plenty of time for gathering the supporting documentation necessary to achieve success. Complete H-1B petition packages include the required USCIS forms and filing fees, a Labor Condition Application (LCA), information surrounding the employer and the offered position, and documentation regarding the employee.  
 
Looking for assistance with your company’s H-1B petitions? GoffWilson is here to help! We have assisted thousands of employers and employees with their immigration matters. Contact us today for more information.
 
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