Update: FY2025 H-1B Cap Registration Results
The U.S. Citizenship and Immigration Services (USCIS) recently announced the Fiscal Year 2025 H-1B cap lottery results, revealing a significant drop in the number of registrations—470,342, down 38.6% from 758,994 in FY 2024. This reduction is attributed to new USCIS policies aimed at enhancing program integrity, including curbing the unusually high rate of multiple registrations per individual last year.
In the FY2025 H-1B Cap lottery, USCIS selected 114,017 beneficiaries, resulting in 120,603 selected registrations. Given these numbers, the likelihood of a second lottery for the FY 2025 H-1B cap appears slim.
USCIS to Conduct Second Random Selection for FY 2024 H-1B Cap Cases
On July 27, 2023, the U.S. Citizenship and Immigration Services (USCIS) made a significant announcement, stating that it will conduct a second random selection from the pool of previously submitted FY 2024 H-1B cap registrations. This decision was necessitated by the agency’s determination that additional selections were required to meet the FY 2024 numerical allocations. USCIS plans to select additional registrations from the previously submitted electronic registrations using its random selection process, and will provide updates once this second selection process is completed.
The announcement of a second lottery selection seems to be related to wide-spread concerns about the potential for multiple employers submitting H-1B registrations on behalf of a single beneficiary. The record-breaking 780,000 H-1B lottery registrations this year, with a strikingly low selection rate of approximately 14.6%, was largely due to duplicate applications. The USCIS reported that more than half the registrations, nearly 409,000, were for potential beneficiaries whose names were submitted multiple times. The increase in registrations this year from individuals whose names were submitted only once was much smaller — 350,000, up from 309,000 last year. While not explicitly illegal, this practice has raised substantial concerns within the USCIS that certain entities may have collaborated to submit multiple registrations for the same beneficiary, in an attempt to manipulate the system and unjustly inflate the chances of a beneficiary’s selection in the lottery. Investigations into these concerns had been initiated by USCIS, resulting in the denial and revocation of certain petitions, as well as its instituting referrals for potential criminal prosecution. The USCIS’s announcements and the media’s reports on this matter appear to have led to the intended “chilling effect” on the number of actual H-1B petitions filed from those that were selected in the initial lottery.
The implementation of a second lottery selection, while offering a glimmer of hope for many U.S. educated professionals, starkly illuminates the inherent flaws of the current H-1B cap registration process, specifically the recently introduced digital lottery process. The lack of any real safeguards within this system led to its foreseeable exploitation. Further, the exceedingly low annual H-1B quota allocation continues to hamper U.S. business and education. Ultimately, to secure an intelligent and truly merit-based immigration system, and to ensure that the U.S. continues to attract top talent globally, the registration process must be redressed, and the annual H-1B cap and the 7% cap on per country green card issuance must be significantly increased.
Canada’s Tech Talent Strategy: A Model for Reform in the U.S. Immigration System
In an effort to augment its technological sector, the Canadian government, under the banner of its Tech Talent Strategy, is launching an exclusive open work permit stream for U.S. H-1B specialty occupation visa holders. This initiative, slated to commence on July 16, 2023, promises to offer up to 10,000 of these highly-skilled professionals a flexible work permit to work in Canada, for up to three years. Spouses and dependents of the principal applicants would not be counted towards the 10,000 number, and would also eligible to apply for temporary Canadian resident visas, including work or study permits, as required.
The Tech Talent Strategy, while a significant step forward, still lacks key details and presents certain restrictions. The program is currently set to run for a year or until it hits the ceiling of only 10,000 applications. A noteworthy omission in the Canadian strategy is the non-inclusion of F-1 OPT STEM workers in this initiative. This demographic, a significant number of whom have earned their STEM Master’s degrees from U.S. institutions – could have been a substantial asset to the Canadian tech sector. The integration of these innovative, committed professionals could have presented Canada with the opportunity not only to tap into a significant reservoir of young and motivated individuals but also to potentially secure their lifelong loyalty, as many have been consistently overlooked for H-1B visas due to the fraud-riddled quagmire that the Fiscal Year H-1B Cap lottery process has devolved into, thanks to its ill-conceived “digital” transition under the outgoing Trump Administration.
The unveiling of Canada’s Tech Talent Strategy highlights the shortcomings of the U.S.’s immigration policy, especially regarding the attraction and retention of highly skilled tech professionals. Our own policy continues to be entangled in a web of bureaucratic complexities as well as archaic measures and quotas, leading to insufficient H-1B quota numbers and prolonged green card waiting periods, which disproportionately impact Indian nationals.
Our own purported “merit-based” immigration policy, amounting to a mere 15% of all U.S. green cards issued annually, is woefully inadequate, allocating a meager 2,000 or 2,500 green cards to Indian professionals each year, including their spouses and children under 21. Meanwhile, a staggering backlog of approximately 900,000 other Indian applicants remains in agonizing limbo, condemned to endure a wait that is projected to extend for decades.
These extensive processing times, particularly for the very individuals who make monumental contributions to the U.S. Tech Sector’s triumph, not only repel talent but also serve as an unequivocal testament to a system in dire need of comprehensive reform. The stark disparity between our policy and those implemented by other nations underscores the pressing urgency for immigration reform in the U.S.
(Via AILA.org) Major Settlement Changes How USCIS Adjudicates Work Permits for [H-4 and L-2 ] Nonimmigrant Spouses
Via AILA.org
AILA and its litigation partners entered into a settlement agreement with DHS that provides structural changes for H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization. (Shergill, et al. v. Mayorkas, 11/10/21)
For H-4s:
Within 120 days of the Effective Date, USCIS will amend the receipt notice currently issued to applicants to detail the EAD auto-extension eligibility for those holding H-4 status based on the validity period provided on a Form I-94 in combination with a facially expired EAD and the Form I-797C receipt notice for a timely-filed I-765 EAD renewal application.
For L-2s:
USCIS will issue policy guidance that states that L-2 spouses are employment authorized incident to status and, in cooperation with CBP, change the Form I-94, within 120 days of the Effective Date, to indicate that the bearer is an L-2 spouse so that it can be used as a List C document for Form I-9 purposes.
FOR IMMEDIATE RELEASE
Wednesday, November 10, 2021
Washington, DC – The American Immigration Lawyers Association (AILA) and its litigation partners Wasden Banias and Steven Brown, celebrate the historic settlement with the Department of Homeland Security (DHS) in Shergill, et al. v. Mayorkas, which provides structural changes for nonimmigrant H-4 and L-2 spouses suffering from long delayed processing times for the processing of applications for employment authorization. The litigation successfully achieved the reversal of U.S. Citizenship and Immigration Services (USCIS) policy that prohibited H-4 spouses from benefiting from automatic extension of their employment authorization during the pendency of standalone employment authorization document (EAD) applications. Although this is a giant achievement, the parties’ agreement will further result in a massive change in position for USCIS, which now recognizes that L-2 spouses enjoy automatic work authorization incident to status, meaning these spouses of executive and managers will no longer have to apply for employment authorization prior to working in the United States.
Jesse Bless, AILA Director of Federal Litigation stated, “Today marks a historic change for L-2 spouses who will now enjoy work authorization incident to status. AILA’s membership has long advocated for the correct statutory interpretation and we’re delighted to have reached this agreement, which includes relief for H-4 spouses, through our litigation efforts with Wasden Banias and Steven Brown. It is gratifying that the administration saw that settling the litigation for nonimmigrant spouses was something that should be done, and done quickly.”
Jon Wasden stated, “After years of outreach to the agency, it became clear that litigation was unfortunately necessary. Despite the plain statutory language, USCIS failed to grant employment authorization incident to status for L-2s. The other issue relates to H-4s whose work permits expire prior to their H-4 status; this is a group that always met the regulatory test for automatic extension of EADs, but the agency previously prohibited them from that benefit and forced them to wait for reauthorization. People were suffering. They were losing their high-paying jobs for absolutely no legitimate reason causing harm to them and U.S. businesses. So, while I’m glad the agency finally followed the law, it is frankly frustrating that an easily fixable issue took this long to address.”
See this op-ed from Forbes for more information
Read the Decision: Shergill, et al. v. Mayorkas, 11/10/21 [PDF]
Indian Nationals File Lawsuit Challenging Presidential Proclamation 10052’s H-1B/H-4 Visa Ban
A group of 174 Indian nationals, including seven minor children, filed a lawsuit in the U.S. District Court for the District of Columbia challenging Presidential Proclamation 10052, which took effect on June 24, 2020, and temporarily suspends entry of certain H, J, and L nonimmigrants into the United States. The plaintiffs seek an order declaring Proclamation 10052 to be unlawful, compelling DHS to issue decisions on their pending requests for H-1B and H-4 visas, and enjoining DHS from refusing entry into the United States based on the proclamation, among other relief.
(Panda, et al. v. Wolf, et al., 7/14/20)
Ashwin Sharma quoted by the Times of India on USCIS’s latest Policy Memo, a Major Victory for H-1B Consulting Firms/Employees
I was quoted today in a Times of India article on USCIS’s issuance of a game-changing new policy memorandum yesterday in which it rescinds and replaces two previous policy memoranda (2010, 2018) regarding the adjudication of H-1B petitions for professionals assigned to third-party job sites.
Among its other directives, the memo instructs USCIS officers to stop requiring H-1B employers to provide job itineraries for H-1B candidates as well as private contractual documentation between third-party client/vendor companies. The memo advises USCIS officers to refrain from issuing ridiculously short approval durations in these cases (as little as 1-2 months). The memo also makes it easier for an H-1B employer to demonstrate an eligible Employer-Employee relationship with its H-1B employee.
In summary: though USCIS still maintains arrows in its quiver to target the H-1B program, the new guidance represents extremely positive news for H-1B stakeholders, particularly those within the consulting industry. The policy guidance is effective immediately, and applies to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification.
Ashwin Sharma Quoted by the Times of India Regarding Issues Faced by Laid-Off H-1B Workers
“Sharma also said H-1B employees face another challenge. The inability of an employee to continue working and retaining insurance benefits because of USCIS’s historic delays in adjudicating extensions (again, for the H-1B in particular, the present unavailability of the premium processing option leaves H-1B employers and employees in a very difficult predicament). “The USCIS’s delay can severely impact an H-1B/EAD (employment authorisation document), employee’s ability to maintain their employment and associated insurance benefits by placing them in a gray area – they may be lawful to remain in the USA during this time, but they cannot work until USCIS approves their H-1B or EAD in these cases,” he said.”
Ashwin Sharma quoted in the Times of India re: the President’s Immigration Suspension and the possible future impact to Nonimmigrant visas such as the H-1B
“Ashwin Sharma, Jacksonville-based immigration attorney, told TOI, “At present the proclamation has left untouched the vulnerable visas in the non-immigrant categories. However, section 6 of the proclamation is deeply concerning as it leaves the door open to a future attack on the H-1B and other work visas.”
Sharma hopes that the President has no further plans to attack the H-1B and other non-immigrant visas under the guise of ‘protecting the American worker’. He wondered whether the proclamation is a subtle and first test of the waters. According to him, US will need its skills gap filled by H-1B and other professional workers in the long recovery from the ravages of Covid-19.”
Reminder: Effective today, March 20, 2020, USCIS will not accept any new requests for Premium Processing
Via USCIS.gov
U.S. Citizenship and Immigration Services today announced the immediate and temporary suspension of premium processing service for all Form I-129 and I-140 petitions until further notice due to Coronavirus Disease 2019 (COVID-19).
Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing. USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service, in accordance with the premium processing service criteria. However, we will not be able to send notices using pre-paid envelopes. We will only send batch-printed notices. Petitioners who have already filed a Form I-129, Petition for a Nonimmigrant Worker, or Form I-140, Immigrant Petition for Alien Workers, using the premium processing service and who receive no agency action on their case within the 15-calendar-day period will receive a refund, consistent with 8 CFR 103.7(e). We will notify the public with a confirmed date for resuming premium processing.
USCIS will reject the I-907 and return the $1,440 filing fee for all petitions requesting premium processing that were mailed before March 20 but not yet accepted.
This temporary suspension includes petitions filed for the following categories:
- I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.
- I-140: EB-1, EB-2 and EB-3.
This includes new premium processing requests for all H-1B petitions, including H-1B cap-subject petitions for fiscal year 2021, petitions from previous fiscal years, and all H-1B petitions that are exempt from the cap. USCIS previously announced the temporary suspension of premium processing for FY 2021 cap-subject petitions and tentative dates for resumption of premium processing service. This announcement expands upon and supersedes the previous announcement.
For current Form I-129 and I-140 processing times, visit the Check Case Processing Times page and the H-1B page on the USCIS website.
03/10/2020 DECISION: ITSERVE ALLIANCE, INC. v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES
03/10/2020
Judge Rosemary M. Collyer of the US District Court for the District of Columbia ruled in the favor of ITServe Alliance, Inc. in its Administrative Procedure Act (APA) suit against USCIS. This is extremely positive news for H-1B Petitioners and Beneficiaries, and in line with the arguments that these stakeholders have been making before USCIS for some time.
The decision makes for some great reading as the Judge deftly fillets USCIS’s “strategic” attempts to ensure that its Policy Memos maintain sufficient legal standing to have the force of the law, but not sufficient to be legally challenged; the Judge also rejects USCIS’s interpretation on the issues of, “Employer-Employee Relationship” and “Specialty Occupation”, indicating that, “The CIS interpretations…are plainly erroneous“, and dismisses the Itinerary requirement quite simply because, “…is not in the statute.”
“The Court concludes that, as applied to these Plaintiffs in the IT consulting sector, it is irrational, that is, arbitrary and capricious, to impose the INS 1991 Regulation as does CIS, requiring contracts or other corroborated evidence of dates and locations of temporary work assignments for three future years; it is, in fact, a total contradiction of the Plaintiffs’ business model of providing temporary IT expertise to U.S. businesses. Nothing more clearly illustrates the legislative nature of the CIS interpretation of the Regulation because it would effectively destroy a long-standing business resource without congressional action.”
Next action: “The subset of cases that are assigned to Judge Rosemary M. Collyer will be remanded to CIS for reconsideration consistent with this Opinion and the Court will order that such reconsideration shall be completed in no more than 60 days.”
Additional Excerpt of the Decision Below:
“Approximately thirty-three cases have been filed in this District challenging the handling of H-1B visa applications by CIS, a constituent agency of the Department of Homeland Security (DHS). Although not “related” within the meaning of Local Civil Rule 40.5(a)(3), the cases have been consolidated before this Court with the agreement of the assigned Judges for briefing on three legal issues under Local Civil Rule 40.5(e):
1. the authority of CIS to grant visas for less than the requested three-year period;
2. the authority of CIS to deny visas to companies that place employees at third-party
locations either because the third party is determined to be the employer or because
specific and detailed job duties are not provided with the visa application; and
3. the related statute of limitations issues raised by the government.See 3/6/2019 Minute Order Referring Case for Limited Purpose (Consolidation Order), ERP Analysts v. Cissna, No. 19-cv-300. Question 2 concerns the employer-employee relationship, the availability of work for a temporary foreign worker, and the foreign worker’s maintenance of status. Plaintiffs allege that CIS is applying new versions of these requirements, without engaging in rulemaking, to H-1B applicants that are IT consulting firms and not to other U.S. employers.
The Court finds, as discussed below, that:
1. The 1991 Regulation was adopted by INS through notice-and-comment rulemaking and the statute of limitations ran out long before this case was filed. It is subject only to an as-applied challenge.
2. CIS issued a 2010 Guidance Memorandum (CIS 2010 Guidance Memo), also referred to as the Neufeld Memo, from which comes a new employer-employee relationship set of requirements. It is timely challenged on an as-applied basis but not as a facial challenge.
3. CIS issued a 2018 Policy Memorandum, PM-602-0157 (CIS 2018 Policy Memo). It can be challenged either facially or as applied.
4. The current CIS interpretation of the employer-employee relationship requirement is inconsistent with its regulation, was announced and applied without rulemaking, and cannot be enforced.
5. The CIS requirements that employers (1) provide proof of non-speculative work assignments (2) for the duration of the visa period is not supported by the statute or regulation and is arbitrary and capricious as applied to Plaintiffs’ visa petitions. These requirements were also announced and applied without rulemaking and cannot be enforced.
6. CIS’s itinerary requirement was superseded by a later statute that permits employers to place H-1B visa holders in non-productive status and is, therefore, no longer enforceable.
7. CIS has the authority to grant visas for less than the requested three-year period but must provide its reasoning behind any denials, in whole or in part.”
Lubna Kably (Times Of India) explores the ignoble treatment of Indian professionals in and by the US following Pres. Trumps visit to India
Via Lubna Kably, TOI Opinions
“Su Chhe (What’s up) President Donald Trump? Given your rhetoric that India is hitting USA very hard, it looks like you are not in a good mood. Perhaps, our crowds will cheer you up.
Of course, there are jokes on twitter, that if you want crowds, you should visit Dadar railway station in Mumbai, during peak hours. But this is just a few tweeple being mean. Indians believe in hospitality and are kind hosts, even if the host for the event at Ahmedabad’s cricket stadium appears to be a mysterious Nagarik Abhivadan Samiti.
Yes, we know you danced to ‘My Way’ at the inauguration ball, but savvy leaders like you are aware that it takes two to waltz gracefully. It is understandable that you do want Indian-Americans (those who are now USA citizens) to vote for you, yet your administration is hitting hard those Indians who are in USA on work visas (especially H-1B), on H-4 or the dependant visa largely held by spouses and children of H-1B workers, and even those on student visas.”
The U.S. Immigration Law Blog by Ashwin Sharma 
Quoted in CBC article on Canada’s Successful Tech Strategy in which it Outsmarted the U.S. by Poaching 10,000 STEM H-1B Visa Holders in Less Than 48 Hours
“At the very least, Canadians have brought to light the fact that there are other, smarter countries with better immigration policies that actually value science, technology, engineering and math,” said immigration lawyer Ashwin Sharma of the Sharma Law Office in Jacksonville, Fla.
“Perhaps the U.S. will start doing the same.”
Sharma also acknowledged that the open nature of the Canadian work permit, coupled with the higher salaries generally on offer in U.S. tech industries, may mean that not all applicants are looking to move to Canada on a long-term basis.
“It could be that the H1-B workers are coming over for a short period of time to perhaps kill off some unemployment period of time,” he said.
“It remains to be seen how many will remain in Canada.”
Continue to CBC Article