As expected, the annual H-1B cap for FY2014 was reached last week, in the first week that petitions could be filed. USCIS received approximately 124,000 H-1B petitions, but only 85,000 slots were available (65,000 under the regular cap and 20,000 under the Master's cap). USCIS conducted a computerized lottery on Sunday, April 7 to select the lucky petitions which will be receipted under the cap for this year. Receipt notices have begun going out, and they will be followed by the rejected petitions being returned to attorneys and petitioners. It will likely be a few weeks before we receive all of the receipt notices for cases that were selected under the cap.

Now that the cap has been reached, no new cap-subject H-1B petitions can be filed until April 1, 2014, for an October 1, 2014 start date. However, USCIS will continue to accept and process petitions that are otherwise exempt from the cap, including petitions to:  

• Extend the amount of time a current H-1B worker may remain in the U.S.;
• Change the terms of employment for current H-1B workers;
• Allow current H-1B workers to change employers;
• Allow current H-1B workers to work concurrently in a second H-1B position; and
• Work for a cap-exempt institution, such as a university, teaching hospital, or non-proft or governmental research organization.

If you have identified any employees or potential new hires whom you were considering for H-1B status before October 2014, please contact the attorney you work with by phone or email to discuss other possible options or strategies for filing in FY2015.    

U.S. Customs and Border Protection (CBP) announced last month that it will begin to issue automated Forms I-94, Arrival/Departure Records at the end of April. As you likely know, Form I-94 provides nonimmigrants with physical evidence that they have been lawfully admitted to the United States.  The new automated process is intended to streamline the admissions process for nonimmigrants arriving to the United States by air or sea.  Affected nonimmigrants will no longer need to fill out a paper Form I-94 upon arrival, nor will they receive a white I-94 card in their passports upon admission. Applicants for admission who go through secondary inspection, such as asylees, refugees, and parolees, will still be provided a paper copy of Form I-94 by a CBP officer, as will nonimmigrants entering the U.S. through a land port.

USCIS, on the other hand, will continue to require nonimmigrants to submit a paper copy of Form I-94 when applying for certain benefits. Other government agencies, such as Departments of Motor Vehicles (DMVs), also require a paper copy of Form I-94. Moreover, nonimmigrants who are authorized to work may present a paper copy of Form I-94 to their employers during the employment eligibility verification (I-9) process. In light of this, CBP has indicated that, after April 30, individuals who do not receive a paper Form I-94 when entering the U.S. will be able to go to www.cbp.gov/I94 in order to print a copy of an I-94 based on the electronically-submitted data, including the I-94 number from the form, which can be provided, as necessary, to benefits providers or as evidence of lawful admission. Please note that this website will not be available until the new procedure takes effect later this month.

The new automated I-94s will be rolled out in phases over a four week period. During the first week (beginning April 30), only Chicago O'Hare, Orlando, Las Vegas, Miami, and Charlotte Douglas International Airports will be implementing the new system. The following week it will be implemented at all major air and sea ports around New York, Boston, Buffalo, Baltimore, Detroit, Atlanta, Tampa, Puerto Rico, Miami, Chicago, New Orleans and Houston. For a full implementation schedule, visit the CBP website. For more details about the I-94 automation process, see the CBP Fact Sheet. 
 

U.S. Citizenship and Immigration Services (USCIS) published a revised Employment Eligibility Verification Form I-9 last month. This is the form that all employers must complete to verify the employment authorization and identity of their employees.  The key revisions to the form include: formatting and layout changes which expand the form from one page to two; additional data fields, such as the employee's foreign passport information, telephone number, and email address; and amended instructions to both employees and employers. 

Employers should begin using the revised I-9 Form (with a revision date of "(Rev. 03/08/13) N" located on the bottom left-hand corner of the form) immediately. After May 7, 2013, none of the prior versions of the Form I-9 may be used.  Please note that employers do not need to complete the new Form I-9 (Rev. 03/08/13) N for current employees with a properly completed Form I-9 already on file, unless re-verification is necessary.  However, after May 7, all re-verifications should be made on the new Form I-9.  Unnecessary re-verification may subject employers to liability under U.S. anti-discrimination laws. 
 

Immigration reform continues to be a hot topic in Washington, and we anticipate that several draft reform bills may be presented within the next several weeks. We will keep you informed if it appears that new legislation which will affect you or your employees may be imminent.