Dear Clients and Colleagues,

We hope this newsletter finds you well. In this edition, we bring you important updates on various immigration matters. Please take a moment to review the following key highlights:

USCIS Reforms H-1B Lottery System: Ensuring Fairness with One Entry Per Applicant and Preventing System Manipulation

In a groundbreaking move, the Department of Homeland Security (DHS) has finalized a regulation that fundamentally transforms the H-1B cap registration process into a beneficiary-centric system. This new rule is set to be in effect for the Fiscal Year (FY) 2025 H-1B cap registration period, beginning at noon Eastern Time (ET) on March 6, 2024 and concluding at noon ET on March 22, 2024.

The shift to a beneficiary-centric model marks a significant departure from previous practices, aiming to streamline the process and enhance fairness in the selection of applicants. This change ensures that each beneficiary, regardless of the number of registrations submitted on their behalf, will have an equal opportunity in the H-1B lottery, thereby eliminating any potential for manipulating the system.

Additionally, a notable USCIS fee rule is on the horizon, scheduled to take effect on April 1, which will introduce significant increases for employment-based filings, including the H-1B visa. This adjustment in filing fees is part of a broader initiative to better align the USCIS fee structure with the actual cost of processing applications and petitions, which is crucial for maintaining the integrity and efficiency of the immigration system.

Another significant update is the flexibility concerning the petition's requested start date. Unlike the previous requirement for an October 1st start date, petitioners can now request any start date within the applicable fiscal year, provided it does not exceed six months beyond the petition's filing date. This adjustment offers employers and beneficiaries increased flexibility in planning their employment start dates.

Despite these changes, the registration fee for FY2025 will remain at $10. However, it's important to note that the Department of Homeland Security (DHS) plans to increase filing fees across the board in April 2024, raising the H-1B registration fee to $215 per registration for the subsequent year.

The DHS's final regulation is a pivotal step towards creating a more equitable and transparent H-1B cap registration process. By focusing on the individual beneficiary rather than the number of petitions filed, the USCIS aims to foster a more competitive and fair environment for all applicants. With the upcoming USCIS fee rule, stakeholders are encouraged to prepare for the changes and adjust their filing strategies accordingly.

As the FY 2025 H-1B cap registration period approaches, employers and beneficiaries alike are advised to stay informed about these significant changes and plan their applications in alignment with the new beneficiary-centric system and the impending fee adjustments. This regulatory shift is expected to have a profound impact on the H-1B visa landscape, emphasizing fairness and efficiency in the pursuit of skilled foreign workers.

USCIS Announces Organizational Accounts and Online Filing for Enhanced H-1B Cap Season Experience

We are excited to share significant enhancements to the H-1B cap season process, aimed at increasing efficiency and facilitating smoother collaboration among organizations and their legal representatives. In a groundbreaking development, U.S. Citizenship and Immigration Services (USCIS) is set to introduce organizational accounts and launch online filing options for H-1B registrations and petitions.

Starting in February 2024, USCIS will launch organizational accounts tailored for the fiscal year (FY) 2025 H-1B cap season, as well as non-cap filings. These accounts are designed to enable multiple users within an organization—including companies and business entities—and their legal representatives to collaboratively prepare and manage H-1B registrations, Form I-129 (Petition for a Nonimmigrant Worker), and the associated Form I-907 (Request for Premium Processing Service).

USCIS Director Ur M. Jaddou emphasizes our commitment to process improvement, stating, “This is a big step forward. The launch of organizational accounts and the online filing of I-129 H-1B petitions will make the entire H-1B lifecycle fully electronic.” This initiative aims to not only streamline the process but also reduce the occurrence of duplicate registrations and common errors, enhancing overall efficiency.

Following the introduction of organizational accounts, online filing for Forms I-129 and I-907 will be made available, facilitating a smoother, more streamlined filing process. Additionally, to further our efficiency goals, the paper filing location for these forms will transition from service centers to the USCIS lockbox.

To ensure a smooth transition and to assist organizations and legal representatives in navigating these changes, USCIS hosted two national engagements on January 23, 2024  and January 2, 2024. We expect USCIS to hold several smaller sessions leading up to the H-1B registration period. These sessions will provide valuable opportunities to ask questions and gain insights into organizational accounts and the new electronic registration.

Overcoming Financial Hurdles: Demonstrating Ability to Pay in I-140 Petitions Despite Limited Funds

The Yates Memo, officially titled “Ability to Pay under Section 204.5(g)(2)” and issued by the U.S. Citizenship and Immigration Services (USCIS) on May 4, 2004, provides guidance on how to determine an employer's ability to pay the proffered wage from the priority date onwards in employment-based immigrant visa petitions, including those filed on Form I-140, Immigrant Petition for Alien Worker.

According to the Yates Memo, USCIS officers are instructed to consider several factors when assessing an employer's ability to pay the proffered wage.

These factors include:

1. Net Income: The employer's net income as shown in its financial statements. If the net income is equal to or greater than the proffered wage, it is considered sufficient evidence of the employer's ability to pay.
2. Net Current Assets: If the employer's net income is not sufficient, USCIS will look at the employer's net current assets. If the net current assets are equal to or greater than the proffered wage, this can also demonstrate the employer's ability to pay.
3. Payment of Wages: Evidence that the beneficiary has been employed and paid by the petitioning employer at the proffered wage or higher since the priority date is a direct way to prove ability to pay. For beneficiaries not yet employed by the petitioner, other forms of evidence must be provided to demonstrate financial ability.

The memo emphasizes that the ability to pay must be proven from the priority date of the petition until the beneficiary obtains lawful permanent resident status. The priority date is usually the date the labor certification application (PERM) is filed with the Department of Labor (DOL) or, if a labor certification is not required, the date the I-140 petition is filed with USCIS.

The Yates Memo also clarifies procedures for cases where there are discrepancies or challenges in the financial evidence presented, offering a more structured approach to adjudicating these aspects of the I-140 petitions. It provides a framework for both petitioners and USCIS officers to assess financial viability and ensure compliance with the ability to pay requirement.

Employers are encouraged to provide comprehensive financial documentation and, if necessary, supplemental evidence such as employment contracts or letters detailing the terms of employment to substantiate their claims. In situations where traditional financial evidence might not clearly demonstrate ability to pay, the memo allows for a broader interpretation of financial health and capabilities.

This memo significantly impacts how employment-based I-140 petitions are adjudicated, ensuring a consistent and fair assessment of an employer's ability to support its prospective foreign employees financially.

The scenario becomes particularly complex when an employer experience financial losses. However, as demonstrated in the Matter of Sonegawa case, the USCIS may still approve an I-140 petition despite the company's financial losses. In Sonegawa, the Administrative Appeals Office (AAO) focused on the totality of the evidence presented to ascertain the employer's ATP. Even in years of financial loss, an employer can demonstrate ATP by showing that it has paid the offered wage to the beneficiary since the priority date or by providing evidence of net income, net current assets, or other financial metrics that indicate the ability to pay the proffered wage.

Employers must proactively address ATP concerns by preparing and presenting a comprehensive financial picture that convincingly demonstrates their capacity to pay the offered wage. This includes detailed documentation of the beneficiary's salary payments (if already employed), financial statements, and any additional evidence that supports the employer's ATP. In cases of financial difficulty or when sponsoring multiple employees, employers may need to show ATP for all sponsored workers, underscoring the importance of strategic planning and legal consultation.

It's crucial for employers facing ATP challenges, especially those in situations similar to the Matter of Sonegawa, to seek the guidance of experienced immigration attorneys. These professionals can provide valuable insights into the nuances of immigration law, helping to navigate the complexities of the ATP requirement and increasing the chances of I-140 petition approval. The Matter of Sonegawa case underscores that, with the right approach and thorough documentation, it is possible to overcome ATP concerns, even in less-than-ideal financial circumstances.

We hope you find this information valuable. If you have any questions or require legal assistance related to any of these updates, please don't hesitate to contact us. We are here to help.

Sincerely,

Keshab Raj Seadie, Esq.
Law Offices of Keshab Raj Seadie, P.C.

Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.