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UPDATE:  USCIS completed the draw on July 31, 2023.

On July 27, 2023, USCIS announced that it will be conducting a second H-1B lottery for the 2024 fiscal year.  The initial lottery was conducted in March 2023 and the number of applications exceeded the cap by several hundred thousand.

The filing period for those who were selected in the first round was April 1, 2023 through June 30, 2023.  The fact that USCIS is conducting a second round suggests that of those selected, not all employers actually submitted an H-1B petition.

USCIS will make an announcement after the second round of lotteries are done.  Those selected will have their registrations updated in their myUSCIS accounts.

On March 14, 2023, a presidential advisory sub-committee voted to recommend increasing the grace period for H-1B workers who have been laid off or terminated from 60 days to 180 days.  While the policy has not been finalized, we can expect to learn more about whether it will go into effect in the coming months.  Stay tuned for details.

When an employer submits an I-140 petition to sponsor a foreign worker for permanent residency, one of the primary requirements is demonstrating to USCIS that it has the ability to pay the prevailing wage.  So how does an employer do so?

Initial Evidence

As part of the initial evidence, USCIS has stated that the sponsoring employer must provide at least one of the three following documents for the most recent tax year:

• Annual report
• Federal tax return
• Audited financial statement

100+ Employees

If the company has more than 100 employees, USCIS will permit the employer to provide a written statement from its financial officer confirming that it has the ability to pay the prevailing wage.  This statement may be submitted in lieu of the three aforementioned documents.  However, USCIS has discretion to determine whether the statement will be sufficient by itself.

Employee’s Salary

If the employee has been working for the company, it may provide proof that he/she has been paid more than the prevailing wage as of the Priority Date.  Typically, the employer can provide W-2 forms for the previous year and recent pay stubs showing the current rate of pay and the year-to-date earnings.  Note that providing the employee’s pay stubs and W-2 does not obviate the requirement to provide one of the aforementioned initial evidence documents.

Secondary Evidence

USCIS has also listed other documents that may be submitted as secondary evidence to prove its ability to pay the prevailing wage. These include the company’s:

• Bank statements
• Personnel records
• Income and assets of related companies
• Lines of credit

2022 and 2023 has seen a surge in layoffs across the board with economic uncertainly has caused many employers both large and small to reduce their workforce.  For those who are in the U.S. in non-immigrant status such as H-1B, H-1B1, E-3, L-1, TN or O-1, being laid off can have consequences beyond having no paycheck.

USCIS has clarified that non-immigrant workers who have been laid off or terminated will have a 60-day grace period to take certain actions.  Specifically, if any of the following actions are taken within 60 days of the end of employment, the non-immigrant worker will be considered to remain in authorized, lawful status.

Update:  On March 14, 2023, a Presidential Subcommittee voted to increase the 60-day grace period for laid off H-1B workers to 180 days.  This has not been finalized yet but check back for updates.

A new employer files a petition to change or transfer non-immigrant status

If you accept a new position and the new company files a timely petition to change or to transfer your status, you may be able to stay beyond the 60-day grace period.  For example, you were in H-1B status with Company A and laid off on February 1st.  You accept a new position with Company B on February 15th and the new employer files an H-1B petition on your behalf.  You can stay beyond 60 days until the new petition is approved so long as the petition was not-frivolous.

You file a petition to change to another non-immigrant status

You are laid off on February 1st.  On February 20th, you are accepted and enroll in a SEVIS-approved school.  You may file an application to change your status from H-1B to F-1 before April 1st.

You file an application for adjustment of status

You were in H-1B status and laid off on February 1st.  You have been in a relationship with a U.S. citizen and decide to get married.  If you file an application to adjust your status before April 1st, you may continue to stay in authorized status.

Effective March 6, 2023, USCIS will begin accepting premium processing applications for F-1 students who have already submitted EAD applications for pre-completion OPT, post-completion OPT, or STEM OPT extensions.

In other words, those with pending I-765 applications with USCIS for OPT may submit an application upgrade the pending application to premium processing.  Upon receipt, USCIS will have 15 days to adjudicate the application and to issue a decision.

Starting April 3, 2023, USCIS will accept concurrently filed premium processing applications for F-1 students who are submitting I-765 applications for OPT.

This will certainly be welcome news for F-1 students who have job offers lined up after graduation and are waiting for their OPT.  It is also welcome news for STEM graduates looking to extend their 1-year OPT for another 24-months.