Q&A’s published on the World Journal Weekly on March 26, 2023: Article: Predictions On Number of H-1B Registration Applications. Q&As: 1. Excusable overstay if married to a U.S. citizen 2. Renewal sponsorship by the same employer, approved I-140 can be reused 3. Priority Date is Not Shareable 4. PERM Denied  May Apply for Reconsideration

Article: Predictions On Number of H-1B Registration Applications.

The FY-2024 cap H-1B registration process is in full swing with application dates from noontime EST March 1, 2023 –noontime EST March 17, 2023. Happy St. Patty’s day! Does anyone have a good estimate as to how many applications will be submitted? Our guess is – not as many as last year’s 483,927, which was an all-time record. The downturn in the high-tech industry may lessen the numbers this year. In looking at FY-2022 statistics provided in the recently released National Foundation for American Policy (NFAP) report, “H-1B Petitions and Denial Rates In FY-2022”, the top initial H-1B recipient companies were Amazon, Infosys, Tata Consultancy Services, Cognizant, Google, Meta/Facebook, HCL America, and IBM. A sampling of articles giving predictions seems to favor the idea that the number will be less, but not that much less. One cited the 257,000 job cuts in the tech industry since last year, but also the latest data from the US Bureau of Labor Statistics (BLS) that the overall tech unemployment rate fell to 1.5% in January, which is notably low. Another cited the BLS survey of the 1.5% unemployment rate in computer and mathematical occupations along with an 1.7% rate in architecture and engineering occupations as evidence of high demand for people with technical skills, but also noted that even if H-1B registrations plummeted by 50%, the agency would still receive nearly 3 times as many registrations as petitions that could be issued due to the 85,000 yearly cap.

1. Excusable overstay if married to a U.S. citizen

A reader asks:
The lawyer and I did not receive an RFE. The online account was not displayed. I called the customer service and said that I couldn’t see that I had an RFE in the system. In the end, my I-485 was denied because I didn’t reply to the RFE. Now the EAD card has also been revoke, and I need to leave the country within 180 days. I have already file motion to reopen, hoping to approve. I thought about several backup plans: 1. Marry a citizen, file I-130. Do I have to leave the country or can I stay in the country as long as I file 130? 2. Find a non-profit job within 180 days, because I can apply for H-1B immediately without lottery. In this way, I do not need to leave the country and apply for green card marriage at the same time. Is there any other way?

Mr. Lee Answers,
Sorry to hear that you were denied for abandonment on an RFE for which your attorney did not reply since neither the lawyer nor you received the RFE. This is unfortunately a more than occasional problem of USCIS that it should work to fix. On your question of whether you would have to leave the country if you marry a US citizen, the answer is “no” since an overstay is forgiven where you are the beneficiary of an approved immediate relative petition and file for adjustment of status. As to whether you can remain here if you find a nonprofit job within 180 days (I assume that you are thinking in terms of a non-cap H-1B and the time for unlawful presence), you would still have to leave the US and return under a H-1B visa status to be legally allowed to take up the employment.

2. Renewal Sponsorship by the Same Employer  Approved I-140 Can be Reused

A reader asks:
I have just been laid off recently. I am currently on Stem OPT. Last year I had an approved I-140, and PD was at the end of 2021. I would like to ask, besides trying to find a new company to go thru the cap H-1B registration process, what else is there for me? way? Is it difficult to use the I-140 again if I return to my country?

Mr. Lee answers,
Besides H-1B transfer, you can attempt to change your status to F-1 student to remain here or if you believe you have extraordinary qualifications, an employer or agent can apply for you under the O-1 category. Those come readily to mind. If you are from a country that has a treaty of navigation and commerce with the US, eg. Taiwan or Japan, you may qualify for E-1 or E-2 treaty trader or treaty investor statuses. Other options are possibly available which would be dependent upon your particular situation. On your question of whether it would be difficult to use the I-140 again if you returned to your country, you might be able to use it if the same employer decides to continue the sponsorship. If not, and the employer has not timely revoked the petition within six months of approval, you should be able to use the priority date for purposes of another employment-based petition.

3. Priority Date is Not Shareable

A reader asks:
I submitted NIW in 2022, and priority date(PD) is in November. I am preparing to file an EB-1A application in January 2023. Are EB-1A and NIW Shared PD? If EB-1A is adjudicated before NIW, is PD still valid after being denied? Do I have to submit EB-1A at this time, or I shall wait for the NIW’s case to be approved before submitting it? I think there is a high probability that my NIW will be approved. Even if EB-1A is denial, can PD be locked until November 2022?

Mr. Lee answers,
There is no “sharing” of priority dates until there is an approved petition. At that point, a priority date can generally be used by the beneficiary in a second employment based case. We have seen this many times in Chinese and Indian cases in which the EB-3 approved petition’s priority date is shared with a later filed EB-2 petition since the EB-2 dates of visa availability lapped those of EB-3 in the past few years. If you wish to use the November 2022 NIW priority date for purposes of an EB-1 petition, you should wait until the NIW is approved before submitting the EB-1 petition and requesting the NIW priority date.

4. PERM Denied  May Apply for Reconsideration

A reader asks:
The PERM audit was denied after 3 months because the address of the Certifying Officer was the old address. What is the solution for this situation? Is it useful to apply for reconsideration?

Mr. Lee answers,
The Department of Labor is strict as to its governing of notices of filing (NOF) for the postings that must be placed upon employment premises. The Department of Labor changed the address for notification to the Certifying Officer of any complaints. The new address of

U.S. Department of Labor
Employment and Training Administration
Office of Foreign Labor Certification
200 Constitution Avenue NW, Room N-5311
Washington, DC 20210

became effective on August 25, 2021. Unless there were truly extenuating circumstances, it is difficult to believe that the Department of Labor would bend on a request for reconsideration.