• 09May
    DOL News, H-1B Visa News Comments Off on Preparing for the New STEM OPT Regulations, Effective May 10!

    As many of you are still reeling from abysmal H-1B cap results as a result of a record number (236,000) of H-1B cap-subject filings this year, we must now turn our attention immediately to define viable alternative visa options for those foreign graduates who were not fortunate enough to be selected in the H-1B lottery.  The purpose of this update is to discuss recent regulatory changes, effective May 10, 2016, to one of the most common alternatives to the H-1B classification, the STEM/OPT extension.

    In the past, one of the common alternatives to the H-1B classification for employers with recent foreign national university graduates who were not selected in the H-1B lottery, but who possess qualifying Science, Technology, Engineering or Math degrees (so-called “STEM” degrees), was the ability for that foreign graduate to apply for a 17 month STEM extension of their Optional Practical Training (OPT) work authorization.   Until recently, the requirements to secure this STEM/OPT extension were simple and did not require any extensive involvement of the employer.  Specifically, the regulatory requirements were as follows:

    1. The graduate completed and received a qualifying STEM degree from an accredited U.S. college or university that related to their employment; and
    2. The employer was registered with E-Verify.

    Unfortunately, the days of the straightforward STEM/OPT work authorization extension process are now behind us.  In exchange for agreeing to lengthen the STEM/OPT period of work authorization (from 17 months to 24 months), there is a new, somewhat rigorous regulatory scheme, effective tomorrow, May 10, that now requires additional cooperation from the employer by way of an affirmative filing made by the employer.

    More specifically, beginning on May 10, any qualifying STEM graduate wishing to apply for his/her STEM/OPT extension is responsible for the demonstrating the following:

    1. The employee received his/her STEM degree from an accredited college/university that is Student and Exchange Visitor Program-certified (SEVIS registered);
    2. The employee must have previously been granted regular OPT work authorization that remains effective;
    3. The employee must apply for the Form I-765 employment authorization renewal/extension up to 90 days before the student’s current regular OPT period expires;
    4. The employee must apply for the Form I-765 employment authorization renewal/extension within 60 days after the student’s Designated School Official’s (DSO) enters into SEVIS the DSO’s recommendation to extend the OPT; and
    5. The employee must make certain his/her employer is registered with, and actually utilizing, the E-Verify system.

    Please note:  If your 17-month STEM/OPT extension was already approved, in order to request the balance of the 24 month extension (the additional 7 months), you must have at least 150 calendar days remaining prior to the end of your 17-month STEM/OPT extension at the time you file the Form I-765.

    In order to obtain the DSO’s OPT extension recommendation (#4 above), the graduate, together with the employer, must now complete and submit to the DSO the newly-minted Form I-983 Formal Training Plan for STEM OPT Students.  The Form I-983 is a mandatory application and requires both the employee and employer to satisfy several new training and verification requirements.   With regard to the employer, the Form I-983 requires you to attest, under penalty of perjury, the following:

    1. The employer is providing an internship or job opportunity that is commensurate with those of similarly-situated U.S. workers in terms of duties, hours, and compensation;
    2. The employer possesses sufficient resources and trained personnel to provide the appropriate training;
    3. The employment of the student will not replace any U.S. worker;
    4. The training program will assist the student in the student’s (degree-related) training objectives;
    5. The employer agrees to provide adequate notice to the DSO of any material changes to the student’s participation in the program (i.e. pay, work hours, corporate changes, terminations, etc.);
    6. The employer and student agree to prepare and submit a detailed and goal-oriented formal training plan measuring the employer’s oversight and the training measures and achievements reached by the student related to their STEM degree; and
    7. The employer will agree to provide annual reviews of the students’ formal training plan confirming the achievements reached under the program.

    Here are the benefits of the new STEM/OPT regulations:

    1. An increased STEM/OPT work authorization period from the previous 17 months to 24 months (thus allowing these students potentially 3 “bites of the apple” in the H-1B lottery with an aggregate post-graduate OPT period of 36 months);
    2. It allows those currently employed under a STEM/OPT extension to remain employed for the duration of the 17 month EAD extension and also permits them to file for an additional 7 month extension (provided additional requirements are met);
    3. It extends the period of permissible unemployment to 150 days during the combined 36 months of regular and STEM OPT work-authorized period;
    4. It permits the student to remain employed for up to 180 days while the STEM/OPT extension request is pending if the current EAD card expires; and
    5. It allows students currently employed pursuant to the standard 12 month OPT period based on non-STEM degrees to be the eligible to file for the 24 month STEM/OPT extension if that student previously received a U.S. STEM degree.

    On the downside, these newly-minted STEM/OPT regulations have added reporting requirements for the student and employer to maintain compliance with these STEM/OPT training programs (under the threat of DHS audit).  Some of the most salient reporting requirements include the following:

    1. The STEM/OPT student must report to his/her DSO multiple times per year;
    2. The employer must prepare (and sanction) a formal training program and plan for submission to DSO for approval; and
    3. The employer must report material changes to any approved training plans.

    The next few days, weeks and months are bound to be hectic and unsettling to your foreign graduate OPT and STEM/OPT employees who will, no doubt, be inquiring as to whether your business will assist them in navigating these new regulations.  While we will be reaching out separately to each of our clients to discuss options for your foreign graduates who were not selected in the H-1B lottery, we would strongly urge you to contact us for assistance with navigating these uncharted waters, especially completing and submitting the new Form I-983 Formal Training Plans.

  • 22Mar
    H-1B Visa News, OPT, PERM Comments Off on STEM OPT Period Of Post-Grad Work Authorization Extended To 36 Months

    On March 11, the Department of Homeland Security (DHS) issued the highly anticipated final rule permitting qualifying F-1 foreign students with science, technology, engineering and math (STEM) degrees earned in the United States to extend their optional practical training (OPT) work authorization period by 24 months, in addition to the 12-month standard period of OPT available for all F-1 foreign graduates in all fields.  This 24-month extension effectively replaces the 17-month STEM OPT extension previously available under the prior regulation. The new rule will become effective on May 10, 2016.

    The net result of this new STEM OPT rule is that qualifying STEM graduates will now receive an aggregate of 36 months of STEM OPT work authorization in the United States, thereby permitting foreign students to remain in the United States after graduation to work and receive practical training relating to one’s respective field of study.  The new STEM OPT extension also offers employers an additional 7 months to review the performance of foreign STEM OPT workers prior to deciding whether to pursue temporary (H-1B) or permanent employment (green card) sponsorship. Thus, the new rule allows STEM graduates and employers more flexibility and makes the United States an even more attractive destination for potential STEM international students.

    Practical Effect Of The New Rule:

    Beginning on May 10, U.S. Citizenship and Immigration Services (USCIS) will issue Requests for Further Evidence (RFEs) asking students with pending STEM OPT extension applications whether they wish to amend their application from 17 to 24 months.  Alternatively, students with pending applications also have the option to withdraw and re-file a new application with a 24-month request, but with the caveat that a student can only apply for a STEM OPT extension if post-completion OPT has not yet expired.

    Students who have already received a 17-month STEM EAD will be able to file for a 7-month extension between May 10, 2016 and August 8, 2016, so long as 150 days still exist before the expiration of their 17-month STEM EAD and they file within 60 days of the date their Designated School Official (DSO) enters the recommendation for the 24-month STEM OPT extension into the student’s SEVIS record and other requirements are met, and they meet all other requirements for the 24-month STEM OPT extension.

    The new STEM OPT rule, in combination with the existing H-1B cap-gap rules, will now permit many qualifying STEM graduates 3 “bites at the apple” at the H-1B lottery instead of 2. With the possibility of 3 full years of work authorization, some employers may opt to pursue sponsorship for permanent residency (for STEM graduates who are from countries with available visa numbers) rather than rely on obtaining work authorization through the highly coveted H-1B program.

    Employer Obligations:

    Consistent with the former rule, STEM OPT extensions are only available for students working for employers who are participating in the E-Verify program. The new STEM OPT rule also adds increased oversight of the STEM OPT program, including: (i) individualized training plans developed by the employer and the student; (ii) regular student reporting to the college/university’s DSO; (iii) completion by the employer of an attestation that the student will not replace U.S. workers; (iv) a requirement that STEM OPT students are offered the same terms and conditions (including compensation) as similarly situated U.S. workers; and (v) limitation of the extension to students with degrees from accredited schools.

    Conclusion:

    The new rule was drafted in order to resolve the challenge to the faulty administrative process utilized to pass the STEM OPT rule created under the Bush Administration. In addition to reviving the STEM OPT extension in compliance with required rulemaking procedures, DHS took the opportunity to extend the validity period. This is certainly a welcome result, especially when one considers the grim 33% chance a foreign national graduate faced last year in connection with being selected in the H-1B lottery.

    If you have any questions about the STEM OPT extension or its potential effect on the H-1B cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

    Please follow us on Twitter @ML_Immigration to stay tuned for further developments.

  • 28Jan
    Uncategorized Comments Off on District Court Grants DHS’ Requested Relief To Extend The Stay of STEM OPT Program For An Additional 90 Days, Through May 10, 2016

    In a largely anticipated move, the US District Court for the District of Columbia granted DHS’ motion to extend the Stay Order of the STEM OPT program, permitting the program to continue to exist under its current regime for an additional 90 days.

    In August 2015, the STEM OPT program, which allows foreign national graduates of U.S. universities to extend their post-graduate work authorization an additional 17 months if (i) the graduate’s degree falls within the list of approved STEM disciplines and (ii) the STEM employer is enrolled in E-Verify; was dissolved by the District Court on procedural grounds. Such dissolution, however, was initially stayed for six (6) months to allow DHS time to fix the program’s procedural deficiencies. With the recently granted extension of the stay, the District Court has now ensured that the current STEM OPT regulations will remain in effect until May 10, 2016, and has further given DHS some additional time to vet the overwhelming volume of public comments it received about the existing program and to make any necessary changes.

    While this decision was not a surprising one, it does come as welcome news to the more than 23,000 STEM OPT participants currently working in the United States. In particular, if the stay was not granted beyond April 1, many of the STEM OPT graduates would no longer have been eligible to apply for H-1B visas under this year’s H-1B cap as many would no longer be work authorized leading up to the April 1 filing date and, thus, would no longer be eligible for the automatic OPT extension provided by the “Cap Gap” measure initiated by USCIS.

    This process, however, is far from over, as DHS will still need to review the public comments on its newly proposed STEM OPT amendments and implement a final rule by May 10, 2016. Our firm will continue to monitor the progress of the STEM OPT program and will keep you updated on any new developments. Stay tuned!

  • 12Jan
    H-1B Visa News Comments Off on H-1B Cap Season: Time To Start Planning!

    It’s that time of year again!  The April 1, 2016 “deadline” for the filing of H-1B cap cases for Fiscal Year 2017 is rapidly approaching, and given pent-up demand, we fully expect the H-1B cap to be reached on opening day.  As usual, USCIS will continue to accept petitions during the first five (5) business days; i.e., through Thursday, April 7, 2016.  However, once the H-1B cap has been reached, employers will be unable to file new cap-subject H-1B petitions for a full year, until Monday, April 3, 2017. As such, we strongly encourage you to identify any employees who may require H-1B sponsorship and contact us as soon as possible to begin preparing your H-1B petitions for a timely April 1 filing.

    HR ACTION NEEDED:  Assess Your Cap-Subject H-1B Needs:

    H-1B visas are available for specialty (professional) occupations requiring at least the attainment of a bachelor’s degree or its equivalent in a relevant discipline. For current or transferring employees, U.S.-based employers should take the time to consider who the Company may need to sponsor for an H-1B for Fiscal Year 2017.

    Here are some of the most common candidates for an H-1B under the annual cap:

    • F-1 visa holders (student interns / recent graduates) who are working for you pursuant to an Employment Authorization Document issued in connection with an approved period of post-grad Optional Practical Training (OPT);
    • F-1 visa holders (student interns) who are working for you while in school pursuant to  university-approved Curricular Practical Training (CPT); J-1 visa holders (interns/trainees) whose training programs will expire and who will need a change their status from J-1 to H-1B in order to continue working for you;
    • TN employees (Canadian and/or Mexican NAFTA professionals) who may require an H-1B to be eligible to apply for adjustment of status to that of a lawful permanent resident;
    • L-1B visa holders (intra-company transferees with specialized knowledge) approaching the end of their 5 years of L-1B eligibility who may need to switch to an H-1B to gain an additional year of work authorization and for whom a change of status is a necessary component to planning your long-term strategy of pursuing lawful permanent residence for that employee;
    • O-1 visa holders who are coming up for expiration within the next year as O-1s are renewable in only one year increments (as compared to a 3 year period for an approved H-1B); and
    • Potential candidates who are living and working abroad and have not been previously counted against the H-1B cap.

    PLEASE NOTE: the H-1B cap applies only to “new” H-1B petitions. As such, current H-1B workers seeking to file an extension of stay or a transfer petition are not subject to the H-1B cap.

    The Importance of Early Preparation:

    Cap-subject H-1B petitions are accepted by USCIS on a “first-come-first-serve” basis. Any petitions filed after the cap is met will be returned and cannot be re-filed until the following year.

    To assure a timely filing, Labor Condition Applications (“LCAs”) should be submitted to Labor Department by the beginning of March, and petitions should be ready for filing before April 1, 2016.  With that said, gathering the necessary supporting documentation and preparing the H-1B visa filing materials can be time consuming. Preparation includes assembling background and educational documents, drafting and signing letters and forms, and submitting an LCA with the Labor Department for certification. Early preparation is therefore essential.

    If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

    Please follow us on Twitter @ML_Immigration to stay tuned for further developments with the H-1B cap filing season.

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  • 30Sep
    Adjustment of Status, Department of State, Global Immigration, Green Card News, I-485, Immigration Reform, USCIS News Comments Off on State Department Reneges on Filing Dates Established for AOS Applicants

    In a largely unanticipated move, the State Department (“DOS”) announced on Friday that it significantly rolled back the Adjustment of Status (“AOS”) application filing cut-off dates it established under the Obama Executive Action less than three (3) weeks ago. Specifically, on September 25, DOS released a revised visa bulletin for October 2015, superseding the bulletin that was originally published on September 9. The revised October Visa Bulletin contains new and earlier filing cut-off dates than those dates contained in the original October Visa Bulletin issued on September 9.

    These revised filing cut-off dates are apparently a response to USCIS concerns over the Service’s ability to process such a huge volume of AOS applications. In response to such concerns, the “Dates for Filing Visa Applications” for certain visa preference categories, particularly the employment-based second preference (EB-2) category for China and India, have been significantly rolled back.

    The retrogression of these filing cut-off dates will serve to dramatically reduce the number of individuals permitted to pre-file for Adjustment of Status on October 1 based on the originally published October Visa Bulletin. This sudden reversal of filing cut-off dates is a great disappointment to employers, their foreign national employees, and immigration professionals alike, all of whom had already begun the process of preparing a number of filings in reliance upon the anticipated October 1 filing date.

    Litigation has ensued against the Federal Government – only time will tell if such litigation will yield a positive outcome.

    Stay tuned!

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  • 09Sep
    Adjustment of Status, Department of State, Global Immigration, Green Card News, I-485, Immigration Reform Comments Off on The U.S. Department Of State Announces Significant Reforms To The Visa Bulletin Process For Employment-Based Applications For Permanent Residence

    Today, the U.S. Department of State (DOS) announced a significant reform to the way the agency forecasts green card availability (through the issuance of a monthly Visa Bulletin) for employment-based green card applications. This reform now makes it possible for eligible employer-sponsored foreign nationals to file the third and final step of the green card process, the Application for Adjustment of Status to permanent residence (Form I-485), before an immigrant visa number otherwise becomes available to them. Based on this key development, the foreign national employee (and his/her eligible dependents) will be eligible to apply for interim employment authorization (Form I-765) and travel documents (Form I-131) during the often lengthy wait for a green card.

    Up until yesterday, under the previous (broken) regime, a foreign national was only eligible to file an application to adjust status (or an application for an immigrant visa abroad) when his or her “priority date” became “current”, as specified in the monthly Visa Bulletin issued by DOS. By way of background, a foreign national’s priority date is the date on which a labor certification (if required) or a Form I-140 immigrant worker petition was filed on his/her behalf. The priority date becomes is current if it falls before the cut-off date listed in the monthly Visa Bulletin.

    Under the new, revised procedures, the Visa Bulletins going forward will now provide 2 different charts, which charts list two critical cut-off dates for each backlogged employment-based preference category and country. The first chart (which is the same chart that has always appeared in the Visa Bulletin), has not changed as it simply lists the cut-off date for actual immigrant visa availability. This chart is now referred to as the “Application Final Action Dates”, which chart provides dates when green cards / immigrant visas may finally be issued. The second chart is the new addition to the Visa Bulletin that provides a new cut-off date for eligibility to file an Application for Adjustment of Status or, alternatively, apply for an immigrant visa abroad. This chart is referred to as “Dates For Filing Applications”, which provides the earliest dates when applicants may be able to apply for adjustment of status, despite no immigrant visa number being available.

    To illustrate the stark benefits of the revised procedures, according to the October 2015 Visa Bulletin, the Application Final Action Date for the Employment-Based Second Preference (EB-2) Category for Indian Nationals is May 1, 2005. This translates to a backlog of more than ten (10) years for Indian nationals filing advanced-level positions to become eligible to file the third and final step of the green card process. Simply stated, the employers of these Indian EB-2 candidates must have commenced the green card process (generally by filing a labor certification) more than 10 years ago for them now to be eligible to apply for the third and final step of the green card process in October 2015.

    Under the new, revised procedures, Indian EB-2 candidates with a priority date of July 1, 2011 or earlier may now file an Application for Adjustment of Status, as set forth in the second chart of the October 2015 Visa Bulletin. To be clear, those who qualify under this second cut-off date will not be able to receive a green card until an immigrant visa number becomes available to them, as reflected in the first chart. However, by filing an Application for Adjustment of Status, these foreign nationals and their respective dependents will be able to file concurrent applications for interim work and travel benefits, as stated above.

    This new, revised procedure is welcome news to many employer-sponsored foreign nationals, particularly those from India and China, who are most significantly affected by green card backlogs. Now that the new Visa Bulletin has been released, we expect the State Department and U.S. Citizenship and Immigration Services to answer the unresolved questions presented by this new filing opportunity, including how long it will remain available and how to submit applications.

    This was a centerpiece of President Obama’s executive action on immigration which will certainly help to alleviate the hardships that employment-based immigrant visa backlogs can cause.

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  • 28Jul
    B-1 (in lieu of an H-1B), E-2 Investor Visas, H-1B Visa News, H-3 Visas, L-1 Visa News, L-1 Visas, O-1 Visas, TN Petition News Comments Off on Options and Alternatives For Candidates Not Selected In The H-1B Lottery

    The H-1B visa is, by far, the most sought-after temporary work visa in the United States for foreign national workers. It requires sponsorship by a U.S. employer and is limited to specialty occupation positions which generally require the candidates to hold at least a bachelor’s degree (or the equivalent) in a relevant discipline.

    Despite its demand, the H-1B visa category is not without its drawbacks. For one, new H-1B visas are subject to an annual quota of 85,000, with 20,000 of those set aside for advanced degree graduates with a U.S. Master’s degree or higher. (The H-1B quota applies only to petitions for new employment and not to beneficiaries of H-1B extensions and transfers from one U.S. employer to another. Nor does the quota apply to employees of qualified institutions of higher education and certain non-profit or government research organizations.)

    For fiscal year (FY) 2016, a record-breaking 233,000 H-1B cap petitions were filed with USCIS, representing a 35% increase from the prior fiscal year. Based on such an overwhelming increase in filings, H-1B candidates were faced with a 1 out of 3 chance of a petition being selected in the H-1B lottery. In other words, approximately 2/3 of all petitions submitted were summarily rejected for lack of quota numbers.

    So what is a U.S. employer to do when a foreign national is not selected in the H-1B lottery? While there are a limited number of options presented by the “alphabet soup” of temporary visa categories, there are some viable alternatives for obtaining valid work authorization for such foreign nationals. The following list includes some of those alternatives.

    1. B-1 (in lieu of an H-1B): While the B-1 is not a traditional work visa, if applied for properly, this sub-classification is a viable alternative for multinational employers as it will allow foreign nationals to temporarily engage in professional-level employment in the U.S. for short-term periods (up to 6 months) provided the foreign national does not receive a salary or any other remuneration from the U.S. employer. Rather, the foreign national must be placed and remain on the payroll of a foreign entity;

    2. O-1: This visa classification is generally associated with nationally or internationally acclaimed scientists, researchers, athletes or artists; however, this category can also be utilized for business personnel who can establish they have risen to the top of their respective fields by demonstrating he/she satisfies at least 3 out of 10 threshold criteria provided in the regulations. See 8 C.F.R. § 214.2(o)(3)(iii);

    3. L-1: This visa classification is commonly used by multinational employers to transfer executive, managerial or “specialized knowledge” personnel to the U.S. from abroad. It requires a common ownership and control of the sending and receiving entities by way of a parent, subsidiary, affiliate or branch relationship. In addition, qualifying candidates must have been continuously employed for at least 1 year with the foreign affiliate within the preceding 3 years;

    4. TN-1 (Canada) and TN-2 (Mexico): This visa classification is available only to citizens of Canada and Mexico who are coming into the U.S. to engage in professional-level activities as defined by NAFTA, which activities specifically require “at least a baccalaureate degree or appropriate alternate credentials demonstrating status as a professional.” The TN employment must fall within a NAFTA Schedule 2 profession. 8 C.F.R. § 214.6(b); 8 C.F.R. § 214.6(c);

    5. H-3: This visa classification may be utilized by a U.S. business or individual seeking to bring foreign nationals into the U.S. for the purpose of engaging them in an established training program for up to 2 years. The U.S. employer must demonstrate that similar training programs are not available in the foreign national’s home country. Although the training program may consist of a combination of classroom and on-the-job training, any productive employment must be “incidental” to the training program. 8 C.F.R. § 214.2(h)(7)(ii)(A);

    6. E-1: This is a visa classification available to applicants from one of the enumerated countries with which the U.S. maintains a treaty of trade. Applicants must be sponsored by a U.S. employer which is owned at least 50% by national(s) of the foreign national’s treaty country. (A publicly traded company is generally considered to have the nationality of the country in which its stock is listed and traded on a public stock exchange.) The U.S. employer must demonstrate substantial trade in services or technology between the home country and the U.S., while the employee must be entering the U.S. to perform supervisory or executive duties or have skills which are “essential to the operation of the enterprise.” 8 C.F.R. § 214.2(e)(3);

    7. E-2 (commonly known as an Investor Visa): Like the E-1, this is a visa classification available to applicants from one of the enumerated countries with which the U.S. maintains a treaty of commerce. Applicants must be entering the U.S. to develop and direct the operations of an enterprise in which the individual has substantially invested (or is in the process of investing) monies to create a business in the U.S. that is not marginal and has a reasonable growth trajectory.

    As set forth above, the H-1B visa category, in its current form, is not without its issues. Until such time that Congress realizes that the arbitrary quota on H-1B visas serves no useful purpose, U.S. employers, including in-house counsel and human resources departments, should consider more creative, perhaps less conventional alternatives, to retain and attract a more diverse, intelligent and energetic workforce.

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  • 03Feb
    H-1B Visa News, OPT, USCIS News Comments Off on Alert! Plan Now For New H-1B Petitions To Be Filed On April 1, 2015! Annual H-1B Quota Expected To Be Exhausted Within First Week Of Filing

    H-1B “cap season” is upon us! This alert is a reminder of the rapidly approaching April 1, 2015 “deadline” for the filing of H-1B for Fiscal Year 2016 which starts on October 1, 2015.

    Given the pent-up demand, we fully expect the cap to be reached on the first day of April. USCIS will, as usual, accept petitions during the first five (5) business days; i.e., through April 7, 2015. Once the H-1B cap has been reached, employers will be unable to file new cap-subject H-1B petitions for a full year, until April 1, 2016. As such, we strongly encourage you to identify any employees who may require H-1B sponsorship and contact us as soon as possible to begin preparing your H-1B petitions for a timely April 1 filing.

    ACTION NEEDED: Assess Your Cap-Subject H-1B Needs:

    H-1B visas are available for specialty occupations requiring the attainment of a bachelor’s degree or its equivalent. For current or transferring employees, employers should consider who might need to file an H-1B for Fiscal Year 2016:

    • Identify F-1 or J-1 employees (working under their Optional Practical Training Employment Authorization Document) who will need a change of status to H-1B;
    • Determine whether any TN employees (NAFTA professionals) might want an H-1B to be eligible to apply for adjustment of status to a permanent resident;
    • Consider whether you employ someone in L-1B status (intra-company transferees with specialized knowledge) who might need to switch to an H-1B to gain an additional year of status and
    for whom a change of status is a necessary component to planning your business’ long-term strategy of pursuing lawful permanent residence for that employee;
    • Review those employees who are on expiring O visas which are renewable in only one year increments (as compared to the three year visa period under an H-1B); and
    • Identify potential candidates who are abroad and have not been previously counted against the H-1B cap.

    PLEASE NOTE: the H-1B cap applies only to “new” H-1B petitions. As such, current H-1B nonimmigrant professionals seeking to file an extension of stay or a transfer petition are not subject to the cap.

    The Importance of Early Preparation:

    Cap subject petitions are accepted on a “first-come-first-serve” basis. Any petitions filed after the cap is met will be returned and cannot be re-filed until the following year.

    To assure a timely petition filing, Labor Condition Applications (“LCAs”) should be submitted to the DOL by the beginning of March, and petitions should be ready for filing before April 1, 2015. Gathering the necessary supporting documentation and preparing the H-1B visa filing materials can be time consuming. Preparation includes assembling background and education documents, drafting and signing letters and forms, and submitting an LCA with the Department of Labor for certification. Early preparation is therefore essential.

    If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.

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  • 24Dec
    Adjustment of Status, DOL News, Global Immigration, Green Card News, I-485, Immigration Reform, PERM, USCIS News, USCIS Policy Updates Comments Off on Immigration Developments for Highly Skilled Workers: Pre-Registration of Adjustment of Status

    On Thursday, November 20, along with President Obama’s announcement regarding his Executive Action on Immigration, Department of Homeland Security (“DHS”) Secretary Jeh Charles Johnson issued a memo to the Directors of U.S. Citizenship and Immigration Services (“USCIS”) and Immigration and Customs Enforcement (“ICE”) directing the agencies to take action on the President’s announcements to improve the employment-based immigration system. The DHS memo provides a general overview of proposed changes the government wishes to implement, relating to skilled immigration, in order to address some longstanding issues and problems in our antiquated business immigration system. For purposes of this article, the authors will focus on the proposal to increase foreign worker portability by permitting certain skilled workers to pre-register for adjustment of status.

    Under Secretary Johnson’s directive, USCIS is expected to develop new regulations or otherwise issue guidelines that will allow foreign nationals with an approved second step (employment-based immigrant visa petition, Form I-140) to pre-register for adjustment of status in order to obtain the benefits of a pending Application for Adjustment of Status (Form I-485) even if an immigrant visa number is not currently available for the foreign worker. This proposal will not only benefit the employee who is the principal green card applicant by permitting the principal to apply for an employment authorization document and travel document, but it will also enable his/her dependents to obtain employment authorization and immediately enter the U.S. labor market.

    Of equal or greater importance, once the last step (Form I-485) has been pending for at least 180 days, the principal is then permitted to move into another position with his/her employer and even port to another employer so long as the move is to a similar occupation. In anticipation of pre-registration of adjustment of status, applicants should gather the documentation required to be filed with the I-485 application:

    1.) Birth certificates for the principal and each dependent family member. Affidavits of birth (in lieu of birth certificates) may be used for those instances when a birth certificate is not obtainable from the applicable government authority;

    2.) Marriage certificate (if a spouse is applying); and

    3.) Copy of most recent tax return and paystubs of principal applicant for the last 2 months.

    In addition, once the guidelines are issued and the filing of Form I-485s are permitted, each applicant and family member should arrange for a medical examination by a civil surgeon appointed by DHS.

    Stay tuned for further developments relating to the implementation of the Executive Order.

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  • 03Dec
    Green Card News, H-1B Visa News, Immigration Reform, L-1 Visa News, OPT, USCIS News, USCIS Policy Updates Comments Off on President Obama’s Executive Actions on Immigration – Navigating New Policies Supporting U.S. High-Skilled Businesses and Workers

    On Thursday, November 20th 2014, along with President Obama’s announcement regarding his Executive Action on Immigration, Department of Homeland Security (“DHS”) Secretary Jeh Charles Johnson issued a memo to the Directors of U.S. Citizenship and Immigration Services (“USCIS”) and Immigration and Customs Enforcement (“ICE”) directing the agencies to take action on the President’s announcements to improve the employment-based immigration system (hereinafter “DHS memo”). The DHS memo provides a general overview of proposed changes the government wishes to implement, relating to skilled immigration, in order to address some longstanding issues and problems in our antiquated business immigration system. The following is a brief overview of the most pertinent of the proposed measures:

    1. Reform Optional Practical Training (“OPT”) for Foreign Students and Graduates of U.S. Colleges and Universities: Most foreign students on F-1 (student) visas are eligible for 12 months of post-graduate OPT work authorization as long as the work experience that they seek is in a field that relates to their program of study. Under current regulations, OPT can be extended an additional 17 months for a total of 29 months of work authorization for U.S. college graduates with degrees in designated science, technology, engineering and mathematics (“STEM”) fields. The proposed regulatory changes will seek to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign graduates. Finally, it is proposed that certain labor market protections, which could include a prevailing wage requirement, will be imposed in order to safeguard the interests of U.S. workers in related fields.

    2. Pre-Registration for Adjustment of Status: With the emphasis on facilitating foreign worker portability, USCIS is expected to develop new regulations that will allow foreign nationals with an approved employment-based immigrant visa petition (Form I-140) who are caught in the immigrant visa quota backlogs to pre-register for adjustment of status in order to obtain the benefits of a pending Application for Adjustment of Status (Form I-485), notwithstanding that their respective priority dates are not current. This proposal will not only benefit the employee who is the principal green card applicant by permitting the principal to apply for an employment authorization document and travel document (while also allowing the principal to port to another employer after the I-485 is pending for 180 days), but it will also enable his or her dependents to obtain employment authorization and immediately enter the U.S. labor market.

    3. Expanded Green Card Portability: USCIS is expected to provide additional guidance regarding the definition of a “same or similar” job for purposes of expanding eligibility for a green card applicant to be promoted to a new job within the same company or, alternatively, to port to a new job with a new employer. This guidance will help not only those in the green card process who wish to change employers, but also those employees who move to a different job with the same employer.

    4. Proposed Rule to Extend Work Authorization to Certain H-1B Spouses: While this was not specifically addressed in the DHS memo, it is rumored that the proposed rule published in the Federal Register in May 2014 to extend work authorization to the H-4 spouses of H-1B specialty occupation workers with an approved employment-based immigrant visa petition (Form I-140) may also be finalized in the next few months.

    5. Bringing Greater Consistency to the L-1B Visa Program: The L-1 visa program is a common vehicle used by multinational companies to transfer executive, managerial or “specialized knowledge” personnel to the U.S. from locations outside of the U.S. Noting the “vague guidance and inconsistent interpretation” of the term “specialized knowledge,” Secretary Johnson directed USCIS to issue a policy memorandum that provides clear, consolidated guidance on what constitutes “specialized knowledge” for L-1B visa eligibility.

    6. Promoting Research and Development in the United States: The DHS memo recognizes that the current immigration laws do not meet the needs of foreign entrepreneurs and calls for enhanced and expanded options under the law to encourage foreign entrepreneurs to invest, create jobs and generate revenue in the U.S., including a broader application of the “public interest” parole authority and “national interest” waiver of the labor market test and job offer requirements for green card status.

    It is important to note that the details and timing for implementing many of the above measures remains uncertain, since many of them may require a change in regulations with a notice and comment period. It also remains to be seen whether Congress will act on comprehensive immigration reform, which could have the effect of preempting some of the executive actions taken by President Obama.

    Please stay tuned for additional information on the pursuit of President Obama’s Executive Order as we plan to issue additional advisories in the future as key components of the executive action are implemented.

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