Corporate Immigration Law News

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!

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.