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30Jan

Visa Reciprocity Changes for Australia

Department of State Comments Off on Visa Reciprocity Changes for Australia

On December 23, 2019, without prior notice, the U.S. Department of State (“DOS”) published significant changes to the Visa Reciprocity schedule for Australia, impacting both the validity period of certain visas as well as additional fees that are now required of applicants upon approval of their visa applications at the U.S. Embassies abroad. According to the DOS, “The United States strives to eliminate visa issuance fees whenever possible, however, when a foreign government imposes these fees on U.S. citizens for certain types of visas, the United States will impose a “reciprocal” fee on citizens of that country for similar types of visas.” This reciprocity arrangement also serves to shorten the validity periods of various nonimmigrant visas. Read full details here.

If you have any questions, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.
19Dec

Wishing All of You a Joyful Holiday and a Prosperous New Year

Firm News Comments Off on Wishing All of You a Joyful Holiday and a Prosperous New Year

In lieu of sending cards, we will be donating to the Community Food Bank of New Jersey in support of the “Lawyers Feeding New Jersey” program.
11Dec

Client Alert Update: H-1B Lottery for 2020 Registration Announcement

H-1B Visa News Comments Off on Client Alert Update: H-1B Lottery for 2020 Registration Announcement

Further to our recent Client Alert, U.S. Citizenship and Immigration Services confirmed through its announcement on December 6th, that employers seeking to file H-1B cap subject petitions must first electronically register the company and pay the associated $10 H-1B registration fee per H-1B candidate before filing a petition for the fiscal year 2021 H-1B cap.

According to the announcement, USCIS will open an initial registration period from March 1 through March 20, 2020.

* During this initial registration period, prospective employers or their authorized representatives must electronically submit a separate registration naming each employee for whom they seek to file an H-1B cap-subject petition.

* USCIS will then randomly select the number of registrations needed to reach the H-1B numerical allocations after the initial registration period closes, but no later than March 31, 2020.

* Prospective petitioners with lottery-selected registrations will be eligible to file a cap-subject petition only for the employee named in the selected registration.

Once the H-1B registration system has been implemented, and when registration is required, the agency will not consider a cap-subject petition properly filed unless it is based on a valid registration selection for the same beneficiary, and the appropriate fiscal year. Additionally, although petitioners can register multiple employees during a single online submission, duplicate registrations by an employer for the same beneficiary in the same fiscal year will be discarded. USCIS claims it will conduct outreach and training prior to the initial implementation of the registration system to allow the public the opportunity to familiarize themselves with the electronic registration process. USCIS will also provide guidance on how to use the registration system and prepare registrations before opening the registration system for the initial registration period.

DHS intends to publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration process.

For more information on the H-1B registration system, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.
06Dec

Client Alert: H-1B Lottery for 2020 A New Registration Process

H-1B Visa News Comments Off on Client Alert: H-1B Lottery for 2020 A New Registration Process

DHS recently published a final rule to establish an electronic registration program for H-1B petitions that requires a $10 registration fee per H-1B candidate for the April 2020 cap season (FY 2021). The primary purpose of the regulation is to conduct the lottery in such a matter so that employers will know in advance of filing a full H-1B petition whether the candidate has been selected in the lottery, which will then necessitate submitting a complete H-1B filing for each selected candidate with USCIS within 90 days of receiving such notice.

It is important to note that, consistent with prior rules, multiple employers (e.g. affiliate companies) will be eligible to submit a candidate registration on behalf of the same employee, so there is a new level of strategy that can be considered for certain “must have” employees who may be facing difficult situations, including those having to leave the United States due to impending post-completion OPT expirations and/or those engaging in risky full-time CPT to “buy time” for a possible H-1B cap selection.

While we await confirmation whether or not the H-1B registration program will be active for the upcoming cap season, we are advising clients to anticipate as if the new program will be implemented. Read additional details here.

If you have any questions , please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.
27Sep

Thinking Outside the Box: U.S. Immigration Options for Cybersecurity Experts

O-1 Visas Comments Off on Thinking Outside the Box: U.S. Immigration Options for Cybersecurity Experts

Scott Malyk Lin Walker

A decade ago, very few people outside of the Information Technology (IT) industry knew what cybersecurity was or even considered it something worth worrying about. Many of us naively believed that with the right passwords, encryption software and firewalls, our data and information would be secure.

In recent years, however, our world has become far more technologically advanced and, as a consequence, technologically dependent. Nearly every occupation and industry has developed some use for artificial intelligence, a big data platform, or web-based application, whether it is banking, retail, pharmaceutical, medical, legal or agricultural. Most organizations that generate significant data store work product/files on servers or in the “cloud”. With the advent of e-commerce and electronic file storage, we can now share photos and documents as well as make financial transactions from our phones, computers, and other smart devices.

While these advances in technology have made our lives easier in many respects, they have also created significant opportunities for individuals and organizations to use the same technology to commit cybercrimes. Although cybersecurity is neither a new or emerging field, there has been something of a collective epiphany in the United States regarding the essential and significant role it plays in our everyday lives, particularly since 2016. Since that time, there have been daily reports of cybersecurity crimes, ranging from denials of service, to hacks and breaches of personal, financial and confidential information, to election meddling. Read full text here:

If you have any questions , please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.
25Sep

Employer Alert: On-Site Inspections for STEM OPT Employment

OPT, Worksite Enforcement Comments Off on Employer Alert: On-Site Inspections for STEM OPT Employment

There are recent reports that ICE has started to conduct on-site inspections for STEM Optional Practical Training (OPT) employment. According to DHS’s Study in the States website, the site visit will address how the salary of STEM OPT employees is determined, whether there is sufficient structure to provide supervision and training of the employee, and the nature of the employer/employee relationship at any third party worksites. The website states the following:

Site visits will be limited to checking information related to student STEM OPT employment and ensuring that students and employers are engaged in work-based learning experiences that are consistent with the information supplied on the student’s Form I-983.

As these compliance site visits are a new practice, it is important to refer back to the STEM OPT regulation preamble which describes the expected scope of a DHS site visit:

The employer site visit is intended to ensure that each employer meets program requirements, including that they are complying with their attestations and that they possess the ability and resources to provide structured and guided work-based learning experiences outlined in students’ Training Plans. Site visits will be performed at the discretion of DHS either randomly or when DHS determines that such an action is needed. Based on previous on-site-reviews to schools, DHS estimates that an employer site visit may include review of records and questions for the supervisor, and will take five hours per employer.

At this point, based on the few inspections conducted, the length of the site visits appears to be in the range of 1-2 hours rather than 5 hours. ICE has typically given two days’ notice by emailing the STEM OPT worker’s manager. We do not expect ICE to give notice if the site visit is based on a complaint. ICE’s SEVP officers have conducted the site visits thus far. Read more:

If you have any questions , please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.
24Sep

HR/Legal Alert – DHS Moves Closer to Launching its H-1B Cap Registration System

H-1B Visa News Comments Off on HR/Legal Alert – DHS Moves Closer to Launching its H-1B Cap Registration System

The Department of Homeland Security (“DHS”) recently moved closer to launching its new electronic registration system for allocating the annual limit on H-1B cap cases. The current procedures require employers to prepare and submit fully documented cases without any assurance that those cases will be selected within the H-1B cap. DHS then returns the many H-1B cases that are not selected. This burdensome procedure may finally be coming to an end. DHS is in the midst of making the following bold changes to the H-1B cap selection procedures. Read details here.

If you have questions in connection with any of the foregoing, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.
22Aug

Immigration Law Partners Recognized for Inclusion in Best Lawyers 2020

Firm News Comments Off on Immigration Law Partners Recognized for Inclusion in Best Lawyers 2020

Anthony Siliato and Scott Malyk were recognized by their peers for inclusion in The Best Lawyers in America© 2020 Edition, in the Immigration Law practice area. Since it was first published in 1983, Best Lawyers® has become universally regarded as the definitive guide to legal excellence.

Best Lawyers lists are compiled based on an exhaustive peer-review evaluation. Almost 94,000 industry leading lawyers are eligible to vote (from around the world), and Best Lawyers has received more than 11 million evaluations on the legal abilities of other lawyers based on their specific practice areas around the world. For the 2020 Edition of The Best Lawyers in America©, 8.3 million votes were analyzed, which resulted in more than 62,000 leading lawyers being included in the new edition. Lawyers are not required or allowed to pay a fee to be listed; therefore inclusion in Best Lawyers is considered a singular honor. Corporate Counsel Magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”
19Jul

USCIS Confirms Our Suspicions That The Form I-539 Is No Longer Eligible for “Courtesy” Premium Processing

USCIS News Comments Off on USCIS Confirms Our Suspicions That The Form I-539 Is No Longer Eligible for “Courtesy” Premium Processing

In March 2019, USCIS published a revised Form I-539, Application to Extend/Change Nonimmigrant Status, and new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status, both with an edition date of 2/4/19. As of March 22, 2019, USCIS began accepting only the revised Form I-539 with an edition date of 2/4/19, and began rejecting any Form I-539 or Form I-539A with an edition date of 12/23/16, or earlier. The revised Form I-539 has significant changes, including the requirement that every applicant pay a biometrics fee and attend a biometrics appointment, regardless of age.

With the addition of this new biometric requirement for all I-539 applicants, on March 1, 2019, USCIS indicated during a stakeholder teleconference that USCIS may no longer continue its prior “courtesy practice” of offering premium processing adjudicative services to I-539 applications filed concurrently with a qualifying I-129 petition. Rather, I-539 applications are now being separated from the I-129 petition and follow the regular I-539 processing queue, as I-539 applications are no longer eligible for such premium processing “courtesy”.

According to USCIS, its longstanding courtesy practice of premium processing I-539 applications filed concurrently with a qualifying I-129 petition could not continue because it generally takes at least three weeks for the I-539 biometrics to be completed, such that USCIS cannot meet the 15-day premium processing timeframe. With that in mind, upgrades to premium processing the I-129 petition and the concurrently filed I-539 application post-filing (i.e.; after the I-539 biometrics are completed), will also not work. Given that USCIS has no obligation under the regulation to adjudicate the I-129 and I-539 concurrently, the I-539 application may take substantially longer to process than the principal I-129 petition. As of the date of his writing, USCIS is currently adjudicating I-539s in about 4 months. This, of course, will also serve to delay any I-765 applications seeking initial and renewal EADs for qualifying H4 spouses, which I-765 applications are taking approximately 5-6 months to be adjudicated at present.

Given the lengthy processing times, depending on timing, travel restrictions, visa processing issues, driver’s license renewals, and other related concerns, as an alternative to filing the I-539 application with USCIS, derivatives may resort to processing a nonimmigrant visa at a U.S. consulate abroad after the I-129 petition is approved, in order to avoid processing delays associated with the adjudication of Form I-539 by USCIS. In this way, an applicant may file an H-4 EAD (if applicable) immediately upon his/her re-entry into the United States as an H-4. Most importantly, early preparation of these cases is essential. Internally, we have increased the time in which our automatic reminders are sent to our HR/Legal team partners to 7-8 months prior to current expiration for your H-1B and L-1 employees (depending on each individual scenario), in an effort to give our clients more time to make internal decisions related to proceeding with H-1B/L-1 renewals, with the aim of filing petitions seeking extensions of stay at the earliest possible date we are permitted to file them under the regulation.

If you have any questions, please contact Anthony F. Siliato or Scott R. Malyk. And be sure to follow us on Twitter and LinkedIn.
12Jul

HR/LEGAL ALERT: Impact Of Visa Retrogression On Your L-1 Employees

Department of State, L-1 Visa News Comments Off on HR/LEGAL ALERT: Impact Of Visa Retrogression On Your L-1 Employees

The August Visa Bulletin was just released by the U.S. Department of State. Unfortunately, there are some notable retrogressions in employment-based (EB) categories, with EB-3 India moving to January 1, 2006 (from July 1, 2009) and EB-2 and EB-3 from all other countries retrogressing to January 1, 2017 (from no backlog) and July 1, 2016 (from no backlog), respectively.

Perhaps most notable is the EB-1 (first preference) category, where the cut off dates for all countries of chargeability (except India) have retrogressed substantially, to July 1, 2016, representing a backlog of a full 3 years (from April 22, 2018). EB-1 India remains oversubscribed at a January 1, 2015 cutoff date (no movement).

If the EB-1 backlogs continue to expand over the coming months, or even remain static, it will create collateral damage for those EB-1 executives and managers who don’t have the benefit of an additional 3 or 4 years remaining in L-1A status to wait to file the final step of their EB-1.3 green card process. It is also advisable to keep a closer eye on the max-out date of L-1B specialized knowledge workers in light of the retrogression of the EB-2/EB-3 categories.

On that basis, we are running analytic reports for each of our business clients to identify L-1 employees who may be impacted. We will compile a list of those employees and will contact HR to discuss both near-term and longer-term strategies for affected employees. In addition to the recommendation that we “wait and see” what happens with the backlogs at the start of the next fiscal year on October 1, 2019, one of our near-term recommendations is to add these L-1 employees to the H-1B cap filing list for the upcoming fiscal year on April 1. Depending on the individual, we may also want to consider alternative visa classifications, including the O-1, E-3 or TN. One of our longer-term recommendations may be to consider starting a PERM-based green card process for certain L-1 individuals, depending upon country of origin and other factors.

While the August Visa Bulletin itself states this may only be a temporary retrogression due to increased demand, there is simply no guarantee that the backlogs will return to “normal” upon the start of the new fiscal year. On that basis, we are working to formulate a plan for each of your employees who is potentially affected by these retrogressions.

If you have any questions about visa retrogression, or would like to discuss appropriate alternatives to the L-1 category, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.