Potential Immigration Changes in 2019

 

The Trump administration’s future immigration intentions were recently announced in their semi-annual Unified Agenda. The Unified Agenda lists possible regulations under development by federal agencies for the coming year. The announcement indicates the administration’s plans to impose tighter restrictions on employment-based immigration benefits, such as the H-1B, H-4, and Optional Practical Training (OPT) for F-1 students.

The agenda specifies the administration’s intent to make the following policy changes in connection with Trump’s “Buy American, Hire American” executive order:

  • H-1B Eligibility: Redefining what a “specialty occupation” is for H-1B visa purposes to “increase the focus on truly obtaining the best and brightest.” The proposal would also “revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages.” This includes “additional requirements to ensure employers pay appropriate wages to H-1B visa holders.” The rule would also impose additional restrictions on H-1B dependent employers that rely on large H-1B workforces and those employers who have H-1B employees working off-site.

  • H-1B LotteryRevising the H-1B visa lottery system to establish an electronic pre-registration program for cap-subject H-1B applicants.

  • H-4 Work Authorization: Elimination of the regulation that allows H-4 visa holders (spouses of H-1B visa holders) to apply for work authorization. The Trump administration has already proposed a rule to remove this Obama rule which has provided work permits to thousands of H-4 spouses.

  • Fee Increases:  Increasing USCIS filing fees for employers and applicants filing for employment-based immigration benefits (including H-1B registration fees) and international students and U.S. universities.

  • Periods of Stay for F-1 Students: Limiting the maximum periods of stay for F-1 students and other nonimmigrants.

  • Adjustment of Status: Changing the process and procedures for foreign nationals to adjust from nonimmigrant status to lawful permanent resident status.

  • International Entrepreneur Rule:  Eliminating President Obama’s International Entrepreneur Rule which allowed qualifying foreign startups and entrepreneurs to apply for U.S. work authorization to grow their startup and create jobs.

These announcements do not currently modify or rescind any of the above mentioned immigration programs, and any changes to immigration policy can only be accomplished through notice and comment of proposed rulemaking in the federal register. This means that individuals and companies that may be affected by potential policy changes will have an opportunity to submit comments to the government before the policy becomes effective. 

As always, individuals and employers who may impacted by any of these potential changes should contact us with questions on how to best prepare.

Didn’t Get An H-1B Visa? Here Are Your Alternative Immigration Options.

U.S. Citizenship & Immigration Services (USCIS) has announced that it reached the annual 85,000 H-1B visa cap in the first five days of April 2019.  Specifically, USCIS received 201,011 H-1B cap cases (an increase from last year), which means that once again, USCIS will conduct a computer-generated lottery in the coming weeks to determine which petitions they will process. Employers who have their petitions selected in the lottery will receive a receipt notice from USCIS, and if approved, can have their employees begin working for them in H-1B status on October 1, 2019. Petitions that are not selected in the lottery will be returned to the employers with their money back.

USCIS will continue, however, to accept H-1B petitions year-round from employers who are exempt from the H-1B cap (such as universities, nonprofits affiliated with institutions of higher education, or nonprofit research organizations), as well as petitions to extend the status of those currently in H-1B status or for those in H-1B status seeking to change employers.

While no more new H-1B visas will be available for employers and foreign nationals seeking to apply in 2019, many candidates may be eligible for other alternative visa options. The following visa categories are available throughout the year, without numerical caps, for qualifying foreign nationals:

  • L-1 Visa: For intracompany transferees who have worked for a foreign entity for one year and are seeking to transfer to a U.S. subsidiary, affiliate, parent, or branch office in the U.S. in a managerial, executive, or specialized knowledge capacity

  • E-1/E-2 Visa: For international investors or traders from certain treaty countries looking to engage in substantial trade between the U.S. and their foreign country or to develop and direct the operations of an enterprise in which the foreign national has invested. The E-1/E-2 visa is a great option for foreign entrepreneurs seeking to work in an essential capacity for their U.S. entity.

  • O-1 Visa: For foreign nationals of extraordinary ability who have achieved national and international recognition for extraordinary achievements in their field of endeavor.

  • TN Visa: For Canadian and Mexican citizens employed in certain professional categories seeking to engage in U.S. employment. Examples of qualifying TN professional occupations include, but are not limited to Engineer, Accountant, Architect, Computer Systems Analyst, Geologist, Geophysicist, Graphic Designer, Management Consultant, Scientific Technician, Engineering Technicians, and many occupations in the medical and allied health field.

  • H-3 Visa: For foreign nationals coming to the U.S. to engage in a course of training.

  • E-3 Visa: For Australian citizens who will be employed in a specialty occupation in the U.S. (similar requirements to the H-1B visa).

Watch our immigration videos for additional information on these visas and to learn more about the eligibility requirements. As always, if you have questions about the H-1B visa cap or any of these work visa options, please contact our office.

A Guide For Winning The H-1B Visa Lottery

Starting April 1, 2019, U.S. Citizenship and Immigration Services (USCIS) will begin accepting this year’s H-1B visa petitions. As in years past, if USCIS receives more than the available 85,000 H-1B visas in the first few days of April, they will use a computer-generated random lottery to select the petitions they will process.  Even though the H-1B lottery selection process will change this year, based on the number of petitions received in the first few days of April last year (over 190,000) and the previous year (over 199,000), combined with the current market demand for high-skilled labor and reports of possible changes to visa programs in the future, many our anticipating that USCIS will receive over 200,000 H-1B petitions in the first few days of this April. 

Accordingly, time is running out for employers to timely prepare their H-1B petitions for submission to play in this H-1B lottery on April 1st. Generally, it takes at least 10-14 days to prepare and file an H-1B petition, due to the prerequisite filing requirements of the Labor Condition Application (LCA), which takes up to 7 business days to certify. Therefore, if you are responsible for your businesses' immigration planning and processing and you have already identified your H-1B candidates, please initiate the H-1B visa process in the next two weeks to ensure it is timely filed. 

In spite of recent reports of proposed changes to the H-1B work visa program by the Trump administration, the H-1B filing process and procedures will remain largely the same as it has in previous years. Nevertheless, as indicated by the massive increase of Requests for Evidence (RFE) and denials of H-1B petitions issued by USCIS over the past year, employers and foreign nationals should be prepared to evidence the following, in order to increase their chances of getting their visa petitions approved:

  1. Document the specific scope and educational requirements for the position to show that the position is one which requires a Bachelor’s degree as a minimum to enter the occupation.

  2. Review the prevailing wage rates for the occupation through the Department of Labor’s Wage Surveys to determine whether the wage level is appropriate for the professional position you are hiring for.

  3. Document the nexus between the foreign national’s degree and the occupation they will be hired for.

Needless to say, the H-1B visa petition can be a technical and cumbersome application to file.  Working with qualified counsel will help to ensure technical mistakes are avoided and that a comprehensive petition will have the best chance at winning in the H-1B visa lottery.  If you have any questions about the H-1B visa process, please don’t hesitate to contact me.

H-1B Visa Lottery Changes & The Return of Premium Processing

In follow up to last month’s announcement of proposed changes to the H-1B visa selection process by U.S. Citizenship & Immigration Services (USCIS), the Department of Homeland Security has finalized its rule reversing the order in which USCIS will select H-1B cap-subject petitions in the H-1B visa lottery. 

While the H-1B cap will remain at 85,000, this new regulation will reverse the lottery order in which USCIS selects H-1B petitions for adjudication, in order to increase the amount of H-1B visas awarded to foreign nationals with U.S. master’s degrees and higher.  Under the previous lottery system, USCIS would first conduct a lottery for 20,000 H-1B visas for individuals with a U.S. master’s degrees and higher (the “advanced degree cap”), and then those individuals with advanced degrees who were not selected in that lottery were added to the pool of 65,000 H-1B visas (the “regular cap”), for another chance to be selected with individuals who only have a bachelor’s degree.  In accordance with this new rule, USCIS will now conduct the regular cap lottery first and include all advanced degree holders.  Those with advanced degrees not selected in the“regular cap” will thereafter be placed in a second lottery (the “advanced degree cap”), if there are enough advanced degree holders to meet the advanced-degree lottery.

In accordance with the Trump administration’s previous announcements for employment-immigration reforms, USCIS believes this change to the lottery system will increase the chances of H-1B visas being awarded to individuals with U.S. master’s degrees and higher.   

While USCIS announced that this change to the H-1B visa selection process will be implemented for this year’s H-1B visa lottery, USCIS will be postponing its proposed mandatory online registration for U.S. employer’s filing H-1B petitions.  As such, employers and foreign nationals should be preparing their H-1B visa petitions NOW (as they have done in previous years) in order to timely have those petitions filed on April 1st.

Additionally, USCIS announced this week they have resumed “premium processing” for all H-1B visa petitions that remain pending from the April 2018 lottery.  USCIS had temporarily suspended premium processing for most H-1B petitions last year, but has removed the suspension, as of now, for only H-1B visa petitions that remain pending from the April 2018 lottery.  While premium processing is still currently unavailable for H-1B transfers, amendments, and extensions with different employers, we may see premium processing for these cases resume around February 19th.

Employers seeking to hire foreign national employees this year should assess their upcoming workforce needs and identify those who will require H-1B visa sponsorship NOW. These individuals may include:

·       New graduating foreign students in the U.S.

·       Overseas individuals seeking to start work in the U.S.

·       Foreign individuals in the U.S. already working under a different nonimmigrant status for a different employer and are seeking to change jobs

Failure to file your H-1B petition on April 1st may jeopardize your chance at securing an H-1B visa for your employee. After the 2019 H-1B visas are gone, employers will have to wait until April 1, 2020 to file H-1B petitions again, and foreign employees may lose their lawful status and authorization to work. The clock is ticking…don't delay!

If you have any questions about the H-1B visa process, contact me.

New H-1B Visa Lottery Process

U.S. Citizenship & Immigration Services  (USCIS) has announced a proposed rule that will dramatically shift how H-1B visa petitions are selected in its H-1B cap lottery selection system.  The proposed regulation would create a mandatory online preregistration system for employers to register each individual’s H-1B cap petition and reverse the order in which USCIS selects H-1B petitions under the H-1B cap and advanced degree exemptions.

Currently, the H-1B visa allows U.S. employers to temporarily employ foreign nationals with a bachelor’s degree or higher in occupations that require a theoretical and practical body of highly specialized knowledge.  Each year, on April 1st, USCIS makes 85,000 H-1B visas available.  If USCIS received more than 85,000 petitions, they institute a computer-generated lottery system to randomly select the petitions that will be adjudicated. 

Employer Pre-Registration System

Under this proposed rule, USCIS would create a mandatory online preregistration process whereby those employers who intend to file H-1B cap petitions would be required to submit an online registration for each potential H-1B beneficiary, during a designated registration period before April 1st.  USCIS would then conduct a lottery and select registrations to meet the H-1B visa cap.  Those registrations that are selected will be notified and given a 60-day window in which to file their H-1B visa petition on behalf of the foreign worker named in the original registration.  According to the proposal, an employer could potentially wait until they have been notified of selection before filing a Labor Condition Application and preparing the corresponding H-1B petition for the intended beneficiary.

The online registration would request information about the employer (i.e. company name, address, Federal Employer Identification Number, etc.), along with information about the intended H-1B worker (i.e. name, date of birth, citizenship, passport, and education credentials).  There will be no fee to register an H-1B worker, but employers would be limited to one registration per individual per year.

The preregistration period would begin at least 14 days before April 1st and last for at least two weeks.  USCIS would announce the dates for the preregistration period online at least 30 days before it starts.   

New Lottery Selection Process

While the H-1B cap will remain at 85,000, USCIS intends to reverse the lottery order in which it selects H-1B petitions for adjudication, to increase the amount of H-1B visas awarded to foreign nationals with U.S. master’s degrees and higher.  Currently, USCIS first conducts a lottery for 20,000 H-1B visas for individuals with a U.S. master’s degrees and higher (the “advanced degree cap”).  Those individuals with advanced degrees not selected in that lottery are added to the pool of 65,000 H-1B visas (the “regular cap”), for another chance to be selected with individuals who only have a bachelor’s degree.  Under the proposed rule, USCIS would conduct the regular cap lottery first and include all advanced degree holders.  Those with advanced degrees not selected in the regular cap would be placed in a second lottery, if there are enough advanced degree holders to meet the advanced-degree lottery.

In accordance with the Trump administration’s previous announcements for employment-immigration reforms, USCIS believes this change to the lottery system would increase the chances of H-1B visas to be awarded to individuals with U.S. master’s degrees and higher.   

Implementation

Currently, these are only proposed rule changes.  While USCIS has stated their intention to have these new rules in place before the April 1, 2019 H-1B visa season, the proposed regulations also would allow USCIS to temporarily suspend the registration process due to technical challenges with the registration process or online system.  In the meantime, employers and foreign nationals should submit their public comments on this proposal HERE, before January 2nd.

What Employers & Foreign Nationals Should Do Now

Regardless of whether USCIS will be able to implement these changes before the April 1st H-1B filing deadline, employers and foreign nationals should begin preparing H-1B petitions NOW for the possibility that they will need to submit their complete H-1B visa petitions on April 1st.   

For any questions on the H-1B visa process or these changes, please feel free to contact me.

Temporary Suspension & Increased Costs for "Premium Processing"​ of Visas

U.S. Citizenship & Immigration Services (USCIS) has announced two major changes to their "premium processing" programs, which allows employers and foreign nationals to pay an optional USCIS filing fee to guarantee a response on their petition within 15 days.  The first announcement is an increase in the premium processing fee.  Beginning October 1, 2018 the premium processing fee will increase from $1,225 to $1,410.  

USCIS' second announcement is an extension of their ongoing suspension of “premium processing” for most H-1B visa petitions until February 19, 2019.  USCIS had previously announced that they were temporarily suspending premium processing for new, cap-subject H-1B visa petitions until September 10, 2018.  This new announcement, however, extends the previously annouced temporary suspension through February 19, 2019.  Additionally, beginning September 11, 2019, USCIS will also stop accepting premium processing for any H-1B petition seeking new employment, transfer (i.e. “change of employer”), or amendment which are filed with either the Vermont or California Service Centers until February 19, 2019.

USCIS will, however, continue to accept premium processing for H-1B petitions filed at the Nebraska Service Center by an employer requesting a “continuation of previously approved employment without change with the same employer,” and premium processing for H-1B cap-exempt petitions (such as university, nonprofit research institutions, government research organizations) which are filed only with the California Service Center.

While this temporary suspension of premium processing now impacts most H-1B petitions, it does not affect premium processing for other nonimmigrant visa petitions (including L-1, O-1, TN, and others).  Additionally, USCIS will continue to accept premium processing for H-1B petitions filed prior to September 11, 2018 (when the suspension goes into effect).

This announcement is likely to have a major impact on U.S. employers, international students, and most immigrants seeking U.S. work visas.  First, this news likely means that USCIS processing times for all USCIS filings may increase, causing delays in visa issuance.  Even though, in cases of an H-1B transfer, an H-1B employee can begin working with a new employer upon the filing of the transfer with USCIS, many H-1B employees prefer to wait until they actually receive their H-1B transfer approval notice from USCIS before starting employment with a new employer.  As a result, this may cause delays for employers seeking to onboard new employees.

Additionally, international students currently availing H-1B “cap gap” extensions of their OPT and still awaiting USCIS approval of their cap-subject H-1B petition will need to be mindful of their authorized stay in light of USCIS’ recent unlawful presence memorandum for foreign students.  

In light of this news, H-1B employers and foreign nationals seeking to file any H-1B petitions should plan accordingly.  For assistance in preparing for these or delays, please feel free to contact us.

Immigration Policy Changes for Foreign Students & Exchange Visitors

U.S. Citizenship & Immigration Services (USCIS) has recently issued two updates that may have major consequences for foreign students and exchange visitors.

Most recently, USCIS issued a policy memorandum which changes the way USCIS will interpret and calculate unlawful presence for F-1 and J-1 visa holders (including their dependents).  Generally, a foreign national who remains in the U.S. beyond the expiration date of their I-94 Arrival/Departure Record begins to accrue unlawful presence, and in certain circumstances, may be subject to a 3-year or 10-year bar to re-admission to the United States.  Under the previous policy, however, foreign national students and exchange visitors who are granted duration of status (D/S) would not begin to accrue unlawful presence until either USCIS made a formal determination that a status violation had occurred or an immigration judge ordered a foreign national deported.

Under the new policy, starting August 9, 2018, F-1 and J-1 visa holders will begin to accrue unlawful presence on the earliest of the following:

  • The day after the student/exchange visitor no longer pursues the course of study or authorized activity, or the day after the person engages in unauthorized activity
  • The day after the grace period, after completing the course of study, program, or practical training (OPT/CPT)
  • The day after the person’s Form I-94 Arrival/Departure Record expires;
  • The day after an Immigration Judge orders the person deported or removed.

Simply put, this new policy, will have a dramatic impact on F-1 and J-1 nonimmigrants who are not vigilant with respect to maintaining valid status and/or are engaging in “unauthorized activity.”  

Additionally, last month, USCIS updated its website regarding STEM OPT extensions , which allow F-1 STEM gradates to obtain an additional 24 months of Optional Practical Training (OPT) work authorization to work for employers that participate in the E-Verify program.  The new USCIS guidance no longer permits students to engage in STEM OPT at third party worksite locations (even if the employer maintains the requisite employer-employee relationship with the STEM worker).

This new guidance changes previous policy which only required the student be a bona fide employee of the employer signing the I-983 training plan.  Now, any employees performing duties at sites not controlled by the E-Verify employer could risk being in violation of their status.

These updates are very nuanced and complex, especially when it comes to when and whether someone is in violation of their status or engaged in unauthorized activities.  As always, if you have questions on these issues or how to maintain status, please don’t hesitate to contact me

H-1B Visa Cap Met. What Are Your Alternative Immigration Options?

U.S. Citizenship & Immigration Services (USCIS) has announced that it reached the annual 85,000 H-1B visa cap in the first five days of April 2018.  Specifically, USCIS received 190,098 H-1B cap cases (a 4% drop from last year), which means that once again, USCIS will conduct a computer-generated lottery in the coming weeks to determine which petitions they will process. Employers who have their petitions selected in the lottery will receive a receipt notice from USCIS, and if approved, can have their employees begin working for them in H-1B status on October 1, 2018. Petitions that are not selected in the lottery will be returned to the employers with their money back.

USCIS will continue, however, to accept H-1B petitions year-round from employers who are exempt from the H-1B cap (such as universities, nonprofits affiliated with institutions of higher education, or nonprofit research organizations), as well as petitions to extend the status of those currently in H-1B status or for those in H-1B status seeking to change employers.

While no more new H-1B visas will be available for employers and foreign nationals seeking to apply in 2018, many candidates may be eligible for other alternative visa options. The following visa categories are available throughout the year, without numerical caps, for qualifying foreign nationals:

  • L-1 Visa: For intracompany transferees who have worked for a foreign entity for one year and are seeking to transfer to a U.S. subsidiary, affiliate, parent, or branch office in the U.S. in a managerial, executive, or specialized knowledge capacity
  • E-1/E-2 Visa: For international investors or traders from certain treaty countries looking to engage in substantial trade between the U.S. and their foreign country or to develop and direct the operations of an enterprise in which the foreign national has invested. The E-1/E-2 visa is a great option for foreign entrepreneurs seeking to work in an essential capacity for their U.S. entity.
  • O-1 Visa: For foreign nationals of extraordinary ability who have achieved national and international recognition for extraordinary achievements in their field of endeavor.
  • TN Visa: For Canadian and Mexican citizens employed in certain professional categories seeking to engage in U.S. employment. Examples of qualifying TN professional occupations include, but are not limited to Engineer, Accountant, Architect, Computer Systems Analyst, Geologist, Geophysicist, Graphic Designer, Management Consultant, Scientific Technician, Engineering Technicians, and many occupations in the medical and allied health field.
  • H-3 Visa: For foreign nationals coming to the U.S. to engage in a course of training.
  • E-3 Visa: For Australian citizens who will be employed in a specialty occupation in the U.S. (similar requirements to the H-1B visa).

Watch our immigration videos for additional information on these visas and to learn more about the eligibility requirements. As always, if you have questions about the H-1B visa cap or any of these work visa options, please contact our office.

Potential Changes to High-Skilled Immigration Programs in 2018

The Trump administration’s future immigration intentions were recently announced in their semi-annual Unified Agenda. The Unified Agenda lists possible regulations under development by federal agencies for the coming year. The announcement indicates the administration’s plans to undo Obama administration immigration benefits and impose tighter restrictions on nonimmigrant visa categories, such as the H-1B, H-4, and Optional Practical Training (OPT) for F-1 students.

The agenda specifies the administration’s intent to make the following policy changes in connection with Trump’s “Buy American, Hire American” executive order:

  • H-1B Eligibility: Redefining what a “speciality occupation” is for H-1B visa purposes to “increase the focus on truly obtaining the best and brightest.” The proposal would also “revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages.” This includes “additional requirements to ensure employers pay appropriate wages to H-1B visa holders.” The rule would also impose additional restrictions on H-1B dependent employers that rely on large H-1B workforces and those employers who have H-1B employees working off-site.
  • H-1B Lottery: Revising the H-1B visa lottery system to establish an electronic pre-registration program for cap-subject H-1B applicants, and tweaking the electronic lottery selection process to award visas to the “most skilled or highest-paid petition beneficiaries.”  
  • H-4 Work Authorization: Elimination of the regulation that allow H-4 visa holders (spouses of H-1B visa holders) to apply for work authorization. The Trump administration has previously indicated its intent to remove this Obama rule which has provided work permits to thousands of H-4 spouses.
  • OPT for F-1 Students: Reforming the OPT program for foreign students (which allows international students to work in the U.S.) in order to reduce fraud and improve protections for U.S. workers who may be impacted by employment of foreign students. Plans include limiting student work opportunities and terminating Obama’s STEM-OPT extension rule, which provides extended work authorization for foreign students with U.S. STEM degrees, from 17 months to 24 months.  

These announcements do not currently modify or rescind any of the above mentioned immigration programs, and any changes to immigration policy can only be accomplished through notice and comment of proposed rulemaking in the federal register. This means that individuals and companies that may be affected by potential policy changes will have an opportunity to submit comments to the government before the policy becomes effective. The notice/comment process can typically take in excess of 6 months, which means the administration may not have enough time to enact changes to the H-1B visa program in time for this year’s filing season (which begins on April 2, 2018). 

As always, individuals and employers who may impacted by any of these potential changes should contact us with questions on how to best prepare.

H1B Visa Season Starts NOW

Even though we’ve just entered 2017, its time to start focusing on one of the most important dates of the entire year: April 3, 2017 - the date when U.S. Citizenship & Immigration Services (USCIS) will begin accepting new H-1B visa petitions. While that may still be several months away, the time to start getting the visa petition ready is NOW

Demand by U.S. employers for H-1B visas on behalf of “highly-skilled” foreign employees reached unprecedented levels last year and is expected to remain high this year. Because it is expected that the 85,000 available H-1B visas will be gone within the first week of April, U.S. businesses should file their H-1B visa petitions on April 3, 2017. Due to prerequisite filing steps which must be completed before the H-1B petition can be submitted to USCIS, employers should begin preparing their petitions now to ensure they are ready to submit on April 3rd.

Employers should assess their upcoming workforce needs and identify whether any foreign national employees will require H-1B visa sponsorship. These individuals may include:

  • New graduating foreign students in the U.S.
  • Overseas individuals seeking to start work in the U.S.
  • Foreign individuals in the U.S. already working under a different nonimmigrant status for a different employer and are seeking to change jobs

Failure to file your H-1B petition on April 3rd may jeopardize your chance at securing an H-1B visa for your employee. After the 2017 H-1B visas are gone, employers will have to wait until April 1, 2018 to file H-1B petitions again, and foreign employees may lose their lawful status and authorization to work. The clock is ticking…don't delay!

If you have any questions about the H-1B visa process, contact me.

 

New Rules For Employment-based Immigrant & Nonimmigrant Visa Programs

The Department of Homeland Security (DHS) has published new regulations to provide greater flexibility for high-skilled foreign workers who have an approved employment-based immigrant visa petition, while they wait for a green card.  The intent of these new rules will better enable U.S. employers to sponsor and retain high-skilled foreign workers, increase the ability of such workers to seek promotions, accept lateral positions, change employers, or pursue other employment options.  

The highlights of this rule change, include:

  • Retention of Approved Immigration Visa (I-140) Petitions:  Immigrant petitions submitted by U.S. employers to request permanent employment on behalf of a foreign national (Form I-140) may no longer be automatically revoked based on a request by the employer to withdraw the petition.  Additionally, the immigrant petition will not be revoked if the the request to withdraw is based on the termination of the employer’s business 180 days after either the I-140’s approval or the filing of an I-485 application for adjustment of status.  While the I-140 would remain valid, the foreign national would need a new job offer or new petition in order to apply for a green card.
  • Nonimmigrant Visa Grace Periods:  A one-time grace period of up to 60 days whenever employment ends, will allow for greater job portability for nonimmigrant workers (especially H-1B, E-1, E-2, E-3, L-1, O-1 and TN visa holders).  During the grace period the nonimmigrant worker may apply for an extension of stay or change of status.  While the nonimmigrant will not be authorized for employment during the grace period, it will provide flexibility to allow for new employment in case of sudden termination.
  • Employment Authorization in Compelling Circumstances:  In compelling circumstances, DHS will allow certain individuals with an approved I-140 petition, who are unable to obtain an immigrant visa because of numerical limits, to apply for a one-year employment authorization document (EAD).  This new rule would only apply to individuals in E-3, H-1B, H-1B1, L-1 or O-1 status.  DHS has identified “compelling circumstances” as serious illness or disabilities, employer retaliation, other substantial harm to the applicant, or significant disruption to the employer.
  • Employment Authorization Document Processing:  Certain individuals may be granted automatic EAD extensions for up to 180 days, so long as they timely renew their EAD and it is based on the same employment authorization category as the existing EAD.  The extension is available only to certain foreign nationals, including adjustment of status applicants and individuals filing for renewal of Optional Practical Training (OPT) based on a degree in a Science, Technology, Engineering, or Math (STEM) field. This provision does not apply to H-4, L-2, or E nonimmigrant spouses seeking an EAD renewal.

The new regulation will become effective January 17, 2017, three days before Donald Trump takes office.  These regulations should remain in place, unless Congress acts to cancel them.  Please contact our office for further questions or clarification.

Deadline Approaching for STEM Graduates' OPT Extension Applications

The recently announced expansion of Optional Practical Training (OPT) work authorization for U.S. STEM (science, technology, engineering, and math) graduates will allow some students who already have 17 months of OPT work authorization to apply for an additional 7 months.  To qualify for this extension, applicants must apply by August 8, 2016 and within 60 days of the date their designated school official (DSO) enters the recommendation for their 24-month OPT extension into their SEVIS record.  Applicants must also:

  • Be currently participating in STEM OPT based on a 17-month extension;
  • Have at least 150 days of valid employment authorization remaining on their 17-month STEM OPT period on the date the new Form I-765, Application for Employment Authorization is filed; and
  • Have their DSO and employer comply with all the 24-month STEM OPT extension requirements

Please contact us if you have any questions regarding extending your OPT employment authorization.   

Understanding the New STEM OPT Regulations for Students & Employers

Beginning today, the U.S. Department of Homeland Security (“DHS”) will be expanding Optional Practical Training (“OPT”) extensions for students on F-1 visas enrolled in science, technology, engineering, and mathematics (“STEM”) degree programs. The new regulations authorize OPT for up to 36 months for F-1 students with a qualifying U.S. STEM degree.  Meaning, F-1 STEM degree students will now be eligible for 12 months of initial OPT plus an additional 24-month extension of OPT.  This new rule does not apply to the standard 12-month OPT program, which will remain the same. 

Under the new regulations, certain students will qualify for the OPT extension based on a prior eligible STEM degree obtained in the U.S., and F-1 students who enroll in a new STEM academic program and earn a qualifying advanced STEM degree will be able to apply for one additional extension. The rule also adds fields of study that qualify for a STEM extension (click here for the list). 

STEM OPT Extension Eligibility

The new rules will not apply to STEM OPT extension applications that were filed and approved before May 10th (i.e. they will be evaluated with the old STEM OPT extension rules and will be issued only a 17-month extension).  If, however, a STEM OPT extension application was filed prior to May 10th and remains pending on May 10th, DHS will send a request for evidence ("RFE") to the applicant to see if they meet the requirements for the new 24-month extension.  F-1 students who already have a 17-month OPT may be eligible to apply for an additional 7 months of STEM OPT, provided they meet the following requirements:

  • The F-1 student's STEM degree meets the new requirements of the regulation;
  • The F-1 student has at least 150 days remaining on the 17-month STEM OPT Employment Authorization Document ("EAD") on the day USCIS received the petition;
  • The employer and the F-1 student comply with the new STEM OPT extension rules (see below);
  • The F-1 student files for a 7 month extension on Form I-765 between May 10, 2016 and August 8 2016.  (Application for a 7 month extension will not be accepted after August 8, 2016).    

New Employer Obligations

Along with this good news, there are, however, new reporting requirements and obligations for students, designated school officers ("DSO"), and employers.  Under the new rule, students and their employers seeking STEM OPT extensions must now work together to draft the new Form I-983, Training Plan for STEM OPT Students, in which the employer must attest: they have sufficient resources and personnel available and are prepared to provide appropriate training in connection with the specified opportunity; the student on a STEM OPT extension will not replace a full or part-time, temporary, or permanent U.S. worker; and the student’s opportunity assists the student in reaching his or her training goals.  Employers must also ensure that the F-1 student's compensation and other working conditions are commensurate with those of similarly situated U.S. employees.

Employers may now also be subject to compliance inspections conducted by U.S. Immigration & Customs Enforcement (ICE) and will be required to notify the DSO within 5 business days if the student ceases employment.   Students will be required to submit annual self-evaluations to the DSO and confirm the validity of the information provided in the Student and Exchange Visitor Information System (SEVIS) every six months.

Employment & Unemployment During STEM OPT

OPT employment during the 24 month period is limited to certain employer and employment opportunities.  The STEM OPT employer must have a Federal Employment Identification Number (FEIN) and must be enrolled in and using E-Verify, hiring the student in an employer-employee relationship (i.e. a staffing agency, labor-for-hire, or volunteer opportunities will not qualify).  The employment opportunity must be directly related to the student's qualifying STEM degree and the student may not work concurrently for multiple employers during the STEM OPT period.

Students who obtain the 24-month STEM extension may be unemployed for up to 90 days during the initial 12-month OPT period, and an additional 60 days during the 24-month extension. 

As the new rules roll out, we will continue to keep you informed about any issues with the program.  As always, if you have any questions, please don't hesitate to contact us.

Immigration Update

This week has seen the announcement of some potential changes to U.S. immigration laws affecting the Visa Waiver Program, EB-5 Visas, increases in H-1B and L-1 filing fees, and expansion of Optional Practical Training. Check out all the recent immigration news and updates, along with some helpful holiday immigration tips in our final Newsletter of 2015.  Sign up for our immigration newsletter to keep up to date on all the latest immigration news.

We wish you a happy holidays and healthy new year!

Possible Expansion of Program to Hire Foreign Students

The number of international students in the U.S. hit a record high in 2014, with more than 880,000 students.  The stakes are therefore high for international college students who are concerned about choosing their majors and finding jobs for after graduation.  

The Department of Homeland Security (DHS) is aware of this issue and has proposed a new regulation which would allow F-1 nonimmigrant student visa holders science, technology, engineering, or mathematics (STEM) degrees from U.S. universities to extend their initial 12 month optional practical training (OPT) period by 24 months.  The proposed rule would increase the current STEM OPT extension from 17 months to 24 months (for a total of up to 36 months).

Like the current STEM OPT extension regulation, the proposed rule would only allow STEM OPT extensions for students employed by employers enrolled in the U.S. Citizenship and Immigration Services (USCIS) E-Verify employment eligibility verification program.

Under the proposed rule, “cap-gap” relief will still be available so as to allow students to automatically extend their F-1 status and employment authorization until October 1st, if they timely file an H-1B petition.  Additionally, the proposed regulations seeks to clarify the STEM field to studies in mathematics, natural sciences (including physical sciences and biological/agriculture sciences), engineering or engineering technologies, and computer/information sciences and related fields, in order to address current STEM needs in the U.S. economy while balancing the potential for future changes.

There will be a 30-day comment period, which will end on November 18th, at which point DHS will be required to review and consider all comments prior to implementing the final regulation.  If approved, this new regulation would allow certain students already working under the STEM extension to request the additional time that would be allowed under the new rule.   U.S. employers and foreign STEM graduates should continue to monitor this situation as it continues to evolve.

The Benefits of Obama’s Executive Order for Employment-Based Workers & Entrepreneurs

Amongst the details of President Obama’s executive order to improve the U.S. immigration system, we expect to see improvements affecting employment-based immigrants and entrepreneurs.  These improvements may include:

  1. The ability for employment-based immigrants to apply for adjustment of status (“green cards”) before an immigrant visa number is available for them under the annual immigrant visa quota;
  2. Increases in the employment authorization periods for STEM Optional Practical Training (OPT) graduates;
  3. Improvements to the PERM labor certification program for possibly “premium processing” and more modern recruitment methods and media;
  4. Employment authorization for H-4 spouses of H-1B holders;
  5. Guidance on L-1B specialized knowledge professionals;
  6. Guidance on the National Interest Waiver (NIW) program by entrepreneurs, inventors, and innovators;
  7. Parole opportunities and work authorization for entrepreneurs and inventors