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.

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 Season Starts NOW

In light of recent reports of proposed changes to the H-1B work visa program by the Trump administration, U.S. Citizenship & Immigration Services (USCIS) has confirmed several important details about the upcoming H-1B visa filing season, which will commence on April 2, 2018. Most importantly, USCIS intends for the H-1B filing process and procedures to remain the same as it has in previous years. This is to say that there will be no "preregistration system" and if the petitions received by USCIS exceed the 85,000 numerical cap, a lottery will be used to select the petitions for processing. USCIS also hinted that they may impose a "short" suspension of "premium processing" for H-1B cap petitions (but not non-cap H-1B petitions), as they did last year.

Demand by U.S. employers for H-1B visas on behalf of “highly-skilled” foreign employees was, once again, at high 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 2, 2018. Due to prerequisite filing steps which must be completed before the H-1B petition can be submitted to USCIS, however, employers should begin preparing their petitions now to ensure they are ready to submit on April 2nd.

Despite rumors of potential changes to the H-1B visa program, the H-1B filing process and procedures will remain the same as they did in previous years.  Therefore, 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 2nd may jeopardize your chance at securing an H-1B visa for your employee. After the 2018 H-1B visas are gone, employers will have to wait until April 1, 2019 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.

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.

The Future for U.S. Work & Student Visa Programs Under Trump’s Next Executive Order

In follow up to last week’s Executive Orders, President Trump may be gearing up for his next round of Executive Orders which look to tighten U.S. work visa programs (including the H-1B visa), impose stricter limitations on foreign students, eliminate the International Entrepreneur Rule, and enact measures that will severely curtail the options for U.S. employers (especially in the tech sector) to attract the smartest and most innovative minds to our country. These proposed rules do not appear to suspend or terminate any foreign national’s current work authorization or visa status, but it does direct the Department of Homeland Security (DHS) to review all immigration regulations that allow foreign nationals to wok in the United States. Let’s look at what this could mean for visa holders, employers, and all foreign travelers to the U.S. in the future:

How will this impact the H-1B work visa?

The Executive Order does not propose immediate changes to the upcoming (April 3, 2017) H-1B visa program, but it does indicate the administration’s intent to revise the H-1B work visa lottery system in the future to prioritize applications for those who are paid higher wages and/or have advanced education. 

How will this impact the F-1 OPT student programs?

The Executive Order directs DHS to “reform practical training programs for foreign students to prevent the disadvantaging of U.S. students in the workforce, better protect U.S. and foreign workers affected by such programs, … and improve monitoring of foreign students.” While this would seem to indicate that steps will be taken to curtail current Optional Practical Training (“OPT”) programs available to F-1 students, it is not clear how DHS will modify the regulations.

How will this impact current visa-case processing and/or Green Card priority dates?

The Executive Order directs DHS to “restore the integrity of employment based visa programs to better protect U.S. and foreign workers” affected by those programs. While this guidance is vague, this could signal an increase in Requests for Evidence and Notices of Intent to Deny in immigration cases, as immigration officers may begin to apply stricter adjudication standards. This may also mean the introduction of new employer obligations as it pertains to recruiting and/or prevailing wages. Any changes to the Visa Bulletin system could result in a retrogression in Visa Bulletin priority dates.

How will this impact the International Entrepreneur Rule?

While the proposed Executive Order does not single out the recently published International Entrepreneur Rule (set to go in to effect this summer), it does call for the elimination of any use of parole that “circumvents statutory immigration policy,” which essentially would end the rule.

How will this impact L-1 intra-company transferee visa holders?

The Executive Order directs DHS to conduct site visits to all places where L-1 visa holders (international executive and managers) work, including third-party worksites. It also directs DHS to begin conducting site visits for all visa categories within two years.

How will this impact business / tourist (B-1/B-2 visa) visitors?

The Executive Order directs DHS to clarify the types of activities that are and are not permissible for B-1/B-2 visa visitors. Individuals entering the U.S. on B-1/B-2 visitor visas, should anticipate more comprehensive scrutiny at all ports-of-entry.


These Executive Orders also direct the Department of Labor to investigate more abuses of work visa categories, and require more employers seeking to sponsor foreign workers to participate in the E-Verify employment authorization program.

Businesses, foreign workers, and international students considering filing for an H-1B work visa this year should begin preparing their H-1B visa petitions NOW. Demand for H-1B visas on behalf of foreign employees is expected to reach record levels this year. Due to lengthy prerequisite filing steps which must be completed before the H-1B petition can be submitted to USCIS on April 3rd, employers should begin preparing their petitions NOW to ensure they are ready on time.

Employers, foreign nationals, and international students who may be impacted by changes to any of these proposed regulations should contact an Attorney immediately to begin evaluating legal strategies.  If you have any other questions, please 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.

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.