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.

New Immigration Policy to Deny Cases Without Issuing RFE or NOID

U.S. Citizenship and Immigration Services (USCIS) has released a new policy that gives immigration adjudicators discretion to deny any and all visa applications or petitions without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) in cases where initial evidence is missing or does not establish eligibility. This new guidance, which becomes effective September 11, 2018, replaces a prior policy which instructed adjudicators to request additional evidence in a case, unless there was no possible way that additional evidence could fix a deficiency in the case.

The intent of this guidance is to provide immigration officers with more discretion to deny a visa application without requesting further information first. This policy has even greater implications in light of USCIS’ other recent announcement instructing officers to initiate removal (deportation) proceedings if, upon denial of an application or petition an individual is unlawfully present in the United States. 

As USCIS continues to shift away from a focus on immigration benefits to a focus on immigration enforcement and stricter standards for approval of visa petitions, employers and foreign nationals should consider the following strategies to avoid consequences imposed by these new rules:

  • Take all precautions to ensure visa petitions and applications are filed with the requisite documentation and evidence. This includes overdocumenting how the employer and employee meet all of the visa eligibility requirements.
  • Applications to extend nonimmigrant visa status (including H-1B, L-1, O-1, and others) should be filed as early as possible (up to 6 months before expiration) to avoid any lapses in nonimmigrant status.
  • Employer’s should continue to extend the nonimmigrant status of their foreign national employees until their applications for lawful permanent residence are approved, in order to avoid situations where the employee is in unlawful presence and could be deported.
  • Employer’s should consider utilizing USCIS’s “premium processing” program when filing “change of employer” visa petitions to quickly obtain work authorization for a candidate and not have a candidate risk changing employers without an approval.

These new USCIS policies reinforce the importance of ensuring all visa petitions and applications include the required evidence to show the applicant meets the visa eligibility requirements. The chances of having a family or employment-based visa petition or application denied are significantly reduced when working with qualified immigration counsel to prepare a comprehensive application.

For more information or advice on how to navigate these or any other immigration policy changes, 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.

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.

The Reality of Trump's Proposed Immigration Policies

The dust has still not settled since Donald Trump’s win in the U.S. presidential election last week, but we are already starting to see some details regarding his campaign pledges as it pertains to immigration.  Despite there still be overwhelming uncertainty as to the specifics of his immigration policies, the general cornerstones seem to call for an increase in immigration enforcement and a decrease in the amount of immigration to the United States. That said, how realistic is Trump’s agenda?

Undocumented Immigrants

The deportation of an estimated 11 million undocumented immigrants from the United States is almost impossible. In fact, earlier this week Trump dialed back his campaign rhetoric to express his intention to prioritize the removal of around 2-3 million undocumented immigrants with criminal records, which is a position that is actually in line with the current administration’s priorities.  

Deporting all undocumented immigrants from the U.S. will require incredible amounts of new resources and funding. While many congressional Republicans might support Trump’s policies, would they support the cost?  Politico estimates it would cost $166 billion to deport all of the undocumented immigrants in our country and complete a border wall.  (No, by the way, Trump can’t force a country to spend money on something it does not want).  The Bipartisan Policy Center estimates that Trump’s immigration attrition policies could increase projected deficits by about $800 billion over the next 20 years.  By keeping immigrants in this country working, creating businesses, and making the goods and services that people want to buy we are ultimately increasing wages and employment opportunities.  Would Republicans really be so foolish as to actually spend money on large-scale nationwide attrition programs?

DACA

Trump has pledged to end President Obama’s deferred deportation program (Deferred Action for Childhood Arrivals (DACA)), which has provided “temporary relief from deportation” and work authorization to over 650,000 undocumented immigrants who arrived in the U.S. when they were minors.  While it is certainly possible for the next President to overturn this executive action, it remains unclear whether he would simply prevent future renewals of the U.S. employment authorization documents for DACA individuals, or whether he would cancel and revoke existing employment authorization documents for DACA recipients.  A more substantial concern, is whether DACA recipients would be more vulnerable to deportations based on the personal information they previously provided to the government as part of their application process.

Assuming, as Trump hinted earlier this week, that DACA recipients may not fall under his 2-3 million criminal aliens enforcement strategy, what economic benefit would arise from revoking the work permits of over 650,000 young immigrants who have been residents of the U.S. for decades, who are working and participating in the economy and attending college?  What might be the harm to U.S. employers lawfully employing workers with employment authorization based on DACA?  There may be severe consequences to our economy by eliminating valuable employees from our workforce, not to mention creating a humanitarian crisis by deporting these individuals.  

H-1B Visas

During Trump’s campaign he expressed a desire to make it harder for American companies to obtain employment-based visas for immigrant workers.  In particular, Trump called for policies to increase the regulatory costs for American businesses hiring skilled foreign workers in specialty occupations, particularly in the H-1B visa category.

While it is reasonable to expect that the new administration may add new statutory restrictions, institute stricter U.S. recruitment requirements, or increase USCIS filing fees, it is also possible that they may not make any changes to the existing employment-based visa program.  As U.S. businesses are increasingly in need of high-skilled labor (especially in STEM fields), what benefit would the U.S. achieve by limiting the amount of intelligent, professional-level foreign nationals into this country?

TN Visas

Canceling the North America Free Trade Agreement (NAFTA) treaty with Mexico and Canada was a major talking point in Trump’s campaign.  Doing so would most likely eliminate the TN visa for Canadian and Mexican nationals.  Again, the elimination of a visa, like the TN, for high-skilled immigrants in the U.S. does not seem to be in the best interest of American businesses.  Furthermore, scrapping NAFTA would also eliminate reciprocal visa options Canada and Mexico provide to U.S. workers seeking to engage in professional activities in those countries.

F-1 STEM OPT

Recent changes to the Optional Practical Training (OPT) program for foreign students on F-1 student visas and who graduated with degrees in science, technology, engineering, and mathematics (STEM), allow for an additional two years of U.S. work authorization.  This new rule could be a target under the new President.  Again, though, with U.S. employers in desperate need for STEM employees, cancelling the STEM OPT extension rule, would severely injure American companies.

“Extreme Vetting”

Trump’s most controversial policy called for some type of “extreme vetting” of foreign nationals from certain countries or certain religions.  While it is not clear what he means by this type of vetting, the possibility of increased screening could have serious consequences for U.S. employers and employment-based visa holders, due to stricter scrutiny on visa petitions and longer visa application times.  It might also make it harder for individuals to obtain U.S. citizenship.

In the end, it is realistic to expect some changes to the U.S. immigration system.  Whether all the broad promises of Trump’s campaign will become reality is a different story.  In less than 60 days, though, Donald Trump will take the oath of office as the 45th president of the United States.  Therefore, employers and individuals considering whether to seek certain immigration-related benefits, should act sooner than later.  In the meantime, please visit our website and sign up for our newsletter for the latest news regarding any changes to U.S. immigration laws.

 

H-1B Visa Cap Closed. Alternative Work Visas Available.

Just as it has done the past four consecutive years, U.S. Citizenship & Immigration Services (USCIS) has announced that it has received enough H-1B petitions to fulfill its annual H-1B quota and will no longer accept new cap-subject H-1B petitions until April 1, 2017.  This is to say, in the last week USCIS received in excess of both 65,000 general H-1B cap petitions for individuals with at least a Bachelor's degree and in excess of 20,000 U.S. Master's degree H-1B petitions.

USCIS will therefore conduct a computer-generated random lottery of those H-1B petitions received between April 1 - April 7, 2016 to determine which petitions will be selected for processing.  If selected and approved in this lottery beneficiaries may begin working in H-1B status for their employers starting October 1, 2016.  Petitions not selected in the lottery will be returned to employers along with the filing fees.

USCIS, however, will continue to accept H-1B petitions year-round from employers who are exempt from the H-1B cap, as well as petitions to extend H-1B status or change employers for those individuals currently in H-1B status.

Alternative visa options are available, though, for those employers and employees who fail to receive an H-1B visa.  The following visas are available throughout the year, without numerical caps, for qualifying foreign nationals:

  • TN Visa:  For Canadian and Mexican citizens employed in certain professional categories seeking to engage in U.S. employment
  • L-1 Visa:  For intracompany transferees who have worked for a foreign entity for one year and 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
  • O-1 Visa:  For foreign nationals of extraordinary ability who have achieved national and international recognition for extraordinary achievements in their field of endeavor
  • 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.

If you have questions about the H-1B visa cap or any of these work visa options, please contact our office.