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.

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.

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.

USCIS Policy Change Regarding Deportation Proceedings for Visa Applicants

U.S. Citizenship and Immigration Services (USCIS) has announced a sweeping new policy, effective immediately, that instructs USCIS officers to initiate removal (deportation) proceedings if, upon denial of an application or petition, an individual is unlawfully present in the United States. This new policy requires USCIS to issue a Notice to Appear (NTA) – a document issued to a foreign national instructing them to appear before an immigration judge for removal proceedings – in the following circumstances:

  • Where fraud or misrepresentation are substantiated or where an applicant abused any program related to the receipt of public benefits;
  • Criminal cases where an applicant is convicted of or charged with a criminal offense, or has committed acts that are chargeable as a criminal offense, even if the criminal conduct was not the basis for the denial or the ground of removability;
  • Where USCIS denies an Application for Naturalization on good moral character grounds because of a criminal offense;
  • Upon the denial of an application or petition, when an applicant is unlawfully present in the U.S.

This new policy is expected to dramatically impact a wide range of foreign workers, students, and U.S. employers. While historically NTAs have rarely been issued to employment-based visa applicant’s after the denial of an application, this policy shift appears to fall in line with President Trump’s executive orders focused on immigration enforcement and prosecution

Examples of employer-sponsored foreign nationals who may now be subject to removal proceedings include:

  • Individuals who have their application to extend or change to H-1B, L-1, or other nonimmigrant visa status denied, and whose visa status has expired while waiting for USCIS to adjudicate their application.
  • Individuals who have their application to change employers denied, and whose visa status has expired while waiting for USCIS to adjudicate their application.
  • Students who have their applications to extend their F-1 status or applications to change status to H-1B denied, and who have now fallen out of status under their student visa.
  • Individuals who have their application for either employment-based or family-based adjustment of status to permanent residence denied, and who now no longer have any nonimmigrant status.

While it is not clear how USCIS will implement these new guidelines, this change will nevertheless likely affect the lives of many individuals who have lived and worked in the U.S. lawfully for years. Foreign nationals that receive an NTA are advised to speak to qualified counsel to handle this sensitive matter. For questions on this or any immigration matter, please feel free 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.

Massive Workforce Compliance Inspections Coming

Immigration & Customs Enforcement (ICE) has ordered the Homeland Security Investigations (HSI) unit to “quadruple to quintuple” the current number of routine workplace investigations of U.S. employers in the coming year.  While the Trump administration’s immigration enforcement efforts have thus far mostly focused on undocumented individuals, the goal of ICE’s new strategy is to target employers.  In particular, these workplace investigations will focus on audits of employers Employment Eligibility Verification, Forms I-9 and other employment records to determine whether employees (be they U.S. citizens or foreign nationals) are lawfully work authorized.  

ICE’s plan to ramp up worksite investigations increases the risk of significant civil penalties and possible criminal prosecution for employers who fail to comply with U.S. employment laws.  Additionally, business owners, executives, and Human Resources staff may personally face increased risk for simple Form I-9 “paperwork” errors.  

All U.S. employers must complete a Form I-9 for all of their employees in order to verify their identity and work authorization.  An employer who fails to properly complete and retain a Form I-9 for each and every employee, faces fines and penalties ranging from $539 to $2,156 for each paperwork violation.  Therefore, employers should take this opportunity to evaluate their current I-9 policies and procedures to ensure they are in compliance with the latest I-9 and E-Verify rules. In particular, employers should:

  • Review current I-9 policies and practices with qualified counsel.  This includes careful analysis of all workforce compliance practices to mitigate errors and mistakes on the form;
  • Develop formal I-9 and E-Verify protocols for detecting, preventing, and improving against I-9 violations.  For example, store an employee’s Form I-9 separate from other personnel records and separate current from terminated employees;
  • Mitigate historical I-9s with qualified counsel to help avoid against fines and penalties for certain technical or procedural errors on the forms.  Only certain I-9 deficiencies can be mitigated, but must be done accurately so as not to make deficiency worse;
  • Develop, implement, and maintain compliance policies for worksite raids and for managing CE Fraud Detection & National Security (FDNS) visits for nonimmigrant visa employees.

For any questions on employment eligibility or workforce compliance issues, please feel free to contact us.

New Employment Eligibility Verification, Form I-9

U.S. Citizenship & Immigration Services (USCIS) has annouced the release of a new version of the Employment Eligibility Verification, Form I-9, which is used to verify the identity and employment authorization of individuals hired to work in the United States. Employers and Human Resources staff may begin using this new Form I-9 or continue to use the current version of the Form I-9 (dated 11/14/16 N) through September 17, 2017.  Beginning September 18, 2017, employers must use the new form.  

The revised form includes some cosmetic changes, along with changes related to acceptable I-9 verification documentation, including Consular Reports of Birth Abroad.  USCIS plans to update its M-274 “Handbook for Employers: Guidance for Completing Form I-9” in the near future.

This change, in addition to the recent increase in penalties for employment verification errors, are of significant importance to employers and Human Resources departments, as all U.S. employers must ensure proper completion of Form I-9 for each individual they hire.  More importantly, as the workforce compliance landscape continues to evolve, employers should take this opportunity to evaluate their current I-9 policies and procedures to ensure they are in compliance with the latest I-9 and E-Verify rules.  As part of this process, employers should:

  • Review current I-9 policies and practices with qualified counsel.  This includes careful analysis of all workforce compliance practices to mitigate errors and mistakes on the form;
  • Develop formal I-9 and E-Verify protocols for detecting, preventing, and improving against I-9 violations;
  • Mitigate historical I-9s with qualified counsel to help avoid against fines and penalties for certain technical or procedural errors on the forms;
  • Develop, implement, and maintain compliance policies for worksite raids.

For any questions on employment eligibility or workforce compliance issues, please feel free to contact us.

Supreme Court Allows Partial Travel Ban

The U.S. Supreme Court has ruled to partially unblock President Trump’s executive order temporarily banning travel to the U.S. from the following predominantly muslim countries: Iran, Syria, Libya, Somalia, Sudan and Yemen.  The ruling will keep in place part of the lower court injunction, but will reinstate a travel ban for foreign nationals “who lack any bona fide relationship” with any person or entity in the United States. 

The practical upshot of this is that foreign nationals of these 6 countries should expect that the travel ban will now be enforced against them, thereby barring their travel to the U.S. for a period of 90 days, unless they are able to demonstrate a relationship with a person (e.g., a family member) or an entity (e.g., school, employer, host organization) in the U.S.  In other words, the travel ban may not be enforced against individuals from these 6 countries so long as the individual can prove they have a family relationship with someone in the U.S. or a relationship with a U.S. entity, (i.e. attendance at a U.S. university or employment with a U.S. employer).  While other relationships may also qualify, none were specifically mentioned in the decision.

Foreign nationals traveling to the U.S. from Iran, Syria, Libya, Somalia, Sudan and Yemen should now plan to travel with evidence of their family relationships in the U.S. (i.e. affidavits, birth certificates, marriage certificates), or evidence of their enrollment in a U.S. school (i.e. student visa, Form I-20), or employment (work visa, visa petition approval notices, pay stubs, letters verifying employment).  Additionally, travelers from these countries should be prepared to answer questions about their U.S. family members or employment.

The Supreme Court will hear arguments on the merits of the executive order in October 2017.  In the meantime, if you have any questions on how this ruling may impact you or your employees, please feel free to contact us.

USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

USCIS has announced that starting April 3rd, 2017 premium processing for all H-1B petitions will be temporarily suspended. This suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners will not be able request premium processing for H-1B visa cases.

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017.  Meaning, this will apply to ALL petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.

All H-1B petitions filed with a request for premium processing will be rejected.

This temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on Form I-129.

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage.

The reason for the temporary suspension will allow USCIS to reduce overall H-1B processing times. 

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.

Immigration Filing Fees Increasing

The Department of Homeland Security (DHS) has annouced that starting on December 23, 2016, U.S. Citizenship and Immigration Services (USCIS) filing fees for temporary visa petitions, family and employment-based visa petitions for lawful permanent residence (“Green Cards”), and applications for adjustment of status, naturalization, and waivers will increase.

The key employment-based petitions and applications that will see fee increases are as follows:

  • Petitions filed on behalf of non-immigrant workers, such as H-1B, L-1, O-1, E-2, P-1, TN, etc. (Form I-129): increase from $325 to $460.
  • Immigrant petitions filed on behalf of alien relatives (Form I-130): increase from $420 to $535.
  • Fiance(e) petitions (Form I-129F): increase from $340 to $535.
  • Immigrant petitions on behalf of alien workers (Form I-140): increase from $580 to $700.
  • Immigrant petition by alien entrepreneur under the EB-5 program (Form I-526): increase from $1,500 to $3,675.
  • Application for Regional Center Designation under the EB-5 program (Form I-924): increase from $6,230 to $17,795.
  • A new filing fee of $3,035 for the Form I-924A, which is used for applications under the EB-5 Regional Center program.
  • Application for adjustment of status (Form I-485): increase from $985 to $1140 (plus $85 biometrics fee).
  • Application for Employment Authorization Document (EAD) (Form I-765): increase from $380 to $410.
  • Application for naturalization/U.S. Citizenship (Form N-400): increase from $595 to $640 (plus $85 biometrics fee), but USCIS will reduce the fee to $320 for certain applicants with low income. 
  • Application for a certificate of citizenship (Form N-600): increase from $600 to $1,170
  • USCIS Immigrant Fee for individuals entering the U.S. on immigrant visas issued by a U.S. Embassy or Consulate abroad: increase from $165 to $220.

To view all of the USCIS filing fee increases, please visit https://www.uscis.gov/forms/our-fees

Those wishing to apply for immigration benefits should therefore submit petitions and applications as soon as possible to take advantage of the current fees.  Employers should also take these changes into consideration when budgeting for the immigration costs of their employees.