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.

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.

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

U.S. Citizenship & Immigration Services (USCIS) has once again announced that starting April 2nd, 2018 premium processing for new, cap-subject H-1B visa petitions will be temporarily suspended.  With premium processing, employers can pay an optional USCIS filing fee to guarantee a response on their petition within 15 days.  This temporary suspension is expected to last until September 10, 2018. While H-1B premium processing is suspended, petitioners will not be able request premium processing for new, cap-subject H-1B visa cases.

This suspension of premium processing (similar to the one last year) applies only to new H-1B petitions filed, generally, by for-profit companies that are subject to the 85,000 annual H-1B visa cap. Meaning, this will apply to ALL petitions filed for the FY19 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”) and any of these petitions filed with a request for premium processing will be rejected.

The premium processing suspension will NOT, however, apply to petitions that may be cap-exempt (i.e. H-1B workers who will work for or at a university or affiliated nonprofit or research institute), nor will it apply to H-1B extension or change of employer petitions. This temporary suspension of premium processing does NOT apply to other eligible nonimmigrant classifications filed on Form I-129, either.

Even though premium processing is temporarily suspended, employers may still 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. 

If you have further questions on the H-1B visa process, please feel free to contact me.

Winning The H-1B Visa Lottery

Starting April 2, 2018, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for Fiscal Year 2019. 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. Based on the number of petitions received in the first few days of April last year (over 199,000) and the previous year (over 236,000), 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 2nd. 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 light of recent reports of proposed changes to the H-1B work visa program by the Trump administration, USCIS has confirmed that it intends for the H-1B filing process and procedures to remain 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.

WATCH my conversation on how to overcome issues with H-1B RFEs

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 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.

Visa Extensions Will Face Higher Scrutiny

U.S. Citizenship and Immigration Services (USCIS) has annouced updated policy guidance, which now instructs immigration officers to apply the same level of scrutiny to both initial visa petitions and visa extension petitions in certain nonimmigrant categories, including the H-1B visa.  This new policy rescinds the current practice which instructs officers to give “deference” to the findings of a prior approved visa petition when adjudicating petition extensions (i.e. visa renewals), as long as the key elements were unchanged and there was no evidence of a material error or fraud related to the prior determination.

This new policy will impact all employers who are seeking to file an extension of a nonimmigrant visa for any of their international employees.  In particular, those individuals who may currently be on an H-1B, L-1A, L-1B, O-1, E-3, or other nonimmigrant visa will likely face increased scrutiny in the adjudication of their petition to extend/renew their visa.  Based on this new USCIS guidance, employers should prepare to demonstrate and document each and every eligibility criteria for a particular visa, as if they are filing a new petition.  This new policy, along with the recent announcement requiring in-person interviews for individuals seeking employment-based green cards, may also continue to lead to delays in visa processing.

This change, once again, appears to fall in line with President Trump’s “extreme vetting” immigration plans.  Nevertheless, it should always be the practice of a qualified immigration attorney to file all visa petitions (including visa extensions) as a standalone petition, evidencing how the Beneficiary and Petitioner meet the eligibility criteria for the visa.  Even more so now that USCIS may use this policy to essentially re-adjudicate the initial visa petition when adjudicating visa extension petitions.  Employers and applicants should therefore work closely with counsel to provide substantial documentation of compliance with the current terms of employment (i.e. worksite information, salary, job duties, etc.), along with evidence of maintenance of immigration status and the job that will be performed during the requested visa extension time period.   Our office will continue to monitor the rollout of this new policy. For questions or help in preparing your visa extension petition, please contact us.

USCIS Resumes Premium Processing for H-1B Cases

U.S. Citizenship and Immigration Services (USCIS) has announced that, it will resume “premium processing” for all H-1B visa cases, including pending H-1B visa cap-subject petitions.  USCIS temporarily suspended premium processing of all H-1B petitions in April 2017, however, this new announcement means that all H-1B cases, including pending petitions pursuant to both the 65,000 “regular” H-1B cap and the 20,000 “advanced degree” cap, H-1B extension petitions, and H-1B change of employer petitions are now eligible to take advantage of premium processing.  

With premium processing, employers can pay an optional USCIS filing fee to guarantee a response on their petition within 15 days.  Employers seeking to expedite the processing of a pending H-1B cap-subject case, including cases which require responses to Requests for Evidence (RFEs) from USCIS, should contact an attorney to take advantage of this program.

The End of the International Entrepreneur Rule

The Trump administration announced this week their intent to delay and ultimately rescind the International Entrepreneur Rule.  The rule, which was created by President Obama’s administration and which was set to go in to effect on July 17, 2017, would have allowed certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) in order to start or grow their businesses in the U.S..  Applicants would have to show they met minimum requirements for capital investments and demonstrate that their startup would have been of benefit to the public via job creation in the U.S.

While the current administration is delaying the effective date of the International Entrepreneur Rule until March 14, 2018 and taking public comment on the rule, their intention is to rescind the rule.

For questions about this policy change, please feel free to contact us.  Foreign entrepreneurs and startups seeking alternative immigration options to the U.S. should read our article on entrepreneur visa options.  

Alternative Work Visas to the H-1B

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, 2018.  This is to say, in the first week of April 2017, 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, 2017 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, 2017.  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.

Demand For H-1B Visas This Year May Exceed 300,000

Starting April 3, 2017, U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions for Fiscal Year 2018 (FY2018).  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.  Based on the number of petitions received in the first few days of last year (over 236,000) and the market demand for high-skilled labor, our office anticipates USCIS receiving over 300,000 H-1B petitions in the first few days of April. 

Accordingly, time is running out for employers to timely prepare their H-1B petitions for submission on April 3rd.  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.  

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.

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 Immigration Options Coming for Entrepreneurs & Startups

U.S. Citizenship & Immigration Services (USCIS) will be announcing today a proposed rule which will allow certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so that they may start or scale their businesses here in the United States.

The proposed rule would allow the Department of Homeland Security (DHS) to grant foreign entrepreneurs of startup entities temporary stay in the U.S. (up to 2 years, with a possible 3 year extension), so long as the foreign national can evidence that he/she will be providing a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.  To be eligible, international entrepreneurs of startup enterprises will have to demonstrate:

  • A significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
  • Show their startup was formed in the United States within the past three years; and
  • Has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by: (1) receipt of significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments; (2) receipt of significant awards or grants (at least $100,000) from certain federal, state or local government entities; or (3) partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

The rule will not take affect until after a 45 day public comment period and until it is published in the Federal Register.  Once published, however, this rule will help our economy grow by expanding immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment and generating revenue in the U.S.