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U.S. Citizenship and Immigration Services has officially announced that H-1B cap filing will open on April 1 and that premium processing will begin no later than May 16.
Employers may see delays in the issuance of receipt notices and may have to wait for adjudication of cap-subject petitions until late May for premium processing cases. Petitions that are filed with a request for premium processing are eligible for expedited 15-day processing from the time premium processing begins.
The agency confirmed that it expects to receive more than the statutory cap of 65,000 petitions during the first five business days of the filing period which starts April 1, and has said that it will notify the public when the cap has been reached. When the number of filed petitions exceeds the cap, a random lottery will select petitions. USCIS will reject all unselected petitions, as well as petitions received after the cap has closed. The numerical cap for the fiscal year is 65,000, with an additional 20,000 for individuals holding advanced degrees from U.S. academic institutions.
BAL Analysis: Employers are reminded that filing volume is expected to be extremely high again this year and should expect that their first decisions may not be received until late May. Employers will not know if a petition has been selected in the lottery until they receive a premium-processing or regular-processing receipt notice from USCIS. BAL will continue to provide updates as the H-1B cap season progresses.
Copyright © 2016 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
U.S. Citizenship and Immigration Services has confirmed that in April 2016 it will only accept employment-based adjustment of status applications according to the Application Final Action Dates chart, rather than the Dates for Filing chart, published in the State Department’s April Visa Bulletin last week.
Employment-based immigrants must follow the Application Final Action Dates chart below to determine if they are eligible to file their adjustment of status petitions with USCIS. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their adjustment of status applications in April. Family-based immigrants, however, may use the Dates for Filing Visa Applications chart applicable to family-sponsored applicants, contained in the April Visa Bulletin.
Application Final Action Dates for Chinese nationals in the EB-3 category will advance by six weeks to Aug. 15, 2013, remaining ahead of the China EB-2 category, which will advance by one month to Sept. 1, 2012, according to the State Department’s April Visa Bulletin.
Other categories show minor advancements. India EB-2 and EB-3 will both advance by three weeks to Nov. 8, 2008 and Aug. 8, 2004, respectively. The Philippines EB-3 category will advance by six weeks to May 1, 2008. The EB-3 category for Mexico and all other countries will advance by six weeks to Feb. 15, 2016.
All other EB-2 categories besides India and China will remain current. All EB-1 categories will remain current.
Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for April. Those with priority dates earlier than the dates listed for their category may be eligible to file for adjustment of status in April. Applicants seeking to file for adjustment of status are reminded that the Dates for Filing does not take effect unless U.S. Citizenship and Immigration Services confirms via a web posting in the coming week.
Dates for Filing of Employment-Based Visa Applications:
The Department of Homeland Security has released the text of its final regulation expanding the extension of Optical Practical Training (OPT) for foreign students with science, technology, engineering, and mathematics (STEM) degrees.
The rule, titled “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students with STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students,” will be published in the Federal Register on Friday, and will become effective May 10. DHS first proposed the rule on Oct. 19, after a federal judge determined that the previous rule authorizing the STEM extension must be invalidated. DHS made several changes to the proposal in response to the more than 50,000 comments that the agency received.
Eligibility for STEM OPT Extension
As in the proposed rule, DHS will reinstate the STEM OPT extension and increase it from 17 months to 24, for a total of up to 36 months. Under the final rule, certain students will qualify for an extension based on a prior eligible STEM degree obtained in the U.S., and F-1 students who enroll in a new academic program and earn a qualifying advanced STEM degree will be able to apply for one additional extension. The rule also clarifies which fields of study and educational institutions qualify for the extension.
Employer Obligations
The final rule imposes new obligations on employers, but reduces some of the requirements that DHS originally proposed. Before a designated school official can recommend a STEM OPT extension for a student, the student and employer must complete a new Form I-983, “Training Plan for STEM Students.” The employer must attest that:
The employer has sufficient resources and personnel available and is prepared to provide appropriate training in connection with the specified opportunity.
The student on a STEM OPT extension will not replace a full- or part-time, temporary, or permanent U.S. worker.
The student’s opportunity assists the student in reaching his or her training goals.
Employers must provide the student and similarly situated U.S. workers with commensurate terms and conditions of employment. Instead of requiring the student’s immediate supervisor to sign the training plan, the final rule allows any employer representative with signatory authority to sign. Additionally, employers may satisfy their training plan obligations through their existing training programs if they meet the rule’s requirements.
Government Enforcement
While the proposal would have allowed DHS to conduct unannounced employer site visits, the final rule requires that employers be notified 48 hours in advance. However, DHS does not need to provide notice if a complaint or other evidence of the employer’s noncompliance triggers the investigation. Employers must report to the designated school official within five business days if the student ceases employment (instead of 48 hours as previously proposed). Students will be required to submit annual self-evaluations to the official and confirm the validity of the information provided in the Student and Exchange Visitor Information System every six months.
Grace Period for Students
F-1 students may currently be unemployed for up to 90 days during the initial OPT period, and an additional 30 days if they receive the 17-month STEM extension. This rule retains the 90-day maximum period during initial OPT and allows students who obtain 24-month STEM extensions an additional 60-day grace period, for a total of 150 days.
E-Verify and H-1B Cap Gap
The rule retains multiple provisions of the previous rule, including E-Verify requirements for STEM OPT employers, and “cap-gap” protection allowing DHS to extend F-1 status for students whose H-1B status will become effective Oct. 1 of the following fiscal year.
Transitional Rules
Applications for the STEM OPT extension that are filed and approved before the May 10 effective date will be evaluated under current rules. However, for applications that remain pending on that date, DHS will request evidence from applicants that they meet the requirements for the new 24-month extension. The rule outlines procedures by which certain students currently working in the U.S. on the STEM OPT extension may apply for an additional seven months of OPT.
BAL Analysis: Employers are reminded that this rule will not go into effect until May 10. The publication of this final regulation will avert the disruptions that would have occurred if the current rules had expired without a new rule in place. BAL worked with clients and business immigration trade associations to submit comments to DHS on the proposed rule and welcomes the agency’s adoption of many of the recommended changes. BAL will provide additional analysis of the rule in the coming days.
The State Department has released an updated Worldwide Caution, detailing ongoing security threats in Europe, the Middle East and North Africa, and East Asia and the Pacific, among other regions.
“Recent terrorist attacks . . . serve as a reminder that U.S. citizens need to maintain a high level of vigilance and take appropriate steps to increase their security awareness,” said the statement, which was issued Thursday.
The State Department regularly issues notices of security or health threats Americans may face when traveling abroad.
While the Worldwide Caution issued Thursday noted that “credible information” indicates that extremist groups are plotting attacks in Europe, the Middle East and North Africa, and East Asia and the Pacific, it is considered less serious than specific Travel Warnings (which indicate that travelers should strongly consider not traveling to a country at all) or Travel Alerts (providing travelers with information about short-term events that might affect security).
The Worldwide Caution, which includes a breakdown of threats by region, is available on the State Department’s website.
BAL Analysis: Travelers should exercise caution when they are abroad, especially in regions where officials believe extremist groups are interested in attacking Americans or American interests. Employers may wish to encourage their employees to enroll in the Smart Traveler Enrollment Program, a free service that provides updated security information and allows Americans to register their trips abroad with the closest U.S. embassy or consulate.
India has filed a complaint against the United States in the World Trade Organization alleging that a recent U.S. law that increases H-1B and L-1B visa fees for certain employers violates international trade agreements.
The new fees were passed by Congress in December under an omnibus budget bill and affect certain employers sponsoring high-skilled foreign workers on temporary U.S. visas. Specifically, employers whose workforce comprises 50 or more U.S. employees of whom more than half are H-1B or L-1 workers must pay $4,000 for each H-1B petition and $4,500 for each L-1 petition. The new fees apply to initial petitions as well as extensions and amount to a doubling of previous fees.
The complaint, filed Thursday, formally initiates dispute proceedings, and India and the U.S. now have 60 days to reach an agreement. If they cannot agree, India may request that a WTO panel decide the matter.
India claims that the fee hikes are inconsistent with U.S. obligations under the 1995 General Agreement on Trade in Services (GATS), a key agreement that binds members of the WTO and requires members to liberalize trade in services by not impeding international movement of individuals and entities. Exceptions apply if a country imposes restrictive measures to ensure compliance with immigration laws or to prevent deception or fraud. This agreement encompasses employees of foreign-owned businesses, but whether it also covers foreign employees of domestic companies remains unclear.
If India and the U.S. do not settle the matter and the visa fees are found to violate the GATS, the WTO may recommend that the U.S. change the fees to comply with the GATS. If the U.S. does not comply, India may then seek permission from the WTO to impose retaliatory measures against the U.S.
BAL Analysis: The new H-1B and L-1 fees face a serious risk of being found inconsistent with the GATS if they do not fall under an exception to GATS and are found to be high enough to restrict trade in services. In 2010, BAL provided legal analysis to a report by the National Foundation for American Policy predicting that proposals to significantly raise H-1B and L-1 fees (at that time, fees of $10,000 to $50,000 were proposed) would be “highly vulnerable to challenge from WTO members whose companies use H-1B and L-1 visas to perform services in the U.S.,” and could lead to retaliation against U.S. companies. In addition, the report concluded that several additional proposals to restrict H-1B and L-1 visas had a “significant likelihood of being found inconsistent with U.S. commitments under GATS.” Some of those provisions have been reintroduced in current pending legislation. The full report by the National Foundation for American Policy may be viewed here.
A fast-track program for employers seeking to sponsor foreign workers for employment-based visas will launch as a one-year pilot program, the Department of Homeland Security announced today.
The “Known Employer” program is intended to streamline employment-based immigration applications by allowing certain employers to obtain designation for fast-track processing, eliminating redundant filings and reducing costs and delays.
If the trial period is successful, the program will become permanent and all eligible employers will be able to apply for the designation.
In the pilot phase, up to nine employers, who were preselected by DHS and the State Department, will register an online profile in a newly created Known Employer Document Library database and submit Form I-950, Application for Predetermination under Known Employer Program. U.S. Citizenship and Immigration Services will then determine whether to designate them as Known Employers who meet eligibility requirements to petition for certain immigrant and nonimmigrant visas. If approved, the employers will be able to file certain immigration petitions for foreign employees without needing to resubmit company information for each petition. The visa categories covered by the pilot program include nonimmigrant H-1B, L-1 and TN visas, and EB-1 immigrants in the outstanding professor/researcher category and multinational executive/manager category.
Employers designated as Known Employers will also benefit from faster processing because USCIS officers will not need to review whether they meet the eligibility criteria for every petition and will only review the remaining criteria, such as the employee’s proposed role and qualifications, for individual petitions. Additional information about the pilot program can be found on the USCIS website.
BAL Analysis: BAL has been working with DHS to move forward with a trusted-employer program to improve processing of employment-based petitions. The pilot program is a very positive and welcome step toward increasing efficiency and lowering business costs for low-risk employers applying for employment-based visas.
IMPACT – LOW
What is the change? Algeria’s consulate in New York has run out of visa stickers and is unable to print visas.
What does the change mean? Individuals applying for Algerian visas through the New York Consulate should expect delays until new stickers arrive from Algeria.
BAL Analysis: The disruption in service affects most U.S. applicants which could cause a backlog even after visa issuance resumes.
This alert has been provided by the BAL Global Practice group. For additional information, please contact your BAL attorney.
The Department of Homeland Security has added Libya, Somalia and Yemen to the list of “countries of concern” for purposes of travel under the Visa Waiver Program. As expected, DHS continues to focus on international security threats, identifying and tightening programs with potential vulnerabilities accordingly.
Travelers who have been present in any of these three countries since March 1, 2011 will not be able to travel to the U.S. under the Visa Waiver Program and must apply for a visa at a U.S. embassy or consulate. The restrictions do not apply to individuals who are dual nationals of a Visa Waiver Program country and one of the three added countries.
Recent restrictions to the program were signed into law in December. Restricted countries originally included only Iran, Iraq, Sudan and Syria; however, the law allows DHS to update the list of countries of concern, and this is the first time it has been expanded. DHS may grant waivers on a case-by-case basis for individuals who have traveled to a country of concern on behalf of international organizations, governments or nongovernmental organizations on official duty or for humanitarian or journalistic purposes.
BAL Analysis: Visa Waiver Program travelers who have been to any of the countries of concern in the past five years will no longer be able to rely on their Electronic System for Travel Authorization to travel without a visa and should be prepared to apply for a visa and attend an interview at a consulate before planning any travel to the U.S.
A Department of Homeland Security rule takes effect today to improve programs for Australian nationals in the E-3 category and Chilean and Singaporean nationals in the H-1B1 category.
The rule is designed to remove obstacles for highly skilled workers and help provide for continued employment of H-1B1 and E-3 professionals seeking extensions of status. The changes are in line with the rules for other nonimmigrant visa categories, including the H-1B category.
Specifically, the rule allows H-1B1 and principal E-3 nonimmigrants to work for a sponsoring employer without having to apply for separate employment authorization. It also authorizes continued employment with the same employer for up to 240 days for H-1B1 and principal E-3 nonimmigrants whose status has expired, provided their employer has filed to extend their status.
The rule similarly permits continued employment if an extension request is pending for nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification.
Finally, the rule also benefits outstanding professors and researchers in the employment-based first preference category (EB-1) by allowing them to submit expanded types of evidence to prove they are internationally recognized as outstanding in their academic fields. Previously, applicants were limited to an enumerated list of initial evidence to prove their qualifications. Under the new rule, applicants will be able to submit evidence that is comparable to the delineated types of evidence.
DHS proposed the rule in May of 2014. The final rule was published in the Federal Register Jan. 15 and takes effect today.