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BAL urges employers to begin preparing for what is expected to be a record-setting year of H-1B cap petitions.
Employers and employees should start planning now to ensure their petitions are ready well in advance of the first day of the filing season on April 1, 2015. In the past two years, the number of petitions exceeded the cap in the first week of filing, triggering U.S. Citizenship and Immigration Services (USCIS) to stop accepting petitions and initiate a lottery-selection system. This trend is expected to continue this filing season. Last April, H-1B cap petitions hit a historical high of 172,500, up from the previous year’s filings of 124,500. Meanwhile, the Congressionally mandated annual cap on H-1Bs has not been raised and will remain at 65,000 for undergraduate-degree holders (plus an additional 20,000 for individuals holding advanced degrees from U.S. institutions).
BAL has begun accepting and working on cases, and we are predicting a very high demand for H-1B visas again. Total filings are certain to exceed the caps again, most likely in the first week of the filing period. It is critical that employers and employees start early so they will be ready to submit petitions for receipt by USCIS on April 1.
Finalize recruiting
Employers wishing to bring on H-1B employees for Oct. 1, 2015 start dates should work with their recruiters to finalize job offers. Employers should pay special attention to candidates who are in other visa statuses due to expire, such as F-1, L-1B, E-3 and TN.
Send job descriptions early
H-1B petitions can run into delays when an employee’s salary is lower than the prevailing wage. At the time the H-1B goes into effect, employers are required to pay H-1B employees the prevailing wage for the occupation in the geographic area where the employee will work. The prevailing wage is based on the minimum education and experience requirements for the position. The labor condition application is the employer’s declaration that it will pay at least the prevailing wage; therefore the labor condition application, which takes seven days to be certified, cannot be submitted until any potential wage issues have been resolved.
Employers can reduce the possibility of delays by sending job descriptions, including the position’s minimum requirements, to their BAL attorney as soon as they are complete. This will allow BAL to determine if there may be issues with the prevailing wage with enough lead time to seek an alternate wage survey, if possible, and keep the filing schedule on track.
Begin collecting documents
Employers and individuals should allow sufficient time to gather corporate and other supporting documents. Foreign academic transcripts, certificates and other educational documents are among the most time-consuming to prepare, as official versions must be obtained, translated and evaluated to show that they are the equivalent of at least a U.S. bachelor’s degree. Individuals who do not have a formal degree must gather and provide evidence of sufficient years of experience so that an official educational equivalency document may be prepared.
Consider alternatives
Employers should keep in mind that filing H-1B petitions does not guarantee approval. Given the anticipated demand this season, the chances of petitions being selected for adjudication could fall even lower than previous years. Employers are encouraged to explore potential alternatives to H-1B visas early enough to be able to pursue those alternatives if necessary.
BAL Analysis: Employers and employees can avoid the rush to file by laying the groundwork for H-1B filings as early as possible.
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.
Last week, Senate Republican leadership announced new committee assignments for the next Congress. Starting in January, the GOP will claim the majority in the Senate and take control of all oversight panels. This includes the Judiciary Committee, which oversees most matters relating to immigration, where they will gain one additional seat on the panel in addition to the chairmanship.
Several familiar Republican faces will appear on this committee, but there are a few newcomers as well. Their leadership of the panel is likely to play an integral role in how immigration reform initiatives fare in the upcoming legislative cycle. Here’s a quick breakdown of the 11 GOP Judiciary Committee members and their main stances on immigration.
Chuck Grassley (R-Iowa) – Sen. Grassley is senior on the committee and will likely serve as chairman. He tends to be skeptical of immigration reform in general and has been very vocal in his calls for more oversight of high-skilled work visas, particularly the H-1B program.
Orrin Hatch (R-Utah) – Sen. Hatch has recently been a main GOP advocate for high-skilled immigration reform. Last year, he co-sponsored the Immigration Innovation (I-Squared) Act, which would increase the number of H-1B petitions allowed per year, among other measures. In a recent Judiciary Committee hearing, he vowed to reintroduce the bill soon.
Jeff Sessions (R-Ala.) – Sen. Sessions opposes most immigration reform. He is one of the staunchest opponents of immigration in the Senate.
Lindsey Graham (R-S.C.) – Sen. Graham was a member of the “Gang of 8,” which wrote the comprehensive immigration reform bill that cleared the Senate during the last session. He has relatively moderate views on immigration and is a proponent of acting to solve the current broken system as soon as possible.
John Cornyn (R-Tex.) – Sen. Cornyn is senior on the Senate Judiciary Subcommittee on Immigration, Refugees, and Border Security and will likely serve as chairman of the subcommittee during the next session. He is most concerned with border issues that affect his home state of Texas, but he has also sponsored legislation that would increase high-skilled immigration, particularly for foreign graduates with U.S. degrees in STEM fields (science, technology, engineering and mathematics).
Mike Lee (R-Utah) – Sen. Lee is a very conservative member and he opposes most immigration reform measures. However, he may be open to supporting certain piecemeal immigration bills.
Ted Cruz (R-Tex.) – Sen. Cruz is very vocal in his conservative views and he opposes most immigration reform measures. He has been the most outspoken opponent in the Senate of President Barack Obama’s recent executive action on immigration, including leading the movement to attempt to block the most recent government funding bill in protest.
Jeff Flake (R-Ariz.) – Sen. Flake, who was also a member of the “Gang of 8,” has relatively moderate views on immigration and is a proponent of acting to solve the current broken system as soon as possible. As a former member of the House of Representatives, he sponsored immigration bills in favor of green cards for foreign graduates with U.S. degrees in STEM fields.
David Vitter (R-La.) – Sen. Vitter is new to the committee and has indicated an interest in securing the borders and opposing immigration executive action.
David Perdue (R-Ga.) – Incoming Sen. Perdue is new to Congress and favors strict border security, but otherwise has little track record on immigration issues.
Thom Tillis (R-N.C.) – Incoming Sen. Tillis is new to Congress and also favors strict border security and opposes immigration executive action, but otherwise has little track record on immigration issues.
BAL is paying close attention to all movement in Congress as the new session prepares to begin. We will continue to provide updates as more decisions are made and additional information becomes available. For more frequent updates and news, follow us on our BAL Government Affairs twitter page.
For additional information or questions:
Lynden Melmed, Partner Washington D.C. Direct: 202.842.5830 lmelmed@bal.com
Christiana Kern, Legislative Analyst Direct: 202.842.5831 ckern@bal.com
Employers must take steps before Dec. 31 to preserve E-Verify records that are more than 10 years old.
Under a new policy, U.S. Citizenship and Immigration Services announced in October that it would delete E-Verify records from the system when the records turn 10 years old. The only way for employers to retain them is to download the Historic Records Report.
Therefore, employers who have been using E-Verify as of Dec. 31, 2004 and wish to retain records from that date and earlier should download the report immediately, as the report will only be available until the end of 2014. On Jan. 1, 2015, 10-year-old records will be deleted and the report can no longer be downloaded. Instructions on how to download the records report are here. Employers who began using E-Verify after Dec. 31, 2004 will not have any records in the report and do not need to do anything.
USCIS adopted the document deletion policy to reduce security risks to individuals’ private information and to comply with National Archives and Records Administration policies.
BAL Analysis: Employers who wish to access old E-Verify records are reminded to act soon.
The U.S. issued 467,370 immigrant visas in fiscal year 2014 – a decrease of more than 5,700 compared with 2013 and nearly 15,000 fewer than the number of immigrant visas issued in 2012, according to statistics released by the State Department.
The number of immigrant visas spiked in 2008, rising sharply from the previous year, and reached its highest level in 2012. The number of visas issued in 2014 remained significantly higher than in 2007, but was lower than the number issued in any year since then.
Source: U.S. State Department. The federal fiscal year runs from Oct. 1 through Sept. 30.
In terms of allocation, the employment preference category represented only 5 percent of immigrant visas in 2014. The family preference category accounted for 42 percent of immigrant visas issued; 39 percent were issued to immediate relatives, 11 percent to diversity immigrants, and 3 percent to special immigrants.
Regionally, applicants from Asia received the most immigrant visas, followed by applicants from North America, Africa, Europe, South America and Oceania. Asia was the only region where immigrant visas increased, with nearly 11,000 more issued compared to last year. Immigrant visas for all other regions declined; North America dropped by 6,579, Africa by 5,316, South America by 3,339 and Europe by 1,280.
Source: U.S. State Department.
The 2014 data are preliminary and subject to change, but the State Department says any change would be statistically insignificant.
BAL Analysis: The decrease in immigrant visas can be attributed to a sharp decline in the number of immediate relatives issued visas in recent years. Visas issued to immediate relatives were down by more than 20,000 compared to 2013 and more than 50,000 compared to 2012. In all other categories, the number of visas issued either rose or remained roughly on par with 2012 and 2013 levels.
All countries with the exception of India will move forward significantly in the employment-based third preference (EB-3) category for professionals and skilled workers, according to the State Department’s January 2015 Visa Bulletin.
Priority dates for EB-3 Worldwide, Mexico and Philippines will advance by seven months from Nov. 1, 2012 to June 1, 2013. The priority date will move forward by nine months for EB-3 China, from June 1, 2010 to March 1, 2011. The priority date for EB-3 India will advance by only 14 days to Dec. 15, 2003, after advancing only marginally last month as well.
For Chinese nationals in the employment-based second preference (EB-2) category, the priority date will move ahead by one month to Feb. 1, 2010. The priority date for workers in the EB-2 India category will remain at Feb. 15, 2005 for the second straight month, after retrogressing by more than four years in the November Visa Bulletin. All other countries will remain current in the EB-2 category.
All countries will remain current in the EB-1 category.
Summary of January 2015 Visa Bulletin:
EB-1 Current across all countries
EB-2 China: Feb. 1, 2010 India: Feb. 15, 2005 All other countries: Current
EB-3 China: March 1, 2011 India: Dec. 15, 2003 Mexico: June 1, 2013 Philippines: June 1, 2013 All other countries: June 1, 2013
A union representing U.S. technology workers filed a lawsuit in federal court challenging the government’s authority and process for issuing work authorization to F-1 foreign students after they graduate from university. On Nov. 21, a federal court ruled that the union, known as “WashTech,” has standing to challenge the 17-month STEM Optional Practical Training (OPT) program, but cannot challenge the 12-month OPT program that is available to all graduates. The STEM program allows eligible students in the fields of science, technology, engineering and mathematics to extend their OPT beyond 12 months. If WashTech wins the case, foreign graduates in STEM fields may be prohibited from working and remaining in the U.S. for more than 12 months after graduation.
The same day the court allowed the lawsuit to move forward, President Barack Obama announced that the Department of Homeland Security (DHS) would expand and extend OPT for STEM graduates. This litigation will result in DHS prioritizing that rulemaking.
BAL Government Affairs has created the following Q&A to explain the case and its impact on clients.
Who brought this lawsuit?
The Washington Alliance of Technology Workers, Local 37083 of the Communication Workers of America, the AFL-CIO (WashTech) filed a complaint against DHS on March 28, 2014 in the U.S. District Court for the District of Columbia. WashTech is a union that represents workers in science, technology, engineering and mathematics (STEM) fields throughout the U.S.
What is the subject matter of the lawsuit?
The lawsuit concerns the Optional Practical Training program, which authorizes foreign students who are present in the U.S. on F-1 student visas to remain in the U.S. after completing their studies for temporary employment related to their major or course of study. F-1 students may apply for 12 months of OPT. In 2008, DHS allowed F-1 students who receive STEM degrees to apply for a 17-month extension of OPT, resulting in a total of 29 months. DHS specifies which STEM degrees are eligible for this extension on its “STEM Designated Degree Program List.”
What are the legal claims against the OPT programs?
WashTech brought several claims against DHS, which fall into two general categories. The first category of claims concerns the 12-month OPT program. First, WashTech alleged that by authorizing students to work after completing their courses of study, DHS acted beyond its legal authority to admit students to the U.S. Second, WashTech claimed that the regulations creating the program conflict with the requirement that visa holders leave the U.S. after the expiration of their status. Third, WashTech contended that DHS designed the program to bypass the strict requirements imposed on other work visa classifications, such as the H-1B visa for workers in specialty occupations.
The second group of claims challenges the 17-month STEM extension that DHS created in 2008. First, WashTech asserted that the government’s basis for allowing the STEM extension was flawed, in part because no shortage of STEM workers existed in the U.S. Second, WashTech claimed that DHS failed to follow the required procedures under the Administrative Procedure Act (APA) when it implemented the 17-month extension in 2008, and when it subsequently expanded the list of STEM fields eligible for the extension in 2011 and 2012.
What is WashTech asking the court to do?
WashTech asked the court to declare that DHS exceeded its legal authority in creating the original OPT program and to permanently prevent DHS from authorizing employment for F-1 student visa holders not currently pursuing a full course of study. WashTech also asked the court to invalidate the 17-month OPT extension, any future actions by DHS to create a final rule regarding the extension, and the 2011 and 2012 expansions. Finally, WashTech asked the court to notify all non-students working under these programs to immediately stop working.
What is the current status of the lawsuit?
DHS filed a motion to dismiss WashTech’s claims. First, DHS argued that WashTech could not bring these claims because WashTech did not demonstrate that its members were harmed by either the 12-month OPT program or the 17-month extension. Second, DHS maintained that WashTech’s claims regarding the 12-month OPT program were barred by the six-year statute of limitations for civil actions filed against the U.S. government. On Nov. 21, U.S. District Judge Ellen Segal Huvelle granted the motion to dismiss in part, and denied it in part in a 10-page written ruling.
What is the effect of the court’s recent ruling?
The court dismissed WashTech’s claims regarding the 12-month OPT program, finding that WashTech failed to identify harm to its members as a result of the program. The court also noted that since the program has existed since 1992, the six-year statute of limitations for civil claims against the U.S. has run. In effect, the court did not allow these claims to proceed.
However, the court allowed WashTech’s challenges to the 17-month STEM extension to go forward. The court found that WashTech established that its members were harmed when they faced increased competition for STEM employment due to the 2008 creation of the 17-month OPT extension.
Overall, the ruling narrows the subject matter of the lawsuit by allowing only WashTech’s claims concerning the 17-month OPT extension for STEM graduates to proceed.
How would a win for the plaintiffs impact the OPT program?
If WashTech prevails in this case, the court would declare the 17-month OPT extension unlawful, and could order all approved work under the extension to cease. Additionally, a win for WashTech would likely hinder the planned expansion of the OPT program that Obama announced on Nov. 20 as part of the Immigration Accountability Executive Action (IAEA). In a memorandum entitled “Policies Supporting U.S. High-Skilled Businesses and Workers,” U.S. Secretary of Homeland Security Jeh Johnson directed U.S. Immigration and Customs Enforcement (ICE) and U.S. Citizenship and Immigration Services (USCIS) to “develop regulations for notice and comment to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign STEM students.” A decision by the court that the 17-month OPT extension is unlawful would call into question the government’s ability to implement these changes to further expand the program.
On Dec. 3, Sarah Saldaña, President Barack Obama’s nominee to become the next ICE Director, was approved by the Senate Judiciary Committee on a narrow 10-8 vote, with all Republicans in opposition. The new hostility from the GOP may portend an uphill battle for the nominee moving toward a final vote on her confirmation.
Saldaña previously received unanimous approval by the Senate Homeland Security and Governmental Affairs Committee prior to the president’s announcement on executive action for immigration. Her new detractors in the Senate pointed to Saldaña’s backing of the president’s executive actions as the main reason for withdrawing support. Among those Senators voicing new opposition for the nominee was Senator John Cornyn (R-TX). Saldaña is the current U.S. attorney for the Northern District of Texas, and Senator Cornyn had introduced her at the prior confirmation hearing, which generally indicates support for appointment.
Saldaña could be confirmed while Democrats control the Senate, but with nearly 130 other nominations to fit onto the docket, it is unclear whether her nomination will be considered before the end of the year. If the vote occurs after Republicans take control of the U.S. Senate, her appointment appears less likely.
BAL is closely monitoring all reactions surrounding immigration executive action and will provide additional updates as new information becomes available. You can also follow more frequent updates on our BAL Government Affairs twitter page.
For additional information or questions, please contact:
Lynden Melmed Partner, Washington D.C. 202.842.5830 lmelmed@bal.com
Christiana Kern Legislative Analyst 202.842.5831 ckern@bal.com
IMPACT – MEDIUM
What is the change? The Afghan Parliament has approved a Bilateral Security Agreement governing U.S. defense contractors in Afghanistan.
What does the change mean? Parliamentary approval paves the way for rules to be established on visas, entry and exit procedures, and business registration for U.S. defense contractors working in Afghanistan.
Background: The Bilateral Security Agreement was signed Sept. 30 and was approved by the Afghan Parliament Nov. 27.
It will impact U.S. companies and employees supplying goods or services in Afghanistan under a contract with U.S. forces by making them subject to Afghan law.
U.S. contractors and their employees currently in Afghanistan with valid visas can remain after Jan. 1 until their existing visas expire, whereupon they must apply to renew their visas. The agreement provides for U.S. contractors to be eligible for multi-entry visas valid for a minimum of one year. It also requires that U.S. contractors register and obtain a business registration license valid for three years.
The agreement is silent on whether U.S. contractors and their employees must obtain work permits, but because they will fall under Afghan law after Jan. 1, it is very possible that domestic laws requiring foreign employees to hold work permits will be interpreted as controlling.
BAL Analysis: The approval of the agreement by Afghanistan’s Parliament is the first step in establishing visa rules for U.S. contractors and foreign employees. Details will be clearer when a joint Afghan-U.S. commission is established and procedures are set, including whether Afghan law requires U.S. contractors to obtain work permits and under what conditions visas-on-arrival will be available to U.S. contractors and employees.
This alert has been provided by the BAL Global Practice group and our network provider located in Afghanistan. For additional information, please contact your BAL attorney.
The United States and Canada have announced measures to allow nationals of Guinea, Liberia and Sierra Leone to stay temporarily in the U.S. and Canada rather than return home.
Guinea, Liberia and Sierra Leone have all been hit hard by the Ebola outbreak. The U.S. and Canada have implemented measures to either monitor (U.S.) or bar (Canada) travelers from Ebola-affected countries.
The more recent announcements, however, concern nationals of Guinea, Liberia, and Sierra Leone already in the U.S. and Canada. Both countries consider traveling in Guinea, Liberia and Sierra Leone unsafe, and both are now taking steps to protect nationals from those countries from having to return because of their immigration status.
In the U.S., the Department of Homeland Security said on Nov. 20 that nationals of Guinea, Liberia and Sierra Leone who are currently in the United States may apply for Temporary Protected Status for 18 months. Those who qualify for TPS designation will not be removed from the U.S. and are permitted to work and obtain an Employment Authorization Document. The TPS registration period began Nov. 21 and lasts until May 20, 2015.
Applicants with certain criminal records or who are deemed a threat to national security will be rejected. Liberians who are covered under the Obama administration’s two-year extension of Deferred Enforced Departure can still apply for TPS during the 180-day registration period. Fees for the TPS program may be waived under certain circumstances. For more information, visit the U.S. Citizenship and Immigration Services’ website.
In Canada, Citizenship and Immigration Canada said on Nov. 24 that nationals of Guinea, Liberia and Sierra Leone currently in Canada may apply for an extension of their temporary resident status as a visitor, worker or student. If nationals of the three countries have had their status in Canada expire within the last three months, they may still be eligible.
In order to have status restored, the nationals in question must not have traveled to an Ebola-affected country within the last three months, nor can they intend to travel to an Ebola-affected country while it still has “widespread and persistent/intense transmission of the Ebola virus disease.” For more information, visit Citizenship and Immigration Canada’s website.
Federal data shows that the number of international students and exchange visitors rose by 9 percent in the last year.
The U.S. now has 1.1 million active international students holding either F-1 or M-1 visas and 200,782 active exchange visitors holding J-1 visas. The jump is largely due to big increases in students from China and India. The number of Chinese students in the U.S. rose by 13 percent in the last year, while the number of Indian students rose by 28 percent.
Source: U.S. Immigration and Customs Enforcement
According to a quarterly report published by U.S. Immigration and Customs Enforcement, 75 percent of all international students hail from Asia. China (30 percent) had the most students in the U.S., followed by India (12 percent), South Korea (8 percent) and Saudi Arabia (7 percent).
The large majority of foreign students are enrolled at the bachelor’s degree levels, but there were also sizeable increases in the number of master’s degree students (16 percent) and high school students (14 percent). Nearly 400,000 foreign students, or 35 percent of all international students, were pursuing coursework in the STEM (science, technology, engineering and mathematics) subjects.
California is the most popular state for international students, followed by New York and Texas. The three states host 36 percent of all international students in the U.S.
BAL Analysis: The data confirms a high demand for F-1, M-1 and J-1 visas by foreign students and exchange visitors.