Some information on recent developments in the practice of business immigration law appears below.
1/28/2017 - President Trump Issues Immigration-Related Executive Orders
Since taking office, President Trump has issued a flurry of immigration-related executive orders. Several of these orders are largely symbolic or of questionable validity given that they require the action of Congress for actual implementation. Others are likely to face vigorous challenge in federal court. For instance, the most recent executive order, from January 27, 2017, has been met with universal condemnation from a variety of political, cultural and social groups. After a lawsuit brought by the ACLU, a federal judge has temporarily invalidated the January 27, 2017 order. The judge's decision also notes that the order is likely to be invalidated once a full decision is made. We will continue to provide updates on this issue. Trumps's immigration-related orders seek to:
As noted above, at least some of these orders are of questionable legal validity at present. Also Trump's plan for "extreme vetting" of aliens would not affect immigration beneficiaries from non-Muslim majority countries like India or China.… [link]
- Expand the list of undocumented immigrants who will be subjected to prioritized deportation
- Increase resources for Immigrations and Customs Enforcement (ICE)
- Reduce federal funding for so-called "sanctuary jurisdictions" that refuse to use state law enforcement resources for federal immigration purposes
- Reinstate the Secure Communities Program, which required local law enforcement to share with DHS the identities of people held in local jails. The Program also required local law enforcement to continue to hold undocumented jailees beyond their normal release date if ICE sought their custody
- Direct DHS to start expanding the physical wall on the Southern Border
- Expand "expedited removal" to the maximum extent of the law. The removal procedure had previously applied to border regions
(within 100 miles of any U.S. border) and recent unlawful entrants (within 14 days)
- Suspend the entire refugee program for 120 days
- Require federal immigration agencies to expand efforts to root out fraud and evaluate each applicant's “likelihood of
becoming a positively contributing member of society” and “ability to make contributions to the national
- Indefinitely ban Syrian refugees
- Impose a 90 day ban on travel by all non-US Citizens holding passports from Iraq, Iran, Libya, Somalia, Sudan, Syria, and
Yemen, with additional countries to be possibly added later
- Require in-person interviews for all nonimmigrants, thereby suspending the Visa Interview Waiver Program (VIWP)
1/26/2017 - February Visa Bulletin Issued
DOS has released the Visa Bulletin for February 2017. The Final Action dates for EB-2 and EB-3 (India) are April 15, 2008 and March 22, 2005, respectively. On January 26, 2017, USCIS determined that for family-sponsored filings, the Dates for Filing chart must be used. For employment-based preference filings, the Final Action Dates chart must be used.… [link]
1/22/2017 - New Form I-9 Version Goes Into Effect
Effective today, employers must use only the new version of Form I-9, dated 11/14/2016. The new form allows for the including of additional information, such as additional names used by the new hire.… [link]
1/4/2017 - AAO Establishes Standard for Medical Licensing Exemption Under H-1B Regulations
The AAO has established a precedent opinion on the applicable standard for “physicians of national or international renown” under 8 C.F.R. § 214.2(h)(4)(viii)(C). That regulation relates to an exemption from the medical licensing requirement for medical and osteopathics doctors seeking H-1B status.… [link]
12/29/2016 - USCIS Will Accept Certain Outdated Forms Until February 21, 2017
On December 23, 2016, USCIS issued new form versions for many application categories. In the past, USCIS has permitted a grace period under which certain outdated forms would continue to be accepted. In a surprising announcement, USCIS initially indicated that for forms revised on December 23, 2016, the agency would immediately cease accepting old form versions. Numerous advocacy groups objected and USCIS has now relented. USCIS announced on December 29, 2016 that it will accept prior versions of forms that were revised on December 23, 2016, until February 21, 2017. The only exception to this grace period is for Form N-400. The new fee schedule will apply regardless of form version.
12/23/2016 - USCIS Increases Most Application Fees
Effective December 23, 2016, USCIS has updated most of its fees. Notable increases include the Form I-129 ($460), Form I-539 ($370), Form I-765 ($410), Form I-131 ($575) and Form I-140 ($700). It should also be noted that several important fees like the biometrics fee, premium processing service fee, I-129 user fee, Public Law 114-113 fee and fraud prevention and detection fee have not changed.
12/22/2016 - USCIS Repeals NSEERS Religious Profiling Program
In reaction to the 9/11 attacks, the Department of Homeland Security instituted a highly onerous reporting program called the National Security Entry-Exit Registration System (NSEERS). The program subjected adult male nonimmigrants from most Muslim-majority countries to mandatory, routine reporting before DHS officials. DHS put the program on hold in 2011 after essentially admitting that the program was ineffective and unduly burdensome. Given President-Elect Trump's recent rhetoric against Muslim immigrants, many feared that the Trump administration would rejuvenate the dormant NSEERS program. In a suprising move, the Obama administration has repealed the NSEERS regulations in the last days of his presidency. This move will make it slightly more difficult for a Trump administration to conduct selective profiling of nonimmigrants from Muslim-majority countries in the next term.
12/15/2016 - Department of State Releases Visa Bulletin for January 2017
DOS has released the Visa Bulletin for January 2017. Notably, the Bulletin shows progression in the cutoff date for EB-2 (India) by about ten weeks to April 15, 2008. EB-3 (India) remains static at March 15, 2005. The EB-1 category continues to be current for all countries. USCIS has confirmed that Form I-485 applicants in the family-based categories can use the "Dates for Filing" category listed in the Visa Bulletin, whereas employment-based applicants must use the "Final Action Dates" chart.
11/18/2016 - USCIS Finalizes AC21 Regulation
USCIS has released a Final Rule geared towards helping employment-based immigrant visa and H-1B beneficiaries. The Rule takes effect on January 17, 2017. It consolidates many existing agency interpretations and policies into regulations that cover the following areas:
In addition, the Final Rule creates a number of new benefits for certain employment-based immigration beneficiaries:
- Allowing beneficiaries to use the earliest priority date among multiple approved I-140s
- Permitting those with pending professional licenses to apply for H-1B visas
- Defining how H-1B status can be extended post-6th year under AC21
- Describing how I-485 applicants can change their sponsoring employers under AC21
- Defining H-1B portability requirements in "H-1B transfer" situations
- Defining rules for H-1B cap-exemption, recapture and remainder procedures
The new regulations contain a number of additional details not captured in this summary, and interested parties can benefit from a close reading of the rules. [link]
- Permitting E, H, L and O nonimmigrants who have an approved I-140 and who are facing "compelling circumstances" to apply for a renewable 1 year EAD, the usage of which would render them in "authorized stay" but out of status.
- Creating 10 day grace periods before and after authorized validity periods of stay for E, L and TN nonimmigrants
- Creating a 60 day unemployment grace period for E, H, L, O and TN nonimmigrants
- Confirming that an I-140 remains valid for AC21 H-1B purposes (but not for green card purposes) after it has been approved for 180 days, despite withdrawal by the employer
11/18/2016 - Election of Donald Trump as U.S. President
Despite losing the popular vote, Donald Trump has won the U.S. presidency by gaining the majority of electoral ballot voters after nationwide elections on November 8, 2016. Trump's anti-immigration campaign rhetoric has raised widespread concerns about the fate of the American immigration system. While Trump initially promised to deport the 11 million undocumented people living in the country, post-election he has backed down from that claim to say that only criminal aliens will be deported. The number of deportations is already at a historic high under President Obama, and that trend will continue. President Obama's immigration-related executive orders (including the Deferred Action for Childhood Arrivals system) have already been stymied in court, and are now doomed under the Trump presidency. Trump has also hinted at the revival of the ineffective and now-latent NSEERS system, which from 2002 to 2011 required male nonimmigrants from certain Muslim-dominated countries to register with the Department of Homeland Security.
The President-elect has been equivocal on employment-based immigration issues. In some speeches, he has lambasted the H-1B program, even though his own companies have used the program extensively. Trump's selection of notorious anti-immigrant legislator Jeff Sessions for the post of U.S. Attorney General suggests that the federal government will increase scrutiny on foreign workers and their employers in the coming years. That said, only Congress can make sweeping changes to the country's immigration laws. Many members of Congress remain in favor of immigration, and so the whole-scale dismantling of existing visas and programs is very unlikely.
11/15/2016 - USCIS to Apply "Dates for Filing Visa Applications" Cutoffs for Most Categories in December 2016
In December 2016 USCIS will allow Form I-485 adjustment applicants to utilize the "Dates for Filing Visa Applications" chart if the basis for the application is a Family Based immigrant petition in the first through fourth categories, or an Employment Based immigrant petition in the first through fourth categories. Priority date cutoffs remain largely unchanged from November 2016.
10/4/2016 - US Supreme Court Rejects Request for Rehearing in Obama Executive Action Case
The U.S. Supreme Court has rejected the federal government's request to rehear United States v. Texas. In June 2016, the Court effectively blocked Barack Obama’s immigration executive actions from taking effect. While the executive actions would not have changed the law (legislation), they attempted to create numerous administrative benefits to certain undocumented people. The case is now headed to the Fifth Circuit, where the federal government is likely to lose given that court's conservative history. [link]
9/15/2016 - USCIS to Apply "Dates for Filing Visa Applications" Cutoffs in October 2016
As we noted earlier, last year the DOS switched to a revised Visa Bulletin format, under which two filing categories would be publicized: "Dates for Filing Visa Applications" and "Application Final Action Dates." USCIS announces each month which cateogry will apply for purposes of I-485 adjustment application filings. The "Application Final Action Dates" cateogry generally features earlier priorty date cutoffs. Thus far, the USCIS has adopted the "Application Final Action Dates" chart every month. For the first time, in October 2016 USCIS will allow adjustment applicants to utilize the "Dates for Filing Visa Applications" chart in determining who is eligible to file a Form I-485 given priority date cutoffs.… [link]
8/24/2016 - September Visa Bulletin Issued
DOS has released the Visa Bulletin for September 2016, the last visa bulletin for the fiscal year. The Bulletin shows progression in the cutoff dates for EB-2 (India) and EB-3 (India), which advanced to February 22, 2005, and February 15, 2005, respectively. Reports indicate that USCIS may consider allowing employment and family-based applicants to use the more favorable "Dates for Filing Visa Applications" chart in October 2016.… [link]
7/28/2016 - I-601A Provisional Waiver Program Expanded
USCIS has issued a final rule that, effective August 29, 2016, will permit the filing of I-601A unlawful presence waivers by all applicants who can establish extreme hardship to a USC or LPR. In 2013, DHS started allowing certain immigrant visa applicants in the U.S. with six months or more of unlawful presence to apply for waivers of inadmissibility prior to leaving the US. Previously, waivers had to be filed at consulates abroad. The 2013 change applied only to the immediate relatives of U.S. citizens. Now, all IV applicants (regardless of immigration visa category) will be eligible to apply for a provisional waiver.
6/12/2016 - July Visa Bulletin Issued
DOS has released the Visa Bulletin for July 2016. Mexico has reached its congressionally mandated EB-4 visa limit for FY2016. The January 1, 2010 cut-off date applicable for (EB-4) Mexico is the same cut-off date that was imposed earlier in the year in the EB-4 categories for El Salvador, Guatemala, and Honduras.… [link]
5/11/2016 - June 2016 Visa Bulletin Issued
DOS has released the Visa Bulletin for June 2016. The bulletin includes information regarding the retrogression of several family-sponsored and employment-based final action dates for June 2016. As in the past, USCIS has advised that for family-sponsored and employment-based filings, the Application Final Action Dates chart in the DOS Visa Bulletin will apply.… [link]
5/2/2016 - Data Entry Completed for FY2017 H-1B Cap Petitions
USCIS has confirmed that it has completed data entry of all fiscal year 2017 H-1B cap-subject petitions selected under their computer-generated random lottery. USCIS will now begin returning the over 100,000 H-1B cap-subject petitions that were not selected.
4/14/2016 - USCIS Finalizes New 24 Month STEM OPT Rule
In 2015 an anti-immigration group posing as an Information Technology union successfully challenged the validity of the Department of Homeland Security's STEM OPT program. The District Court for the District of Columbia found various procedural deficiencies in the way that DHS had published the existing 17 month STEM OPT program. Instead of vacating the program outright, the court permitted DHS to revise its STEM rules to comply with the requirements of the Administrative Procedure Act (APA). DHS has now finalized the new STEM OPT rules after considering public comments from thousands of commenters. The new STEM OPT rule goes into effect on Tuesday, May 10, 2016. The new rule expands STEM OPT eligibility to 24 months, in place of the earlier 17 month program. Notably, an employer seeking to hire a STEM student must now file a very detailed training plan on Form I-983 with the student's DSO, in addition to being an E-Verify company. STEM OPT trainees must be paid on par with similarly situated US workers, and must work at least 20 hours per week. DHS will conduct periodic site visits at worksites to ensure compliance. STEM OPT students, employers and DSOs also have various reporting responsibilities under the new rule. For more information on the new requirements for STEM OPT extensions visit this page.
4/13/2016 - H-1B Lottery Conducted for FY2017
USCIS has confirmed that it received around 236,000 H-1B petitions during the recent H-1B cap season, which lasted from April 1, 2016 to April 7, 2016. Under current law, only 65,000 H-1B visas can be issued under the general category. Also 20,000 U.S. Master's exemption visas are available. Given the large number of filings, the chances of lottery selection for cases filed this season are around 33%. USCIS will now begin notifying applicants about which cases met the lottery. USCIS will begin premium processing for selected H-1B cap cases no later than May 16, 2016. Premium processing will continue as usual on non-cap cases.
4/12/2016 - May 2016 Visa Bulletin Issued
DOS has released the Visa Bulletin for May 2016. The Bulletin is largely unchanged from the prior month in most employment-based and family-based visa categories. USCIS has yet to confirm whether it will consider the "Final Action Date" or the "Dates for Filing" category for purposes of accepting adjustment applications. Most likely it will rely on the "Final Action Date" as it has in the past few months. The Visa Bulletin also states that visa retrogression is expected in the near future due to hightened demand.
3/9/2016 - April 2016 Visa Bulletin Issued
DOS has released the Visa Bulletin for April 2016. The Bulletin reflects modest forward movement in various employment-based and family-based visa categories. USCIS has yet to confirm whether it will consider the "Final Action Date" or the "Dates for Filing" category for purposes of accepting adjustment applications. Most likely it will rely on the "Final Action Date" as it has in the past few months.
02/29/2016 - H-1B Quota Likely to be Reached in the First Week of April
The latest estimates suggest that the H-1B quota for Fiscal Year 2017 (i.e. starting October 1, 2016), which opens on April 1, 2016, is likely to be exhausted in the first week of April. In that scenario, all cases received in the first week will be subject to a lottery. More information on F-1 students filing change of status petitions under the H-1B cap can be found here.
01/12/2016 - Filing Fees Increased for Certain Large Nonimmigrant Petition Filers
The Consolidated Appropriations Act, 2016 (Public Law 114-113), signed into law by President Obama on December 18, 2015, increases fees for certain H-1B and L-1 petitioners. These petitioners must submit an additional fee of $4,000 for certain H-1B petitions and $4,500 for certain L-1A and L-1B petitions postmarked on or after December 18, 2015. This affects companies that have over 50 employees, over 50% of which are H or L workers.
11/3/2015 - USCIS Issues Proposed Rule for Revised OPT STEM Program
Earlier this year, a federal district court invalidated the USCIS's STEM OPT program, giving the agency until February 12, 2016 to adopt revised regulations. As expected, USCIS has proposed revised regulations for the OPT STEM program. The proposal contains a number of key differences from the prior version of OPT STEM. First, the proposed regulations expand STEM OPT to 24 months per educational level, and attempt to clarify which degrees qualify as STEM-eligible. Significantly, the regulations also impose a number of regulatory burdens on prospective STEM employers. As before, E-Verify registration is required and the employment opportunity must be directly related to the STEM degree. In addition, an employer would now be required to implement a formal Mentoring and Training Plan. This training would practically be similar to on-the-job training provided at various training institutes. The employer would also be required to attest that the terms and conditions of the STEM practical training opportunity (including duties, hours, and compensation) are comparable to similar opportunities available to U.S. workers. This could establish a de facto requirement that STEM employees be paid the Level 1 Wage under the DOL's OES Wage Data system. Concerned parties have until November 18, 2015 to respond to USCIS about the proposal.… [link]
10/15/2015 - USCIS Provides First Update on October 2015 Visa Bulletin Fiasco
Without providing any info on the reasoning behind its reversal on the October 2015, the USCIS has issued an update on how it intends to proceed under the new 2-part Visa Bulletin.
Approximately one week after DOS releases the Visa Bulletin each month, USCIS will post an announcement to inform adjustment of status applicants whether they can rely on the "filing dates" chart or the "final action dates" chart in the Visa Bulletin to determine when they can file their applications. Thus, in some months the "final action date" will determine which I-485 applications can be filed, and in other months the ""filing date" will apply for that purpose.
9/25/2015 - New October 2015 Visa Bulletin Reflects Earlier Cutoff Dates
With the end of the month just a few days away, the Department of State has issued a revised visa bulletin for October 2015. Notable changes to the revision are new cutoff dates for EB-2 India (July 1, 2009), EB-2 China (January 1, 2013), and EB-3 Philippines (January 1, 2010). More information on the revision can be found here.
9/16/2015 - Revised October 2015 Visa Bulletin Allows for Earlier Adjustment Applications
The Department of State, in consultation with the USCIS, has revised the format for Visa Bulletins in the October 2015 version. Under the new format, the bulletin will list both a "Date for Filing Visa Applications” and an "Application Final Action Date." The former date will generally be earlier than the latter. The "Application Final Action Date" refers to the date when USCIS will finalize and approve an adjustment application or immigrant visa application because a visa number has become available. In addition, in certain months designated by USCIS, aliens will be able to file I-485 applications if their priority dates are before the "Date for Filing Visa Applications.” In other months (and as before), I-485 applications can only be filed if the applicable priority date is before the "Application Final Action Date." A fuller discussion on the revised Visa Bulletin format and its impact on technology companies and their employees can be found here.
8/13/2015 - D.C. District Court Temporarily Invalidates STEM OPT Program
In April 2008, the USCIS passed an interim final rule creating the STEM Optional Practical Training (OPT) program for F-1 students graduating with a degree in science, technology, engineering, or mathematics (STEM). Since then, thousands of students have availed of the STEM OPT program to secure employment. On August 12, 2015, an anti-immigration “union” consisting of just 3 members succeeded in convincing the D.C. District Court to overturn the STEM OPT program because the April 2008 interim final rule had not followed the proper procedure for rulemaking under the Administrative Procedure Act. Even so, the judge stayed the effect of the decision until February 12, 2016, during which time the DHS can re-submit the 2008 Rule for proper notice and comment. There is little practical significance to the court decision as the STEM OPT program continues unaffected until February 12, 2015, and the DHS will almost certainly propose and finalize a rule before then. In fact, the decision may prove to be helpful to F-1 students as USCIS could use the notice-and-comment procedure to expand benefits under STEM OPT.… [link]
7/22/2015 - USCIS Provides Final Guidance on When An Amended Petition is Required Given Worksite Changes
As we reported earlier, under the AAO's recent Matter of Simeio Solutions decision, many worksite changes will require the filing of an amended H-1B petition prior to the change. USCIS has now issued final guidance that creates a phased-in compliance period for H-1B amendment filings. If an H-1B employee shifted to a non-commutable location not covered by a prior H-1B petition before April 9, 2015 (the date of the Simeio decision), then an amended petition is not required. If the shift occurred between April 9, 2015 and August 19, 2015, petitioners have until January 15, 2016 to file an amended petition. Any shift that occurs after August 19, 2015 must be preceded by an H-1B amendment. If an amended petition is not filed for affected employees within these guidelines, the company and its employees will be out of compliance with USCIS policy and would thus be subject to adverse action.
6/29/2015 - USCIS Begins Rulemaking Process on Revisions to I-485 Adjustment of Status
The USCIS has begun the process of revising rules relating to the adjustment of status (I-485) process. First, USCIS will issue a proposed version of the rule and solicit public comment. That is tentatively expected to occur around October 2015. Based on the public's comments, USCIS will then finalize the rule (or possibly abandon the rule altogether). The proposed rule is expected to allow for early filing of I-485 applications by beneficiaries of approved I-140 immigrant petitions. The rule will also contain an elucidation of the "same or similar" requirement that applies in AC21 permanent portability case.
5/27/2015 - Federal Appeals Court Permits Injunction Against Obama Immigration Measures
The Fifth Circuit Court of Appeals has decided not to lift an earlier stay implemented by a federal district court in Texas. The stay has put the much-touted Obama immigration plan on hold. A final decision on the lawsuit, which was brought by a total of 26 states, remains pending at the Fifth Circuit. The lawsuit claims that President Obama's proposed changes to immigration policy are illegal since they are essentially legislative changes that were not vetted by Congress. The case is likely to go before the Supreme Court for resolution. The rule allowing H-4 EADs is unaffected by the stay since it was passed as a regulation under the usual notice-and-comment rulemaking procedure.
5/22/2015 - USCIS Provides Draft Guidance on When An Amended Petition is Required Given Worksite Changes
As we reported earlier, the AAO's recent Matter of Simeio Solutions decision has resolved the previously-unsettled question of whether worksite changes require an amended H-1B petition or just a new LCA filing. In an important web alert on the decision, USCIS has reiterated that an employer must generally file an amended petition before placing an H-1B employee at a worksite requiring a new LCA. Any H-1B employees who are currently working at a worksite not covered by a prior H-1B petition must have an amended petition filed by August 19, 2015. Failure to meet that deadline renders the H-1B employee out of status. After that date, an employer must file an amended petition before placing an H-1B employee at a new worksite requiring a new LCA, with limited exceptions. Employees are permitted to begin working at the new worksite on or after the amended petition's filing date.
5/21/2015 - USCIS Issues FAQs on H-4 EAD Processing
USCIS expects over 150,000 EAD applications to be filed given the new regulation allowing for H-4 EADs. While the Final Rule authorizing those filings serves as a good source of information on how those cases will be filed, the USCIS has issued an FAQ to provide further information on case handling. One notable point is that, as with L-2 EADs, H-4 EADs must be filed by someone in the United States. Travel abroad is permissible but may lead to practical issues with biometrics scheduling and timely receipt of mail.
5/19/2015 - USCIS Suspends Premium Processing for H-1B Extension Cases
Because of the large number of H-4 EAD cases that are expected to be filed on or after May 26, 2015, USCIS has suspended premium processing for H-1B extension cases from May 26, 2015 until July 27, 2015. Cases submitted for premium processing prior to May 26, 2015 will probably continue to be processed within the 15-day calendar period. If they are not, the premium fee will be refunded.
4/9/2015 - AAO Decides that Amended H-1B Petitions Are Required for Certain Worksite Changes
Resolving an issue that had been lingering for a few years, the AAO has decided in Matter of Simeio Solutions, a precedent decision, that a change in the place of employment of an H-1B worker will require an amended H-1B petition if the new worksite is outside the commutable distance of the old worksite listed on the prior Labor Condition Application (LCA) filed for the worker. A new worksite within the same geographic area as that identified on a prior LCA will not require an H-1B amendment.… [link]
2/24/2015 - USCIS Expands Work Authorization to Select H-4 Spouses
Pursuant to a proposed rule issued last year, the USCIS will begin accepting applications for H-4 work authorization starting on May 26, 2015. To qualify, the H-1B spouse must have an approved I-140 or must have extended H-1B status beyond the normal 6 year limitation.… [link]
11/20/2014 - President Obama Announces Sweeping Changes to Various Immigration Procedures
On November 20, 2014 President Obama announced numerous changes to current immigration policy, in an effort to address the failure of Congress to pass comprehensive immigration reform. The planned changes include the following:
Each of the programs will have various start dates. For instance, the expansion of DACA will begin in 90 days. On the far end, new regulations allowing H-4 spouses to work, clarifying L-1B standards, and retooling the immigrant visa system will only go into effect after the notice-and-comment rulemaking process, which will take several months at least. Also, there are chances that opponents of immigration reform will stall the implementation of these changes via federal court challenges. Prospective clients seeking to take advantage of these benefits should contact our firm at the number to the left. Click the following link for a fuller summary of the changes.… [link]
- Removal of the upper-age limit to the DACA program
- Expansion of Deferred Action to certain parents of U.S. citizens and lawful permanent residents (DAPA)
- Expansion of provisional waivers for unlawful presence to spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens
- Changes to business visa policy, including expansion of OPT options, work authorization for H-4 spouses, clarification of L-1B standards, and relaxation of the "same or similar" language under AC21 portability
- Minor changes to naturalization processing
11/12/2014 - National Visa Center No Longer Requiring Originals
The National Visa Center (NVC) acts as a gatekeeper to U.S. consulates, requiring that visa applicants submit certain background documents to proceed with case processing. In the past, many visa applicants were perturbed by the NVC's routine request for the submission of original civil documents. Instances of the NVC losing originals were not uncommon. In a reversal of policy, the NVC will now accept photocopies of civil documents.
9/11/2014 - Visa Bulletin - EB-2 India Priority Date Update
Despite reports to the contrary, the cut-off for EB-2 (India) is effectively May 1, 2009 under both the September and October 2014 Visa Bulletins. True, because of heavy demand, visa numbers for EB-2 (India) have now become unavailable in the month of September 2014. Even so, USCIS will NOT reject EB-2 (India) cases having a priority date of May 1, 2009 if such cases are filed in September. Rather, such cases will be held for processing until a new batch of visa numbers becomes available on October 1, 2014. The October 2014 cut for EB-2 India will remain at May 1, 2009. The EB-2 India category is expected to retrogress significantly in subsequent Visa Bulletins, to a date as early as 2005.
5/12/2014 - USCIS Issues Proposed Rule Permitting Employment of H-4 Dependent Spouses
The USCIS has issued a proposed rule in the Federal Register that, if finalized, would allow H-4 nonimmigrant spouses to seek work authorization provided that the principal H-1B nonimmigrant is in the process of seeking lawful permanent resident status through employment. Public comments to the rule are due by July 11, 2014.
1/20/2014 - Department of State Modifies Personal Interview Requirement for Certain Visa Applications
The Department of State has finalized rules for waiver of visa under certain circumstances. Under 9 FAM 41.102 Note 3.3a, a consular officer can waive the visa interview requirement for applicants seeking to renew any nonimmigrant visa within 12 months of expiration of the initial visa in the same classification. Also, for certain categories, interview waivers are available for nonimmigrant visa renewals up to 48 months after expiration of the initial visa in the same classification. … [link]
8/5/2013 - Department of State Institutes Immigration Benefits for Same-Sex Spouses
On June 26, 2013, the Supreme Court held Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. That decision has many immigration-related implications for same sex couples. The Department of Status has instructed consular officers to review visa applications filed by a same-sex spouse in the same manner as those filed by an opposite-sex spouse. A same-sex marriage is now valid for immigration purposes, as long as the marriage is recognized in the "place of celebration."
6/27/2013 - U.S. Senate Passes Immigration Reform Bill (S.744)
After years of speculation and discussion, the Senate has finally passed a comprehensive immigration reform bill by a vote of 68-32. Click here for our summary and analysis of the key provisions of the bill as they affect IT companies. The bills allocates billions for border security, creates an avenue for undocumented workers to acquire temporary legal status, requires all employers to use E-Verify, and increases the number of visas available to high-tech workers trained in the sciences, technology, engineering or math (STEM) categories. Though passed, the bill is not yet law. Republicans in the House of Representatives have expressed their opposition to the bill. Bills must pass both chambers in order to become law.
6/26/2013 - U.S. Supreme Court's decision in Windsor v. United States Opens Avenue for Same-Sex I-130 Immigrant Petitions
In a historic 5-4 vote, the U.S. Supreme Court has overturned California's Defense of Marriage Act (DOMA), which had sought to ban gay marriage in the state. USCIS has confirmed that this opens up the possibility of immigrant petition filings by same-sex couples under the Immediate Relative (IR) category.
5/2/2013 - CBP Begins Issuing Paperless I-94s
Under new CBP regulations, separate I-94 forms will no longer be issued for nonimmigrants arriving by air and sea. Instead, CBP officers will place an admissions stamp on the passport of the arrival. That stamp can be used as proof of admission, visa category and duration of stay. Aliens can also print a copy of the I-94 from the CBP website (www.cbp.gov/I94) after 24 hours of admission. For form filing purposes, USCIS will consider either the paper I-94 printed from the CBP website, or a copy of the admission stamp from the alien's passport.
07/24/2012 - USCIS Steps Up Denials of Post-completion OPT Applications
F-1 students applying for post-completion OPT have numerous requirements and deadlines to be aware of. USCIS has recently increased denials for applications falling short of these requirements. Applicants are required to submit their applications between 90 days prior to and 60 days after the program end-date, and must file within 30 days of the DSO's OPT recommendation on Form I-20.
06/15/2012 - DHS Institutes Next Best Thing to the DREAM Act
While the DREAM Act did not pass in Congress, DHS has annouced that it will not deport certain eligible youth who are undocumented. Eligible individuals must be between 15-30, have entered before age 16, must have a minimal criminal record, have maintained residence for 5 years, and be a veteran or have (or be pursuing) a high school degree.
8/2/2011 - USCIS Revises FAQ's on Establishing the "Employee-Employer Relationship" in H-1B Petitions
Shortly after the issuance of the Neufeld Memo in January 2010, the USCIS issued a set of FAQ's addressing how an H-1B Petitioner could establish that it had the requisite employer-employee relationship with the H-1B Beneficiary. These FAQ's have been revised with additional information. As before, the emphasis is on documentary evidence establishing the employer's right to control the employee in the employee's performance of duties.… [link]
3/3/2011 - DOL Intends to Increase Scrutiny in Permanent Labor Certification Adjudications
In an annual report highlighting its strategic goals for the upcoming year, the Department of Labor stated that its Employment and Training Administration intends to apply stricter scrutiny to labor certification applications. For instance, in June 2011 a new PERM application form will be instituted, which will require more detailed information regarding certain aspects of recruitment conducted. DOL intends to conduct more audits, and also increase the number of "supervised recruitments", which involve a high level of governmental participation in the PERM recruitment process. In its report, the DOL admits that it favors audits and supervised recruitments because these "integrity measures generate the highest number of denials and non-certifications, outcomes which enhance program integrity and contribute to jobs being available
to U.S. workers." In other words, DOL now seems to see PERM denials as part of its mission of protecting U.S. workers. The agency also intends to start charging a fee for PERM applications.
2/18/2011 - Export Control Requirements for I-129 Petition Filers
Click here for an automatic form that allows you to contact your district's Congressional representatives about the need for Comprehensive Immigration Reform.
USCIS now requires employers filing Form I-129 for H, L, and O visa status on behalf of foreign nationals to certify that they have (1) reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and (2) have made a determination as to whether or not an export control license is required to release any controlled technology or technical data to the foreign national. If an export license is required to be obtained before such release, the employer must attest that the worker will not be exposed to covered technologies without first obtaining an export license covering the foreign worker. Employers can confirm whether they require an export license by directly contacting the Bureau of Industry and Security, U.S. Department of Commerce.
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Join us on Sunday, February 12, 2017 at 8:00pm EST for a free, 1-hour webinar entitled "The Future of the H-1B Program." We will discuss the various currently-pending legislative bills, executive orders and judicial cases impacting the H-1B program. Click here at that time to join the conference.
Akshat Tewary has recently been cited in various publications for his advocacy work on corporate banking reform.
A recent AAO decision, Matter of Simeio Solutions LLC, has significantly changed immigration law as it relates to H-1B employees who shift to new worksites. Read our analysis of the case, which answers the question: When Are Amended H-1B Petitions Required for Worksite Changes?.
The House of Representatives is considering immigration reform measures. Click here for our summary of the Senate's version of immigration reform, which was passed in June 2013. The bill is particularly significant for IT companies that rely heavily on foreign workers.
Companies that sponsor H-1B petitions can proactively update their information in VIBE, which is the commercial database that USCIS uses to check company status. This link allows customers to update their records without being subject to commercial marketing by Dun and Bradstreet.
In a troubling development, the USCIS California Service Center has informally publicized that an amended H-1B petition should be filed if an LCA is filed anytime after approval of a prior, un-expired petition. USCIS is expected to formalize a position on this issue soon.
Applicants for a change from F-1 to H-1B status under the "Cap Gap" regulations should remember that cap-gap work authorization only applies until September 30, 2011. If a Cap Gap H-1B petition remains pending on October 1, 2011, the H-1B beneficiary is eligible to stay in the US while that change of status petition is pending, but effective that date he/she cannot work.
USCIS has provided a Q+A covering the F-1 to H-1B Cap Gap regulations.
Our sports immigration blog covers the issue of major league sports lockouts, and what effect they have on the immigration status of professional athletes.
Based on recent USCIS processing trends, we have issued an article addressing the implications of the January 2010 Neufeld Memorandum for computer consulting companies filing H-1B petitions.
In light of recent publicity regarding refusals of traveling H-1B workers at the Newark port-of-entry, we have prepared an information bulletin entitled "Is Traveling a Violation? Tips for H-1B Workers Going Abroad." This article covers implications of the Neufeld Memo, 221(g) denials at the Consulate, and admission refusals by CBP officers.
We have issued an information summary entitled "H-1B Cap Filings for Current F-1 Students," which covers various issues facing F-1 students relating to Optional Practical Training (OPT) and H-1B Cap filings. The article provides a summary of both employment categories and discusses various issues such as employer obligations under OPT and H-1B and the Cap-Gap provisions.
As we reported earlier, the USCIS's Office of Fraud Detection and National Security (FDNS) has begun to increase the number of investigations and random audits being conducted on H-1B employers. USCIS-Vermont Service Center has confirmed that it expects to conduct 20,000 site visits to H-1B employers in the near future. These audits are in addition to the normal complaint-driven investigations that have always been conducted by state-level Department of Labor agencies. Moreover, there have been troubling reports that in some cases, FDNS is "outsourcing" H-1B auditing functions to private detectives with no formal training or allegiance to the USCIS. It is highly questionable whether lay private detectives and investigators would know of the complex regulations, nuances and exceptions that relate to employers' obligations under the H-1B program. H-1B employers are encouraged to pay due attention to their compliance requirements in the near term, including proper maintenance of I-9 records and LCA-related public access file/notice postings.
Our firm conducted a web teleconference on March 6, 2009 on the topic of "LCA Compliance Issues for Employers of H-1B Workers."