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New H-1B Registration Starts March 1, 2020

Hire American/Buy American policy used to benefit the government

In a move under the Hire American/Buy American Executive Order touted as aiding US employers, the US Citizenship and Immigration Services in November actually placed an extra burden on US employers sponsoring H-1B professional workers. The only real winner from this change is the US government—not American employers or workers.

The old rule

In the past, employers filed H-1B petitions with filing fees and the USCIS would then randomly select petitions up to the limited quota available. The agency had to deal with more than twice as many petitions as the quota allowed. It took the USCIS three months on average to return unselected petitions and the filing fees paid by employers, at considerable expense to the government.

The new rule

Under the new rule, the USCIS has increased both the fees employers pay and the steps employers must take. Now employers seeking to file H-1B, cap-subject petitions for the 2021 fiscal year will be required to first register and pay a non-refundable $10-per-petition registration fee.

A separate registration must be submitted for each H-1B requested. The registration must be completed between March 1 and March 20, 2020. Petitioners will receive electronic notification that USCIS has accepted the registration for processing. As before, employers are not permitted to submit more than one registration for a single employee in a fiscal year.

The USCIS will then run a random selection process on the registrations received and will notify petitioners whose registrations were selected. The petitioner will then have up to 90 days to file a full petition with supporting documents and all of the usual filing fees.   

Dentons insights

Imposing additional fees and procedures on US employers benefits no one but the government.

While employers will find out sooner than under the old rule if an employee’s petition is selected, that is no guarantee the petition will be ultimately granted. To the contrary, the increasingly conservative positions being taken by USCIS adjudicators in evaluating petitions—a process without legislative or regulatory approval—make denial more likely than ever.

And early notice of selection for the lucky few means earlier notice of non-selection for the majority of registrations. That is particularly bad news for most F-1 visa foreign students.

The old rule allowed continued employment of certain F-1 students whose authorization otherwise ended. Known as a “cap-gap extension,” this rule provided that a pending H-1B petition for a foreign student with OPT or STEM OPT ending before September 30 acted to extend employment authorization until September 30 or the date that the employer receives notice that the H-1B petition is not selected, whichever is earlier. Such rejection notices were usually not received until mid-June or later, which benefited many employers and students. Under the new rule, unselected registrations will not enjoy cap-gap benefits and employers will lose more workers sooner.

We also expect that US employers will see even longer USCIS-processing times for selected H-1B petitions.

In the past, the USCIS began processing petitions after the selection process was completed—usually mid-April—yet the agency would still be sending out petition approvals and denials into October. Under the new process, the USCIS says registrations will be selected by the beginning of April and employers will have 90 days to file. With some petitions filed as much as three months later under the new rule, it seems likely employers will sometimes see USCIS processing completed in December, or 90 days later than now.

The government claims this new registration process will dramatically streamline processing by reducing paperwork and data exchange, and will result in an overall cost savings to US employers. In fact, the real beneficiary of the new process is the agency itself.

By limiting the number of petitions eligible to file, the USCIS reduces its own workload. It will not have to deal with sending out rejection notices and returning unselected petition packages. Government efficiency is a good thing, but better without the pretense that the change helps Americans.

US employers will continue to bear the cost of recruiting and making offers to more prospective hires than they will ultimately be allowed to employ. They will still have to pay lawyers to evaluate jobs offered and candidate qualifications to make sure registrations are only done for qualified cases. The fact that some forms will not need to be typed or documents copied will save employers some money, but only on the clerical aspects of the process.

As with any new rule, there are clouds of uncertainty. Employers, candidates and lawyers must be prepared for last-minute process changes. The USCIS already announced that it will soon release more information regarding the new registration. And there is always the possibility that a court decision will ban the implementation of this new process and we will have to revert back to previous practices.

Dentons will continue to monitor this issue. Please contact your Dentons lawyer if you have any questions.

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New H-1B Registration Starts March 1, 2020

Stricter unlawful presence rules for foreign students and exchange visitors

Individuals in the United States on F, J and M visas (including F-2, J-2 and M-2 dependents) who fail to maintain their status will start accruing unlawful presence earlier, potentially spelling trouble for future immigration benefits, according to new US rules.

The US Citizenship and Immigration Services (USCIS) announced on Friday May 11, 2018, that the agency is changing the way it calculates the accrual of unlawful presence for nonimmigrant students and exchange visitors. The changes increase the likelihood that individuals in these two nonimmigrant visa categories will have problems on future immigration benefits.

Non-US citizens can be barred from obtaining visas, entering the US, and obtaining immigration benefits based on extended periods of unlawful presence in the US. If the individual accrues more than 180 days (but less than 1 year), he or she may be barred from re-entry for 3 years. Unlawful presence greater than 1 year can result in a 10-year bar.

The new policy, which becomes effective August 9, 2018, provides that nonimmigrant students and exchange visitors will start accruing unlawful presence either:

(1) the day after the visa holder no longer pursues the course of study or the authorized activity, or the day after they engage in an unauthorized activity; or

(2) the day after they complete the course of study or program, including any authorized practical training plus any authorized grace period.

In addition, visa holders start accruing unlawful presence on:

(3) the day after their I-94 expires; or

(4) the day after an immigration judge orders their deportation or removal of the individual.

Under the previous policy, an F, J or M visa holder would start accruing unlawful presence the day after the Department of Homeland Security (DHS) notified the visa holder that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit. Accruing unlawful presence under this criterion required notification by the USCIS to the visa holder of the violation.

This change is very important. There has always been a clear distinction between violating status and being unlawfully present, with only the latter situation having severe consequences for visa holders. A person could be in violation of status and not be unlawfully present. For instance, a foreign student on an F visa could drop out of school or perform unauthorized work and not accrue unlawful presence.

This situation is very specific to nonimmigrant students and exchange visitors because their Form I-94 and admission stamp usually list duration of status (or D/S) and not a specific date. Typically, F, J and M visa holders can maintain status as long as they remain enrolled or continue to participate in the activity for which they were admitted in the first place. The situation is different from other nonimmigrant visas, such as H-1B and L-1A visas, where unlawful presence generally starts accruing on the day after their visa stay permission on Form I-94 expires.

Under the new rule, even foreign students and exchange visitors who violate status unintentionally and without being aware of it, will start accruing unlawful presence—and may be in for an unpleasant surprise when they later apply for a new visa.

This announcement comes less than a month after USCIS updated its web page regarding the optional practical training (OPT) extension for international students with degrees in science, technology, engineering, and mathematics (STEM). USCIS now specifically provides that the training experience of STEM OPT workers may not be conducted at the place of business or worksite of the employer’s clients or customers. Combined with last week’s policy change, such an arrangement could cause the visa holder to accrue unlawful presence and later trigger a re-entry ban and visa denial.

We encourage employers who currently employ workers on F, J or M visas or who plan to do so, to carefully review the applicable rules, especially if you intend to subsequently apply for a new visa (e.g., H-1B, EB1, EB2) on their behalf.

For more information, please contact your Dentons lawyer and see the USCIS website for additional information.

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Stricter unlawful presence rules for foreign students and exchange visitors

Graduation: Time to request post-graduation work permission for foreign students

It’s April. Graduation is just around the corner. International students who are in F-1 status must consider their post-graduation plans. Now is the time to work with foreign student advisors and the USCIS for those seeking to work and gain practical training after graduation.

Optional Practical Training (OPT) is a period of temporary employment in the US that is directly related to an F-1 student’s major area of study. An F-1 student may be authorized 12 months of OPT after completing a degree from a US university. Eligible students must apply within 30 days of the foreign student advisor (known to USCIS as the “designated school official” or “DSO”) for OPT into the Student and Exchange Visitor Information System (SEVIS) record system.

The application time window is only open from 90 days before to 60 days after completing the degree. The latest possible start date for the OPT is 60 days after completing the degree. F-1 students must make sure to submit their applications, with application fee, within the time window. OPT will start after USCIS approves the Form I-765 and issues an employment authorization document (EAD).

An employer is not required when OPT is requested, but the student will need to find work soon or OPT will be lost and the student will need to leave the US if he or she is without work for more than 90 days after OPT is granted. F-1 students on OPT must report employment status to their DSOs, who will then update their SEVIS records. The reporting is important because a student with approved OPT but without current employer information in SEVIS is considered unemployed. This can have serious ramifications on the student’s future immigration opportunities. We are seeing an increasing number of requests from USCIS regarding OPT employment information when the student later applies for the H-1B work visa that is widely used by F-1 students to work in the US beyond OPT.

OPT can be extended by 24 months for F-1 students who graduate with a bachelor’s or higher degree in an eligible science, technology, engineering or mathematics (STEM) field from an SEVP-certified school accredited by an accrediting agency recognized by the US Department of Education. Eligible students must apply before the end of the OPT as indicated on the EAD.

During the STEM OPT period, the permitted unemployment period is 60 days. Unlike the initial OPT, where employer involvement is minimal, STEM OPT requires that the employer enroll in USCIS’ E-Verify employment eligibility verification program. Dentons lawyers guide employers on the E-Verify registration process and advise on compliance issues.

Also, the employer must agree to employ the student for a minimum of 20 hours per week and to provide the student with formal training and learning objectives. To fulfill this requirement, the student and the employer must complete and sign Form I-983, which must explain how the training opportunity has a direct relationship to the student’s qualifying STEM degree. Dentons lawyers assist employers in developing STEM OPT-compliant training programs.

During the STEM OPT extension period, students must report to their DSOs every six months and supply updated information regarding their employment. If an employer terminates a student’s employment or if the student leaves the job, the employer has to report in either situation to the relevant DSO within five business days. STEM OPT students must submit annual self-evaluations and report to their DSOs regarding the progress of their training. Both student and employer must report to the relevant DSO any material changes to the training plan. Reporting and record-keeping are important in case the student applies for H-1B later.

For more information about STEM OPT, please contact your Dentons lawyer and see the USDHS website for additional information.

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Graduation: Time to request post-graduation work permission for foreign students

New Form I-9 and E-Verify User Manual for US employers

The US Citizenship and Immigration Services (USCIS) issued a revised Form I-9 and E-Verify User Manual. Employers should use the new Form I-9 for all new hires and for re-verification of current employees when their temporary employment authorization expires.

Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States. All employers must ensure proper completion of Form I-9 for each individual they hire for employment in the United States, citizens and noncitizens included.

USCIS, which is an agency under the US Department of Homeland Security (DHS), operates the E‑Verify program, an Internet-based system that allows any US employer to electronically verify the employment eligibility of a newly hired employee.

E-Verify is a voluntary program. However, employers with federal contracts or subcontracts that contain the Federal Acquisition Regulation (FAR) E-Verify clause are required to enroll in E-Verify as a condition of federal contracting. E-Verify is also a requirement for employers of F-1 foreign students employed under STEM Optional Practical Training. Further, employers in states that have enacted legislation require some or all employers to utilize E-Verify as a condition of business licensing.

The new Form I-9 is available at the USCIS website. The new E-Verify User Manual is available for download here.

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New Form I-9 and E-Verify User Manual for US employers

Good news for US employers and foreign students—DHS STEM OPT extension rule published

On October 19, 2015, the US Department of Homeland Security published the much anticipated proposed new regulation authorizing the amendment of F-1 student visa regulations regarding employment authorization for foreign students. This will give much needed relief to US employers and the foreign students who work for them.

Since 2008, F-1 foreign student visa holders who graduate from US universities with a degree in science, technology, engineering or math (STEM) degrees are eligible to apply for 17 months of employment authorization in the US beyond the 12 months normally available. In addition, the 2008 regulatory change allowed F-1 students to apply for optional practical training (OPT) employment authorization up to 60 days after completion of the academic program. Finally, the 2008 change addressed the “Cap-Gap” program by making available additional employment authorization to F-1 OPT holders who are beneficiaries of H-1B temporary worker change of visa status petitions beginning on October 1 whose employment authorization would otherwise expire prior to September 30.

On August 12, 2015, the Washington, DC federal district court in Washington Alliance of Technology Workers v. USDHS found that the DHS violated the Administrative Procedures Act in 2008 when DHS first created the STEM OPT regulation without the notice and comment period required by law. The court stayed its ruling to February 12, 2016, to give DHS time to take corrective action to minimize “substantial hardship for foreign students and a major labor disruption for the technology sector.”

The court effectively gave DHS until December 14, 2015, to publish a final regulation to correct the error (with some exceptions, a proposed regulation must be published a minimum of 60 days prior to a final regulation). That means the DHS should have published the proposed regulation no later than October 15. Failure to do so increases the chance of disruption. That said, the case was appealed to the Court of Appeals for the District of Columbia Circuit and DHS attorneys will likely ask the appellate court to stay the lower court order and suspend the February deadline.

For the complete text of the DHS proposed rule.

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Good news for US employers and foreign students—DHS STEM OPT extension rule published