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New H-1Bs for 2018 are gone

 

US employer demand once again greater than limited supply

United States Citizenship and Immigration Services (USCIS) once again received more H-1B visa petitions (for professional workers) from US employers than the limited supply allocated by Congress for fiscal year 2018.

The agency reported receiving 199,000 petitions during the first five business days of April—37,000 fewer than last year—the first time in years that the number of petitions has fallen.

The selection process was completed on April 11, but the agency did not announce by what date all accepted petition fee receipts would be issued, unselected cap-subject petitions returned with the uncashed filing fee checks, and approval notices for granted petitions sent.

As in years past, USCIS will reject and return filing fees for all unselected petitions that are not duplicate filings. Last year, most returns were received by June.

Congress authorizes USCIS to granted 65,000 H-1B visa petitions per fiscal year, plus an additional 20,000 petitions earmarked only for foreign nationals who earned a graduate degree from an American university. FY2018 starts October 1, 2017. For both of these quotas, the demand was greater than the supply, but USCIS has not provided a breakdown for each.

Certain H-1B visas remain available and USCIS will continue to accept and process petitions to:

  • Approve H-1B status to an individual coming to work for an employer that is exempt from quota limitations—generally the US government, American universities and certain related or nonprofit organization
  • Approve H-1B status to an individual counted previously against the cap and who is not subject to the FY2018 cap
  • Extend the amount of time a current H-1B worker may remain in the United States
  • Change the terms of employment for current H-1B workers
  • Allow current H-1B workers to change employers
  • Allow current H-1B workers to work concurrently in a second H-1B position

The full text of the agency’s press release can be found at the USCIS website.

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New H-1Bs for 2018 are gone

New Visa Bulletin updates green card processing timetable; impacts the dynamic between US employers and immigrant workers

freedom

Every month, the US State Department publishes the Visa Bulletin, an online publication that summarizes the availability of US green cards. The Visa Bulletin indicates when green cards subject to statutory quotas are available for issuance to prospective immigrants based on the type of green card being pursued, the alien’s country of birth and the alien’s “priority date” (the date that a permanent labor certification application or an immigrant petition was filed on the alien’s behalf).

On September 9, 2015, the State Department announced new procedures for determining green card availability.  These new procedures go into effect on October 1, 2015. The Visa Bulletin will now include two critical dates: a “filing date,” which determines when individuals may file their green card applications, and a “final action” date, which reflects when the USCIS or a consulate may make a decision on the applications. This change will allow aliens to file green card applications (including applications for Employment Authorization Documents or “EADs”) earlier than before, although it will not expedite the actual issuance of their green cards which is based on quotas established by law.  For more information about this development, please see the USCIS website.

For example, the October 2015 Visa Bulletin’s “Application Final Action Dates for Employment-based Preference Cases” shows that a decision to approve a green card may be made in October to an Indian-born advanced degree professional with an employment-based second preference priority/filing date of May 1, 2005.  That same Bulletin shows that the USCIS will accept applications to adjust status to permanent resident (I-485) for this same type of individual, but with a priority date of July 1, 2011.

This is a very significant change that is likely to benefit many.  This change will allow many employment-based immigrants and their accompanying family members to obtain EAD and advance parole (AP) international travel authorization card many years sooner.  Allowing spouses and children to work is an important benefit for many families.  This change will also give employers the option to rely on the EAD/AP card to employ the foreign professional without the cost and recordkeeping required to extend their nonimmigrant visa status, which represents a significant cost savings.

Last, and most certainly not least, this change will impact the ability of immigrant workers to change jobs faster and with greater ease.  In general, most employers and immigrant workers must intend to do the job originally designated when the employer originally applied to the Department of Labor for the alien employment certification. This limits the ability of employers and immigrants to make career changes, both with the same employer (e.g., promotions, demotions, change of job site) and for a change of employer (e.g., layoffs, mergers and acquisitions, new job opportunities).  Back in 2000, US law was changed to allow immigrant workers to continue to immigrate notwithstanding such a change, but only if certain requirements are met.  A key requirement is that the I-485 must be pending for at 180 days or more (additional details are available from the USCIS).

This change in how the US government uses the Visa Bulletin will make it much easier for immigrant workers to change jobs faster, giving them greater security.  It will likely have a detrimental impact on US employers seeking to retain these workers, while at the same time aiding US employers seeking to recruit these workers.  The result will somewhat change the dynamic between US employers and immigrant workers.

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New Visa Bulletin updates green card processing timetable; impacts the dynamic between US employers and immigrant workers

Information on recent amendments to Russian migration rules

Employment and Labor

Federal Law No 199-FZ on Amendments to Articles 18.10 and 18.15 of the Administrative Penal Code and the Federal Law on the Legal Status of Foreign Citizens in the Russian Federation of June 29.06.2015 (the “Amendment Law”) was published and entered into force on June 30, 2015.

The Amendment Law requires foreign employees who change their name or passports to apply to the migration authorities to enter the appropriate changes to their work permits (i.e. to indicate the new name or new passport details in the work permit):

  • within 7 days of such change (if the name was changed or the new passport was received in the Russian Federation); OR
  • within 7 days of entering Russia (if the name was changed or the new passport was received outside the Russian Federation).

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Information on recent amendments to Russian migration rules

Changes to UK immigration rules in April 2015: The highlights

UK flag

1. National Health Service surcharge

This will apply to most visa applications with effect from April 6, 2015 where the applicant is applying to stay in the UK for six months or more. The cost is £200 per applicant (£150 for Tier 4 students) per year of the visa and is payable at the time of making the initial application. For example, a five-year Tier 2 visa would have a National Health Surcharge of £1,000. If there are family members also coming in on the same visa it will be an additional £1,000 per family member. It is important to note that this surcharge will apply even if private medical care or insurance is in place.

The surcharge does not apply to anyone applying for a visitor visa. However, non-EEA visitors will continue to be fully liable for the costs of any NHS treatment at the point they receive it.

2. Increase in fees for immigration applications

A number of applications are subject to a fee increase from April 6, 2015. UKVI has published a list of Home Office Immigration & Nationality Charges 2015/16, which can be found here.

3. Changes to the clearance application process for overseas applicants applying for a visa for six months or more from outside the UK

Successful applicants will be issued a temporary 30-day visa running from their notified date of travel. On arrival in the UK they will have 10 days to collect, from a specified Post Office location, a Biometric Identity Document (BID) which contains their visa. It will be important for migrants to ensure they collect their BID within 10 days of arrival to avoid incurring a penalty charge of £125.

This change is being phased in over several months from March 2015.

4. Tier 2

a)  Updated minimum salary rates for Tier 2 applications from April 6, 2015:

Per-annum salary thresholds have been increased from between £300 and £1,800.

Criteria Current threshold New threshold
Jobs which qualify for Tier 2 (General). £20,500 £20,800
Jobs which are exempt from advertising in Jobcentre Plus (or JobCentre Online if the job is based in Northern Ireland). £71,600 £72,500
Jobs which are exempt from the annual limit, the 12-month cooling-off period and the   Resident Labour Market Test. £153,500 £155,300
Jobs which qualify for the Short-Term Staff, Skills Transfer or Graduate Trainee   categories (maximum stay either six months or one year). £24,500 £24,800

b)  With effect from April 6, 2015, removal of the 12-month cooling off period for Tier 2 visas issued for up to three months:

This is good news in that it will (i) enable interns to be sponsored and brought back to the UK for a permanent job within a one-year period; and (ii) benefit global businesses that need to send employees to the UK for short time periods.

5. Visitor visa routes reduced from 15 to four

UKVI has redesigned the visitor routes so that there are four: visitor (standard); visitor for marriage or civil partnerships; visitor for permitted paid engagements; and transit visitor.  The change applies to all applications made on or after April 24, 2015.

The visitor (standard) route consolidates the following existing routes: general, business, child, sport, entertainer, visitors for private medical treatment, visitors under the Approved Destination Status (ADS) Agreement with China, prospective entrepreneur, and visitors undertaking clinical attachments, the Professional and Linguistic Assessment Board (PLAB) test and the Objective Structured Clinical Examination (OSCE).

6. Removal of some test providers for language tests

There are now only two providers on the list. They replace the current providers from April 6, 2015.  The two new test providers are:

  • Trinity College London (for customers applying in the UK only).
  • IELTS SELT Consortia (for visa customers applying outside or inside the UK).

Tests taken on or before April 5, 2015 with old providers will remain valid until November 5, 2015. Tests taken with old providers from April 6 will not be acceptable with a visa application.

7. Amending the Shortage Occupation List

Changes are being made to the Shortage Occupation List, following a partial review by the independent Migration Advisory Committee. Jobs on the list are exempt from the Resident Labour Market Test and are given higher priority within the Tier 2 (General) annual limit. The new list is valid from April 6, 2015. The list amends the applicable graduate occupations in the health sector, makes changes to roles in the energy industry and reclassifies some existing entries.

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Changes to UK immigration rules in April 2015: The highlights

Critical employment issues facing multi-national employers

trade-customs1

Last week Dentons held its program on employment issues facing multi-national companies. For your convenience, the program can be viewed in it’s entirety by visiting the event page.

Dentons event

If you are interested in receiving additional information on Dentons’ Employment practice and/or have topic suggestions for future seminars, please contact Jennifer Gonzales-Frisbie, Business Development Manager, at jennifer.gonzales‑frisbie@dentons.com.

We hope to see you at our next program.

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Critical employment issues facing multi-national employers

One week away: Critical employment issues facing multi-national employers

Labour-2-(ThinkStock)

With one week left, click here to register for our CLE program on Critical Employment Issues Facing Multi-National Employers.

December 10, 2014
04:00 PM – 07:00 PM EDT
1221 Avenue of the Americas
50th Floor
New York, NY
United States

Dentons Global Employment and Labor group is pleased to invite you to an interactive program bringing together Dentons lawyers from around the globe to present on several critical employment issues facing multi-national employers. The three-panel program will be followed by networking cocktails where you will have an opportunity to mingle and connect with professionals in the industry.

Panel topics and speakers:

Moderated by Brian Cousin

Privacy Panel (4:30 p.m.–5:30 p.m.):
Andy Roth (US), Barbara Johnston (Canada), Michael Bronstein (UK), Katell Deniel-Allioux (France),Todd Liao (China by video), Neil Capobianco (US)

Global Mobility Panel (5:30 p.m.–6:00 p.m.):
Matt Schulz (US), Michael Bronstein (UK), Todd Liao (China by video)

Restrictive Covenants Panel (6:00 p.m.–7:00 p.m.):
Richard Scharlat (US), Adrian Miedema (Canada), Michael Bronstein (UK), Katell Deniel-Allioux (France), Todd Liao (China by video)

Register Now

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One week away: Critical employment issues facing multi-national employers

Upcoming changes to visas between US and PRC aim to facilitate travel and decrease need for renewals

BVisa

Effective November 12, 2014, the US and the PRC will both increase the validity of business, tourist, student and exchange visitor visas issued to each other’s citizens.

Chinese business visitors and tourists may be issued multiple-entry B-1 and B-2 visas for up to 10 years. Students and exchange visitors and their accompanying family members will be eligible for F, M and J visas for multiple entry for up to 5 years or the length of their program.

US citizens going to China for short-term business and tourism will also receive multiple-entry F and L visas for up to 10 years, while American students may receive X student visa residence permits for up to 5 years, depending on the length of their program.

This change will facilitate business travel and decrease the time and cost that has been spent on more frequent visa renewals without any change in government processing fees. This change does not impact the length of authorized stay.  Visas only authorize travel to another country and the immigration officer at the port of entry/airport inspection unit will determine the length of authorized stay.

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Upcoming changes to visas between US and PRC aim to facilitate travel and decrease need for renewals

US State Department visa and passport processing almost back to normal

keep calm visas

The US State Department announced on August 4 that most of the worldwide backlog of nonimmigrant visa cases have been resolved.  The Department continues to prioritize immigration cases and are printing visas with very few delays, although system performance issues remain an issue and the Consular Consolidated Database is not yet back to full operational capacity.  Visa applicants are advised they might still experience delays of up to one week in addition to normal processing times.

In late July, the Department announced technical problems with the passport and visa system.  By July 27, immigrant visas were given high priority.  The story was widely reported in major media, including many stories of the hardship caused to foreign workers at American companies who were unable to obtain visas to come to the US for work and other problems.   On July 31, the government was still anticipating it would take weeks to resume full visa processing.

The current reports are welcome news, but come with the warning that visa delays are still happening, just that the delays are shorter.  Employers and foreign employees seeking visas should take this into account when planning travel.  It may be faster to delay scheduling an appointment at a consular post until the problem is fully resolved OR it may be important to schedule an appointment as early as possible to allow sufficient time for processing.

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US State Department visa and passport processing almost back to normal

You May Not Be That Specialized – New guidelines for assessing Intra-company Transfer – Specialized Knowledge work permits

knowledge

On June 9, 2014, Citizenship and Immigration Canada (CIC) announced expanded guidelines for immigration and border service officers to follow when assessing work permit applications under the intra-company transfer – specialized knowledge category.  What’s Different?

  • Changes in interpreting what qualifies as “specialized knowledge”
  • Minimum wage requirement as set by Employment and Skills Development Canada (ESDC)

Specialized knowledge means that applicants must have both a high degree of proprietary knowledge and advanced expertise. This includes abilities that are unusual and uncommon in the industry and within the company, knowledge and skills that are difficult to transfer to another person but are required by the Canadian business, expertise that would be difficult to recruit for in the Canadian labour market and knowledge that only a small percentage of the company’s employees would hold.

To find the minimum mandatory wages please go to ESDC’s www.workingincanada.gc.ca site where low, median and high wages are listed for occupations using the Canadian National Occupation Classification (NOC). The mandatory minimum wages to be paid to intra-company transfers – specialized knowledge workers will be the median wages listed for each NOC occupation on this site. Please note that although the mandatory minimum wages do not apply to those applicants under NAFTA or other Free Trade Agreements with Canada, wages will be a factor that is considered by officers, as wages paid can be an important factor when assessing the expertise of a specialized knowledge worker.

Please note that the changes are effective immediately. CIC’s full Operational Bulletin can be found at: http://www.cic.gc.ca/english/resources/manuals/bulletins/2014/ob575.asp

As more pressure is placed on Canadian employers to look to the Canadian labour market before hiring foreign workers, we anticipate greater scrutiny and further changes to the temporary foreign worker program in the coming months.

 

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You May Not Be That Specialized – New guidelines for assessing Intra-company Transfer – Specialized Knowledge work permits