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Important new regulations for immigrant workers

The US Citizenship and Immigration Services (USCIS) published important new regulations for immigrant workers on November 18, 2016. The regulations become effective January 17, 2017.

Summary

The agency has amended its regulations to provide benefits to those in the employment-based first (EB1), second (EB2) and third (EB3) immigrant visa categories and their employers. The agency’s stated goal is to improve processes and increase certainty for employers seeking to employ and retain such workers, provide greater job flexibility for those workers, and clarify relevant Department of Homeland Security (DHS) policies.

New Rules

There are a number of new regulations, some of which adopt current agency policy and others that are new. The following are some of the most important ones.

For occupations in which a license is required (e.g., doctor, lawyer, etc.), the USCIS will grant the H1B visa for up to one year, if the only obstacle to license issuance is lack of a Social Security number.

For the purpose of counting the number of days spent in the US in H1B visa status towards the normal six-year limit, the USCIS will consider any twenty-four-hour period spent outside the US as one day, regardless of the reason for the absence.

A former H1B visa holder who is no longer in H1B visa status, and regardless of whether he or she is in the US or abroad, may seek an exemption from the normal six-year limit. The foreign worker must be otherwise eligible and the beneficiary of an approved EB1, EB2 or EB3 petition for whom the visa is not current under the quota system as of the date that the H1B petition is filed.

Lengthy adjudication delays of permanent resident status will not support an extension of H1B status beyond the normal six-year limit if the immigrant fails to file for permanent residence or an immigrant visa within one year of the visa becoming current under the quota system. If the visa becomes unavailable again, a new one-year period will be afforded when an immigrant visa again becomes available. The USCIS may also in its discretion excuse failure to timely file upon a showing that the failure was due to circumstances beyond the immigrant’s control.

Credible documentation that an H1B visa worker faced retaliatory action from the sponsoring employer regarding a violation of that employer’s H1B labor condition application obligations may be considered by the USCIS as grounds to grant an extension of H1B stay, or a change of status to another visa classification, notwithstanding the worker’s loss of, or failure to maintain, his or her H1B status.

The definition of “same occupational classification” for purposes of establishing the portability of immigrants to new jobs, has been modified to mean an occupation that resembles in every relevant respect the occupation for which the EB petition was originally granted. “Similar occupational classification” is now defined as an occupation that shares essential qualities or has a marked resemblance or likeness with the original occupation. This guidance is similar to what agency memoranda have already stated.

Employment eligibility verification regulations are amended to authorize employers to accept as proof of employment eligibility Form I-797C and also state that the original employment authorization document is automatically extended for up to 180 days. This is a new rule and will help employers.

Background

The US limits the number of employment-based immigrants annually, by both visa category and country of birth. The quota allocation set in 1990 has never been increased. The annual supply for most categories and countries of birth seems sufficient to prevent lengthy waiting periods; the greatest source of delay are USCIS and Department of Labor (DOL) agency processing times.

The most significant exceptions are for immigrants born in India and mainland China. So many employment-based immigrants born in those two countries are in the queue that waiting periods of for most immigrant visa categories now are many years.

Employer-sponsored EB visas tend to be for specific jobs, at specific work sites, with stated duties and compensation. In general, sponsoring employers and immigrant workers must intend after immigration is complete to work in the same job at the same work site with the same duties for the same (or similar) compensation.

Congress addressed this problem in the American Competitiveness in the 21st Century Act of 2000 (AC21). The USCIS (and its predecessor, the Immigration and Naturalization Service) issued implementing policy guidance, which has been clarified and revised over the years.

The lengthy processing delays were also a problem for H1B professional workers, since there is normally a limit of only six years of status. AC21 provided for extensions beyond the six-year limit.

The EB1 immigrant visa category includes individuals of extraordinary ability, outstanding professors and researchers, and multinational managers and executives. The EB2 category is for professionals with advanced degrees and individuals with exceptional ability. The EB3 category is for professionals and skilled workers, while the EB3W category is for other workers in short supply.

Read the full text of the new regulations here.

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Important new regulations for immigrant workers

US government immigration fee increase proposed

On May 4, 2016, the US Citizenship and Immigration Service (USCIS) published notice of a proposal to increase certain government filing fees and create a new fee. The average increase is 21 percent, but the highest increases are for the visas used by American businesses to bring skilled workers to the United States, immigrant investors creating jobs for Americans and immigrants acknowledged to have extraordinary ability.

A 42 percent increase is proposed for the Form I-129 used for the most common work visas, including H-1B professional, O-1 extraordinary ability, and L-1 intracompany transfer visas, as well as E-1 treaty trader, E-2 treaty investor and E-3/FTA H-1B1/TN treaty professional visas processed in the United States rather than at an American consular post or Preflight Inspection Unit abroad. A 42 percent increase is also proposed for the Form I-140 used for EB1, EB2 and EB3 employment-based immigrant visas.

If 42 percent seems outrageous, the increase proposed for the Form I-526 required for an EB5 immigrant investor creating at least 10 jobs for American workers is 145 percent.

Family-based immigration fares better, with only a 27 percent increase proposed for the Form I-130 used by United States citizens and lawful permanent residents to sponsor certain close relatives to immigrate. The Form I-485 required for immigrants who process through the USCIS instead of an American consular post abroad is proposed to increase only 16 percent.

The USCIS explains that the fee increases are required to recover costs for their services and to maintain adequate service. Current service is far from adequate. Although Congress mandated USCIS processing timelines in the American Competitiveness of the 21st Century Act of 2000 (AC21), almost 16 years later the agency continues to consistently fail to meet the standards set by law.

AC21 set 30-day processing times for most employer-sponsored nonimmigrant visas and 180-day processing times for most employer-sponsored immigration. Processing times tend to be at least twice as long or worse. Instead of 30 days, five months is the processing time currently reported for Form I-129 H-1B visa extensions, for example, and the USCIS California Service Center reported that as of February 29, 2016, the agency was currently processing Form I-485 immigrant applications received before May 17, 2014!

The agency has not increased fees in many years. Proposed fee increases usually become final fee increases without significant, if any, change—most likely later this summer.

There is a 60-day comment period. Guidance on how to submit comments is in the notice. The full text of the USCIS notice can be found online at the Federal Register.

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US government immigration fee increase proposed

H-1B blast off countdown 2016

T minus 72 days. The countdown has begun.  The date is coming.  It will be here soon.

It is the biggest event of the year in United States immigration.

Hundreds of thousands will apply, but only a lucky few will be chosen.  Employers keen to recruit and employ the best and brightest talent from around the globe to meet American business needs are already gearing up.  Professionals eager to pursue their career in the United States are updating resumes and collecting diplomas and reference letters.  This program is not the best way for a country to succeed, but the United States Congress continues to lack the will and wisdom to change a law almost 25 years old.

Are you ready?

April 1, 2016, is the first day that the United States Citizenship and Immigration Services agency (USCIS) will accept new H-1B specialty occupation worker nonimmigrant visa petitions by employers for foreign professionals.  It is important for global mobility and human resource managers to start work now to secure preliminary Department of Labor approvals, foreign degree evaluations, etc., to be ready to file the petition for an April 1 receipt date.

Limited supply

Only a limited number of new H-1B visas are accepted each year due to legal quota restrictions.  Every year, 65,000 new H-1B visa petitions can be granted, of which 6,800 are set aside for citizens of Chile and Singapore under Free Trade Agreements with those countries. To the extent there were unused Free Trade Agreement H-1Bs, those are added to the quota for the next fiscal year.  There is an additional allocation of 20,000 new H-1B visa petitions that can be accepted if the foreign professional earned a graduate degree from a university in the United States.

Not all H-1B visa petitions are subject to numerical limits. Individuals already holding H-1B visas are counted against the quota, and petitions filed by institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations are exempt from the limits. The exemption for petitions filed for jobs only in Guam or the Commonwealth of the Northern Mariana Islands expired on December 31, 2015.

Overwhelming demand

Last year, the USCIS received so many new H-1B visa petitions in the first week of April that the agency ended the application window on April 7.  Approximately 233,000 new petitions were received, as compared to 172,500 in the prior year.  As the regulations mandate, officers then selected—at random—which envelopes to open and returned the rest unopened with the government filing fees.  Only then did the agency begin the often long process to approve or deny the selected petitions on the merits of eligibility.

This year, the USCIS will once again receive more than they are allowed to accept.  Again, the agency will randomly decide the envelopes to open and those to return unopened.  The likelihood of a petition being selected in April 2016 is likely to be much, much lower than last year, taking into consideration the current state of the economy, the relatively low rate of American unemployment in typical H-1B specialty occupations, and the labor needs of United States employers.

The countdown begins now (download dates directly into your Outlook)

launch

T minus 72 days (January 19):  Start working with legal counsel now.  Identify current and prospective employees who will need new H-1B visa petitions.

T minus 45 days (February 15):  By now, you and legal counsel should have requested the labor condition application certification from the Department of Labor.  Employers new to the process or who have not filed recently will need to create the appropriate accounts with the Department of Labor. Because the USCIS relies on Dunn & Bradstreet data (DUNS) as part of its employer background verification process, it is important for employers to create or update the company’s DUNS records to avoid inconsistencies with H-1B visa petition filings.

T minus 30 days (March 1):  Have all the required USCIS forms and supporting documents been signed and filing fee checks prepared?  There is still some time left to get last minute details completed, but this is when it gets very hectic.  Government systems often become overloaded and delays at the Department of Labor for late filings are common.

T minus 1 day (March 31):  Envelopes should be properly addressed and delivered to the express service of choice with next business morning delivery instructions.

T minus 0 (April 1):  Just like at NASA ground control, this is the stage in the process where all the hard work resulted in successful delivery of the visa petition and you have to wait for the USCIS to announce whether the petition is selected or returned—usually within 3 weeks or so.

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H-1B blast off countdown 2016

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

FY 2016 H-1B update — USCIS ready to return all un-selected petitions

On May 4, 2015, the US Citizenship and Immigration Services agency (USCIS) announced that the agency completed data entry of all FY 2016 H-1B petitions and will now begin returning all petitions that were not selected.

The agency did not announce when the return of the petitions and the related filing fees would be completed. The agency did ask that no status inquiries be made until either an issuance of fee receipt for a selected petition or the return of an unselected petition occurs.

As a reminder, the agency received nearly 233,000 new H-1Bs subject to the 85,000 quota limit for fiscal year 2016. US law allows for the approval of up to 65,000 new H-1Bs subject to quota limits for each fiscal year, plus an additional 20,000 new H-1Bs that are only for individuals who earned an advanced degree from an American university.  When more than the authorized number are received during the first five business days of April, the agency then randomly selects the lucky winners, choosing first 20,000 from those with advanced degrees. All unselected advanced degree petitions are then part of the selection process for the 65,000 quota. The USCIS has not yet announced how many of the petitions received were for individuals with advanced degrees .

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FY 2016 H-1B update — USCIS ready to return all un-selected petitions

USCIS received 233,000 FY 2016 H-1Bs: 148,000 more than the maximum quota

The US Citizenship and Immigration Services agency (USCIS) announced that the agency received nearly 233,000 new H-1Bs subject to the 85,000 quota limit for fiscal year 2016. The agency also announced that no later than May 11, 2015, the agency will resume the optional 15-day, $1,225 premium processing of quota-subject H-1Bs.

US law allows for the approval of up to 65,000 new H-1Bs subject to quota limits for each fiscal year, plus an additional 20,000 new H-1Bs that are only for individuals who earned an advanced degree from an American university. When more than the authorized number are received during the first five business days of April, the agency then randomly selects the lucky winners, choosing first 20,000 from those with advanced degrees. All unselected advanced degree petitions are then part of the selection process for the 65,000 quota. The USCIS has not yet announced how many of the petitions received were for individuals with advanced degrees.

The agency did not announce when fee receipts would be issued for the H-1Bs selected or when the non-selected petitions would be returned. Based on prior years, this seems likely to happen during the  last week of April and through May.

The full text of the USCIS announcement can be found at the USCIS web site.

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USCIS received 233,000 FY 2016 H-1Bs: 148,000 more than the maximum quota

H-1B update for FY 2016 new petitions subject to quota

On April 7, 2015, the US Citizenship and Immigration Services (USCIS) announced that the agency received more H-1B petitions subject to annual quota limits for Fiscal Year 2016 than the law allows to be granted. The agency has not yet announced how many petitions were received or the date when it will conduct the selection process.

As was done in the last two fiscal years, the agency will randomly select from all of the petitions received between April 1 and 7. The random selection process is likely to be completed before the end of April.  All unselected petitions will be returned, along with checks for the government filing fees—most likely in May. Processing of selected petitions will begin during the same period, with the 15-day premium processing service likely to re-start in the last week of April.

The full text of the press release can be found at USCIS web site and the USCIS web site for the H-1B FY 2015 Cap Season, can be found here.

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H-1B update for FY 2016 new petitions subject to quota

Employment Authorization for H-4 Spouses

Effective May 26, 2015, the United States Citizenship and Immigration Services agency (USCIS) will begin to issue Employment Authorization Documents (EAD) to qualified H-4 visa status spouses of H-1B temporary worker visa holders.  This new permission to work in the US will not require a sponsoring US employer and will not be limited to any specific type of work.

To qualify, applicants will need to show that:

1.  They are maintaining H-4 visa status in the US;

2.  They are the spouse of someone maintaining H-1B visa status; and

3.  Their H-1B spouse either:

a.  is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or

b.  has been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act (AC21).

AC21’s Section 106(a) authorizes H-1B status beyond the normal 6 year limit to beneficiaries of an employment-based immigrant petition or an application for adjustment of status to permanent resident.  Section 106(b) provides those same benefits to individuals with an alien employment certification or employment-based immigrant petition pending before the Department of Labor or USCIS for more than 365 days.

To obtain employment authorization, the H-4 spouses will apply to the USCIS on Form I-765, Application for Employment Authorization, with supporting evidence and pay the government’s $380 fee.  The USCIS will begin accepting applications on May 26, 2015 and the press release instructs not to file before that date.  The H-4 spouse is authorized to work in the US only after receipt of the EAD.  USCIS processing times vary, but is typically about 90 days.

Although the USCIS estimates that this new rule will grant employment authorization to a large number of H-4 visa holders, many more H-4 spouses are not eligible due to the third requirement listed above. Although the press release touts how the change will support the US economy and bring US immigration policies more in line with the laws of other countries that compete to attract similar highly skilled workers, this rule is in fact more restrictive than many competing countries and not as generous as even the EAD rules for spouses on E-1, E-2 and L-2 visa status.

The full text of the USCIS press release can be found here.

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Employment Authorization for H-4 Spouses

H-1B Blast Off Countdown

T minus 84 days. The countdown has begun.  The date is coming.  It will be here soon.

It is the biggest event of the year in United States immigration.

Hundreds of thousands will apply, but only a lucky few will be chosen.  Employers keen to recruit and employ the best and brightest talent from around the globe to meet American business needs are already gearing up.  Professionals eager to pursue their career in the United States are updating resumes and collecting diplomas and reference letters.  This program is not the best way for a country to succeed, but the United States Congress continues to lack the will and wisdom to change a law almost 25 years old.

Are you ready?

April 1, 2015, is the first day that the United States Citizenship and Immigration Services agency (USCIS) will accept new H-1B specialty occupation worker nonimmigrant visa petitions by employers for foreign professionals.  It is important for global mobility and human resource managers to start work now to secure preliminary Department of Labor approvals, foreign degree evaluations, etc., to be ready to file the petition for an April 1 receipt date.

Limited Supply

Only a limited number of new H-1B visas are accepted each year due to legal quota restrictions.  Every year, 65,000 new H-1B visa petitions can be granted, of which 6,800 are set aside for citizens of Chile and Singapore under Free Trade Agreements with those countries. To the extent there were unused Free Trade Agreement H-1Bs, those are added to the quota for the next fiscal year.  There is an additional allocation of 20,000 new H-1B visa petitions that can be accepted if the foreign professional earned a graduate degree from a university in the United States.

Not all H-1B visa petitions are subject to numerical limits. Individuals already holding H-1B visas are counted again the quota, and petitions filed by institutions of higher education or related or affiliated nonprofit entities, nonprofit research organizations or governmental research organizations are exempt from the limits.  In addition, petitions filed for jobs only in Guam or the Commonwealth of the Northern Mariana Islands are exempt from the cap until December 31, 2015.

Overwhelming Demand

Last year, the USCIS received so many new H-1B visa petitions in the first week of April that the agency ended the application window on April 5.  Approximately 172,500 new petitions were received, as compared to 124,000 in the prior year.  As the regulations mandate, officers then selected — at random — which envelopes to open and returned the rest unopened with the government filing fees.  Only then did the agency begin the often long process to approve or deny the selected petitions on the merits of eligibility.

This year, the USCIS will once again receive more than they are allowed to accept.  Again, the agency will randomly decide the envelopes to open and those to return unopened.  The likelihood of a petition being selected in April 2015 is likely to be much, much lower than last year, taking into consideration the current state of the economy, the relatively low rate of American unemployment in typical H-1B specialty occupations, and the labor needs of United States employers.

The Countdown Begins Now (download dates directly into your Outlook) 

launch

T minus 84 days (January 7):  Start working with legal counsel now.  Identify current and prospective employees who will need new H-1B visa petitions.

T minus 60 days (February 1):  You and your legal counsel should be working together to prepare job descriptions, determine prevailing wage rates, secure equivalency evaluations of foreign degrees and work experience, and translate key documents.

T minus 45 days (February 15):  By now, you and legal counsel should have requested the labor condition application certification from the Department of Labor.  Employers new to the process or who have not filed recently will need to create the appropriate accounts with the Department of Labor. Because the USCIS relies on Dunn & Bradstreet data (DUNS) as part of its employer background verification process, it is important for employers to create or update the company’s DUNS records to avoid inconsistencies with H-1B visa petition filings.

T minus 30 days (March 1):  Have all the required USCIS forms and supporting documents been signed and filing fee checks prepared?  There is still some time left to get last minute details completed, but this is when it gets very hectic.  Government systems often become overloaded and delays at the Department of Labor for late filings are common.

T minus 1 day (March 31):  Envelopes should be properly addressed and delivered to the express service of choice with next business morning delivery instructions.

T minus 0 (April 1):  Just like at NASA ground control, this is the stage in the process where all the hard work resulted in successful delivery of the visa petition and you have to wait for the USCIS to announce whether the petition is selected or returned — usually within 3 weeks or so.

liftoff

 

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H-1B Blast Off Countdown

US executive action promises important new immigration benefits for some

US President Obama announced on November 20, 2014 a series of executive actions to crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay taxes in order to temporarily stay in the US without fear of deportation.  The United States Citizenship and Immigration Services agency (USCIS) announced that it is not yet accepting any applications for benefits under this program, stating that “[s]ome initiatives will be implemented over the next several months and some will take longer.”

Among the President’s initiatives is a plan to modernize, improve and clarify immigrant and nonimmigrant programs to grow our economy and create jobs.  This is intended to primarily benefit US businesses, foreign investors, researchers, inventors and skilled foreign workers.

The USCIS states that it will implement this initiative as follows:

  • Work with the Department of State to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas.
  • Work with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.
  • Provide clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays.
  • Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the US economy.
  • Authorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who:
    • Have been awarded substantial US investor financing; or
    • Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.
    • Finalize a rule to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status.
    • Work with Immigration and Customs Enforcement (ICE) to develop regulations for notice and comment to expand and extend the use of optional practical training (OPT) for foreign students, consistent with existing law.
    • Provide clear, consolidated guidance on the meaning of “specialized knowledge” to bring greater clarity and integrity to the L-1B program, improve consistency in adjudications, and enhance companies’ confidence in the program.

There is an additional, well publicized initiative to provide temporary legal status to certain individuals who have been in the US unlawfully for a continuous period of more than 5 years, if they are the parent of a US citizen or lawful permanent resident.  More details on all of the initiatives can be found at the USCIS web site.

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US executive action promises important new immigration benefits for some