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Total Articles: 266

USCIS Reinstates Premium Processing for All H-1B Petitions

On October 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that it will begin accepting premium processing requests for all categories of H-1B petitions. In March 2017, USCIS had suspended the premium processing program for H-1B petitions, citing the need to reduce its overwhelming processing backlog. During the past several months, USCIS has phased in premium processing for certain limited categories of H-1B petitions. USCIS’s latest announcement allows employers to file premium processing requests for all H-1B categories, including H-1B visa extension of stay petitions, and also allows employers to upgrade pending petitions to premium processing.

USCIS Resumes Premium Processing for 2018 H-1B Cap Cases

On September 18, 2017, the U.S. Citizenship and Immigration Services (USCIS) announced that it would resume the premium processing service for fiscal year 2018 H-1B cap cases. The H-1B cap refers to the 85,000 H-1B1 visas that were selected during the first week of April for October 1st effective dates. Premium processing refers to a service in which an additional $1,225 is paid to the USCIS so that a decision on a petition is made in 15 calendar days.

Administration Considers Major Reductions in J-1 Cultural Exchange Program

The Trump administration is reportedly reviewing the J-1 Exchange Visitor Program, a popular cultural exchange program run by the U.S. Department of State, with the intention of making major reductions in the visa program. Following President Donald Trump’s “Buy American and Hire American” executive order, issued April 18, 2017, the administration has been reviewing U.S. immigration laws and policy with a view towards protecting American workers from foreign competition.

In-Person Interviews Mandated for Employment–Based Green Card Applicants and Others

On August 25, 2017, the U.S. Citizenship and Immigration Services (USCIS) confirmed that, as part of President Trump’s “extreme vetting” directives, potential legal immigrant workers will be required to undergo in-person interviews with USCIS. The interview requirement will apply to anyone moving from an employment-based visa to lawful permanent residency. The new mandate will also require visa holders who are family members of refugees or individuals who receive asylum to undergo an in-person interview when they apply for provisional status—a stage that precedes permanent residency. USCIS announced that the interviews will be “phased-in” starting on October 1, 2017. There is not yet any additional guidance as to how long the phase-in period will be. It will also take time to determine the extent of the impact that these new interviews will have on overall processing times.

Practice Alert: Trump Creates New Hurdles and Delays for Employment Based Green Card Applicants

Beginning on October 1, 2017, United States Citizenship and Immigration Services (USCIS) will start phasing in the requirement for an in-person interview for anyone obtaining employment-based permanent residency. For almost the past 20 years, interviews of employment-based applications were generally waived as there was little value that local adjudication added to the process.

U.S. Suspends Nonimmigrant Visa Issuance in Russia

On August 21, 2017, the U.S. Embassy in Russia announced that it would suspend the issuance of nonimmigrant visas for eight days starting on August 23, in response to the recent Russian decision to reduce U.S. diplomatic staff. Nonimmigrant visas allow foreign nationals to enter the United States for a temporary stay, not involving permanent residence, and include tourist and common work visas issued to employees coming to work in the United States. Examples of nonimmigrant work visas that will be affected are H-1B, L-1, or E visas for skilled workers, intracompany transferees, and investors. Nonimmigrant visa interviews will resume on September 1, 2017, at the embassy in Moscow only. Nonimmigrant visa interviews in St. Petersburg, Yekaterinburg, and Vladivostok are suspended until further notice.

Suspension of Visa Operations in Russia

The U.S. Embassy and Consulates in Russia announced that “[a]s a result of the Russian government’s personnel cap imposed on the U.S. Mission, all nonimmigrant visa (NIV) operations across Russia will be suspended beginning August 23, 2017.”

Changes to Foreign Affairs Manual and Developments in the Adjudications of Nonimmigrant Visas Signal Increased Scrutiny of Visa Petitions

Recent actions by the U.S. Department of State (DOS) and Citizenship and Immigration Service (USCIS) indicate that employers seeking to hire foreign workers will likely face a more stringent visa approval process.

The FICA Tax Exemption for Non-Resident Aliens in the U.S. Under F, J, M, or Q Visas

A common issue for employers of non-resident aliens authorized to work in the U.S. is whether (and when) such individuals are exempt from FICA taxation. Under the Internal Revenue Code, a nonresident alien (“NRA”) in the United States under a teacher, researcher, trainee, or student visa is exempt, within certain limitations, from FICA taxation.

USCIS Reopens H-1B Premium Processing for Institutions of Higher Education and Other Cap-Exempt Petitions

On March 3, 2017, U.S. Citizenship and Immigration Services (USCIS) unexpectedly announced that it would temporarily suspend its premium processing service for all H-1B petitions received on or after April 3, 2017. The premium processing program allows a petitioner to receive a decision on its case within 15 calendar days in exchange for payment of an additional government filing fee to USCIS. In the initial announcement, USCIS indicated that the suspension could remain in effect for up to six months.

DHS Allows One-Time Increase in H-2B Guest Worker Visas for Fiscal Year 2017

On July 19, 2017, the U.S. Department of Homeland Security (DHS) and Department of Labor (DOL) increased the numerical limit (or “cap”) on H-2B visas by up to 15,000 additional visas through the end of fiscal year (FY) 2017. The H-2B non-agricultural temporary worker program allows employers to bring foreign nationals (i.e., “guest workers”) to the United States to fill certain jobs of a temporary nature, such as those that are seasonal, peakload, intermittent, or one-time need. This announcement is a result of a federal government funding bill passed by Congress in early May, which included a provision for limited H-2B cap relief.

The L-1 Category: 3 Tips to Help Your Petition Withstand Scrutiny When Filing at USCIS

With the annual H-1B visa cap posing considerable staffing issues for U.S. employers requiring highly skilled workers, multinational corporations may increasingly turn to the L-1 visa to meet their need for knowledgeable, qualified professionals.

Nonimmigrant Visa Applicants May Have Longer Waits

President Donald Trump has issued an executive order striking the 80-percent/three-week goal for interviewing nonimmigrant visa applicants following submission of applications.

Overhaul of H-1B Visa Program Expected in Response to "Buy American and Hire American" Order

The White House has been working with the Department of Justice to formulate changes to the H-1B visa program pursuant to the administration’s “Buy American and Hire American” executive order. The H-1B visa program is a temporary work visa for professional positions. Apart from the required involvement of the Department of Homeland Security, some of the proposed changes to the program could be implemented by administrative actions, while others would require new legislation to be passed.

Green Card Applicants Subject to Heightened Scrutiny Via New Edition of Form I-485

In keeping with the Trump administration's call for "extreme vetting" of immigrants, US Citizenship and Immigration Services (USCIS) has published a new edition of Form I-485, Application to Register Permanent Residence or Adjust Status, that subjects applicants to heightened scrutiny.

USCIS Makes H-1B Premium Processing Available for Physicians Under the Conrad 30 Waiver Program

On March 3, 2017, U.S. Citizenship and Immigration Services (USCIS) unexpectedly announced that it would temporarily suspend its premium processing service for all H-1B petitions received on or after April 3, 2017. The premium processing program allows a petitioner to receive a decision on its case within 15 calendar days in exchange for payment of an additional government filing fee to USCIS. In the initial announcement, USCIS indicated that the suspension could remain in effect for up to six months.

Labor Secretary Announces Aggressive Stance on Visa Fraud and Abuse

Secretary of Labor Alexander Acosta has announced that the Department of Labor (DOL) will more aggressively enforce laws governing the administration and enforcement of non-immigrant visa programs. The DOL will continue to work with the Departments of Justice and Homeland Security to prioritize and publicize investigations into violations of visa programs, such as the H-1B, H-2A, H-2B and PERM (Labor Certification-Green Card processing) programs. The agency plans to increase its exercise of authority to refer cases of alleged criminal fraud to its Office of Inspector General (OIG).

USCIS Adopts Matter of I-Corp and What it Means for L-1B Visas

The U.S. Citizenship and Immigration Services (USCIS) recently issued a policy memorandum directing USCIS personnel to adopt the Administrative Appeals Office’s (AAO) reasoning in Matter of I-Corp. Specifically, pursuant to Matter of I-Corp.,1 USCIS is directed to deny visa petitions that are based on an illegal or otherwise invalid or unenforceable employment agreement.

Optional Practical Training: As this workforce grows, so does HR professionals' need to have hiring plan for the visa program

Optional Practical Training (OPT) workers are becoming an indispensable part of the American workforce. Small and mid-sized companies are the largest beneficiaries, as just 4 percent of all OPTs work at the 10 largest tech companies in the Fortune 500. So what are OPT workers? What are the challenges and benefits of this visa category?

USCIS Responds to Senate Request for Action on H-1B Program

On May 24, 2017, U.S. Citizenship and Immigration Services (USCIS) issued a response to a recent bipartisan inquiry led by the U.S. Senate Committee on the Judiciary’s chairman, Chuck Grassley, concerning the possible misuse and abuse of the H-1B visa program. In his March 29, 2017 letter to USCIS, Senator Grassley insisted that USCIS address the increasing layoffs of American workers and their replacements with “cheaper foreign labor” through the H-1B visa program—as highlighted in a recent episode of a television news show.

USCIS Completes Data Entry for Petitions Selected in H-1B Lottery; Will Start Returning Unselected Petitions

On May 3, 2017, United States Citizenship and Immigration Services (USCIS) announced that the data entry process for all H-1B cap petitions selected in the FY 2018 H-1B cap lottery had been completed. USCIS will begin returning petitions that were not selected in the lottery; however, a specific timeframe for the return of unselected petitions has not been identified. USCIS is requesting that petitioning employers refrain from inquiring into the status of cap-subject petitions until employers have received a receipt notice or the returned cap-subject petition.

President Signs Executive Order Seeking H-1B Visa Program Review

President Donald J. Trump has signed an Executive Order on Buy American and Hire American, establishing as the policy of the executive branch to promote American business and talent. The Order does not have any immediate impact on existing federal policies or regulations.

Buy American and Hire American and the H-1B Lottery

On April 18, President Trump signed the “Buy American and Hire American” Executive Order. Federal agencies are already subject to laws and regulations which require them to give preference to American goods and raw materials in contracting and procurement. The purpose of the Order is to “maximize…the use of goods, products, and materials produced in the United States” and to “rigorously enforce and administer the laws governing entry into the United States of workers from abroad.”

Trump Targets Tech Teams (And Others) Through H-1B Crackdown

President Trump signed an executive order yesterday directing a full review of the H-1B visa program as part of a continued push to clamp down companies that hire foreign labor instead of American workers. The centerpiece of this directive – dubbed “Buy American, Hire American” – is a proposal to replace the H-1B lottery with a system that distributes visas on the basis of wages, skills, and education.

FY2018 H-1B Lottery Applications Decline for First Time in 5 Years

United States Citizenship and Immigration Services (USCIS) announced earlier this week that it received 199,000 H-1B petitions for the FY 2018 H-1B cap. As usual, this far exceeds the total allocation of 65,000 general-category H-1B visas and the 20,000 advanced degree exemption H-1B visas for the FY2018 cap. However, this number represents a 15.7 percent decrease from the 236,000 petitions that USCIS received during last year’s filing period. It also represents the first time the number didn’t rise since 2013, demonstrating that employers are beginning to re-think their use of foreign skilled labor, most likely because of the administration’s pointed comments about immigration matters.

Executive Order Leaves Current H-1B System in Place, But Calls for Reforms

On April 18, 2017, President Donald Trump signed an executive order (EO), “Buy American and Hire American,” which aims to “stimulate economic growth” and “ensure the integrity of the immigration system.” Although this action provides impetus to federal agencies to propose changes to the U.S. immigration system, the EO itself does not present an immediate impact to immigration programs.

H-1B Visa Executive Order

In the wake of the lowest number of H-1B visa petitions filed in five years (199,000), President Donald Trump has signed an Executive Order dubbed “Buy American, Hire American.” It is focused on reform of the H-1B non-immigration visa program, as well as the elimination of waivers and exceptions that are central to international trade deals.

New Executive Order Addresses H-IB Visas

On April 18, 2017, President Trump signed the "Buy American and Hire American" executive order (EO), which addresses H-IB visas. The EO calls for the application of existing U.S. laws to visa recipients and the revaluation of the H-IB program.

USCIS Announces FY 2018 H-1B Cap Lottery Completed and Total Filed Numbers

United States Citizenship and Immigration Services (USCIS) announced on April 17, 2017, that it had completed its annual H-1B lottery and had selected a sufficient number of H-1B petitions to meet the 65,000 petition bachelor’s degree cap and the 20,000 petition U.S. master’s degree cap. In total, USCIS received 199,000 petitions this year during the filing period that ran from April 3, 2017, until April 7, 2017. On April 11, 2017, the agency completed its random computerized lottery to select the cap petitions. The 20,000 U.S. master’s cap petitions were randomly selected first. All unselected U.S. master’s petitions plus the bachelor’s petitions were then pooled and subjected to the general lottery where 65,000 petitions were selected.

Port-of-Entry Inspections and NAFTA Professional (TN) Visas: Differential Diagnosis for Advance Practice Nurses

Since President Trump first issued his executive order suspending travel to the United States by certain foreign nationals, a flood of generalized reports regarding changes to U.S. port-of-entry inspection operations emerged. Although key portions of the travel ban have since been blocked by a preliminary injunction, some inspection operation changes have continued to play out at U.S. ports of entry. Most recently, these reports have documented specific accounts of nurses with nonimmigrant NAFTA professional (TN) visa status being denied admission at ports of entry across the U.S.-Canada border.

Push to Protect American Jobs: Round-up on Proposed Reforms to H-1B, L-1 Visas

Reforming the H-1B program “is an issue we are closely and carefully looking at,” Donald Trump had said during the campaign. This sentiment is shared by Congress, as evidenced by the slew of legislation proposed across both sides of the aisle.

The H-1B Cap Has Been Met!

Although it is not a surprise, the USCIS announced on April 7th that it reached the H-1B cap for fiscal year 2018 – both the regular cap and “Master’s” cap. As usual, the USCIS will reject and return filing fees for all unselected cap-subject petitions – unless any of those petitions are duplicate filings.

H1-B Cap Has Been Reached for Fiscal Year 2018

On April 7, 2017, the US Customs and Immigration Services (USCIS) announced that the cap for H1-B visa processing has been reached for Fiscal Year 2018 (October 1, 2017, through September 30, 2018). Congress had mandated a 65,000-visa H-1B cap for fiscal year 2018.

USCIS Issues Guidance Revisiting H-1B Eligibility for Computer Programmers

In a policy memorandum published on March 31, 2017, United States Citizenship and Immigration Services (USCIS) issued guidance that narrowed the eligibility for H-1B petitions filed in the computer programmer job category. The memo is in line with the agency’s recent announcements that signal its support for President Trump’s plans to revamp the H-1B visa program in an effort to protect U.S. workers.

USCIS Reaches FY 2018 H-1B Cap

United States Citizenship and Immigration Services (USCIS) announced today that the annual H-1B quota for both the regular 65,000 visa petition bachelor’s degree cap and the 20,000 visa petition U.S. master’s degree cap has been met for Fiscal Year (FY) 2018.

USCIS and U.S. DOJ Signal Efforts to Tighten Control Over the H-1B Visa Program

United States Citizenship and Immigration Services (USCIS) and the Immigrant and Employee Rights Section of the U.S. Department of Justice’s Civil Rights Division (DOJ-IER) issued statements signaling their cooperation with President Trump’s plans to restrict the H-1B visa program for highly-skilled workers.

Business Immigration Zone (BIZ): USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse

U.S. Citizenship and Immigration Services (USCIS) announced multiple measures to deter and detect H-1B visa fraud and abuse. U.S. companies use the H-1B visa program to recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country. Effective April 3, 2017, USCIS will take a targeted approach by making site visits to H-1B petitioners and the worksites of H-1B employees across the country.

Federal Government Targets H-1B Visa Fraud by Employers with Focus on Outsourcing

In line with its focus on compliance and enforcement of existing laws, the Trump Administration has announced measures to “deter and detect H-1B visa fraud and abuse” and to protect American workers just as thousands of H-1B visa petitions are inundating USCIS Service Centers on April 3 (the beginning of the H-1B season for FY 2018).

USCIS Issues New Guidance on H-1B Work Visas for Computer Programmers

On March 31, 2017, the U.S. Citizenship and Immigration Services (USCIS) issued a policy memorandum that provides new guidance regarding H-1B visas for computer-related positions. This document supersedes and rescinds a December 2000 memorandum that the agency has deemed “obsolete” and an inaccurate articulation of current policy on H-1B visa criteria.

Extreme Vetting for Visa Applicants – Just not for the Countries in the Travel Ban

Subsequent to President Trump’s March 6, 2017 Executive Order Suspending travel to the US of certain nationals and Presidential Memorandum directing the Secretary of State, the Attorney General, and the Secretary of Homeland Security to implement “immediate heightened screening and vetting of applications for visas and other immigration benefits,” Secretary of State Rex Tillerson has issued cables (CABLE 23338, CABLE 24324, CABLE 24800, CABLE 25814) to his consular chiefs regarding the implementation of “extreme vetting” procedures.

H-1B Cap Filing Season: How to Avoid Getting Stuck in a Gap in Employment Eligibility

This time of year, many recent college graduates who are authorized to work in the United States for a limited time as part of post-degree optional practical training are facing a deadline—and employers better take note, or they will end up with workers who have a gap in employment eligibility.

Controversial H-1B Lottery Upheld

A few weeks before H-1Bs will be filed subject to a random lottery, an Oregon judge dismissed a lawsuit challenging the H-1B lottery system, granting summary judgment to United States Citizenship and Immigration Services (USCIS).

How Will Cap-Exempt Institutions Respond to USCIS’s Suspension of H-1B Premium Processing?

On March 3, 2017, U.S. Citizenship and Immigration Services (USCIS) unexpectedly announced that it will temporarily suspend its premium processing service for all H-1B petitions received on or after April 3, 2017. The premium processing program allows a petitioner to receive a decision on its case within 15 calendar days in exchange for payment of an additional government filing fee to USCIS.

Future of H-4 Work Permits Uncertain

In 2015, the Obama Administration DHS issued the H-4 EAD Rule allowing certain spouses of H-1B holders to obtain EADs and work while waiting to become permanent residents. Soon thereafter, a group of high-tech workers, Save Jobs USA, filed suit in the U.S. District Court for the District of Columbia arguing that the DHS lacked authority to issue the rule. The case was dismissed on summary judgment.

Gear Up for H-1B, L-1 Reforms

Aiming to reform and reduce fraud and abuse in the H-1B and L-1 visa programs, bipartisan bills have been introduced in both Houses of the Congress. Outsourcers are the top users of H-1B visas. These companies are known to flood the H-1B visa lottery and make it more difficult for other companies to obtain the H-1B visas they need to recruit and maintain top talent. Outsourcers have brought foreign nationals to the U.S. on these visas to be trained by the U.S. workers they are destined to replace. In light of this, other perceived abuses, and President Donald Trump’s promises to protect U.S. workers, reform bills are proliferating in Congress.

USCIS Temporarily Suspends Premium Processing of H-1B Petitions

USCIS has announced that it will temporarily suspend Premium Processing for all H-1B petitions, beginning April 3, 2017. The suspension will apply to all H-1B petitions, including new H-1B cases filed under the FY18 H-1B cap, as well as extensions, amendments, and other cap-exempt petitions. According to USCIS, the temporary suspension is being implemented to help the agency reduce overall H-1B processing times, and it could last up to six months.

Suspension of Premium Processing for H-1B Cases Starting on April 3, 2017

The U.S. Citizenship and Immigration Services (USCIS) has announced that starting on April 3, 2017 (and to continue for up to six months), it is suspending Premium Processing for all H-1B visa petitions, including petitions for change of status to H-1B or extensions. USCIS stated that the purpose of the suspension is to address overall backlogs in H-1B processing times and prioritize pending H-1B extension cases that have been pending for close to 240 days.

USCIS Temporarily Suspends H-1B Visa Petition Premium Processing

Employers that were hoping to hire highly specialized foreign workers for positions in fields such as science, teaching, engineering and computer programming for fiscal year (FY) 2018 will be disappointed to learn that US Citizenship and Immigration Services (USCIS) has suspended the premium processing of all H-1B visa petitions starting April 3, 2017, the first day on which the agency would have begun accepting such petitions this year. USCIS says the suspension is temporary, but it may last as long as six months.

U.S. Announces Suspension of Premium Processing for All H-1B Petitions

On Friday, March 3, 2017, the United States Citizenship and Immigration Services (USCIS) announced that effective April 3, 2017, it will temporarily suspend premium processing for H-1B petitions. This suspension may last for up to six months. The temporary suspension will apply to all H-1B applications filed on or after April 3, 2017. Therefore, because the current cap-subject H-1B petitions will not be filed before April 3, 2017, the suspension applies to all regular-cap and master's-advanced-degree-cap petitions.

Mapping the Impact From USCIS’s Surprise Suspension of H-1B Premium Processing

On March 3, 2017, U.S. Citizenship and Immigration Services (USCIS) unexpectedly announced that it will temporarily suspend its premium processing service for all H-1B petitions received on or after April 3, 2017. The premium processing program allows a petitioner to receive a decision on its case within 15 calendar days upon payment of an additional government filing fee to USCIS.

USCIS Calls Time Out on H-1B Premium Processing

On Friday, March 3, 2017, United States Citizenship and Immigration Services (USCIS) unexpectedly announced the suspension of the premium processing program for all H-1B cases received by the government on or after April 3, 2017. The premium processing program allows a petitioner to pay an additional government filing fee to USCIS in return for a guarantee that the agency will issue a decision on the case within 15 calendar days.

H-1B Visa Petition Filings Are Due April 3 for FY 2018

Employers that want to hire foreign workers for fiscal year (FY) 2018 for positions that require highly specialized knowledge in fields such as science, teaching, engineering and computer programming should get ready now to file H-1B visa petitions with US Citizenship and Immigration Services (USCIS) on April 3, 2017. H-1B visas become available annually on October 1, but petitions for them cannot be submitted to USCIS earlier than six months in advance.

H-1B Season Has Started!

Petitions for new H-1B visas are eligible to be filed on April 1, 2017, for federal FY 2018 beginning October 1, 2017. There are a limited number of new H-1B visas each year (65,000 and an additional 20,000 for foreign nationals with a U.S. Master’s degree or higher), which historically is used up within days of the start of the filing period. Last year, 236,000 applications were filed for the 85,000 slots. Now is the time to review your hiring needs.

What Does the President's Executive Order Blocking Foreign Nationals From Seven Countries Mean for Employment-Based Visas?

On January 27, 2017, President Trump signed an executive order (among others) titled: “Protecting the Nation from Foreign Terrorist Entry into the United States” (the “Order”). The Order purports to “suspend entry” of both “immigrant and nonimmigrant” individuals from the seven countries currently subject to visa waiver restrictions: Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.1

H-1B Visa Lottery Looms Under Shadow Of Trump Executive Orders

Over the past several days, President Trump has passed numerous executive orders addressing immigration. Thus far, none of these orders have targeted employment-based immigration, but it is possible that this topic could be addressed at any point in the days or weeks ahead. In particular, the H-1B visa category drew attention from Trump during the campaign.

Forward Movement in January 2017 Visa Bulletin Could Be Offset by Increased Demand

Perhaps in response to the recent presidential election, the demand for immigrant visas has noticeably surged across most employment-based immigrant visa preference categories. While the final action dates for most preference categories have moved forward, meaning additional numbers of foreign nationals may proceed with applications for immigrant visa processing or adjustment of status, Charles Oppenheim, the Chief of the Visa Control and Reporting Division at the U.S. Department of State (DOS), forecasts that additional final action cutoff dates are likely be imposed for several of the preference categories that are “current” as of today.

The Race to File H-1B Work Visas on April 1, 2017

Executive Summary: We are releasing this Alert to remind employers of the fast-approaching April 1, 2017, opening date for filing H-1B work visa petitions on behalf of foreign employees who need sponsorship for work authorization in the U.S. Since April 1, 2017, falls on a Saturday this year, the U.S. Citizenship and Immigration Services (USCIS) will start accepting H-1B petitions on Monday, April 3, 2017.

Critical Filing Dates for FY 2018 H-1B Cap

Employers that wish to sponsor H-1B workers for Fiscal Year 2018 can begin filing petitions on April 1, 2017, for a start date of October 1, 2017. The H-1B visa is used by businesses that wish to employ foreign nationals to work in a specialty occupation requiring theoretical or technical expertise. For FY 2018, cases will be considered accepted on the date the U.S. Citizenship and Immigration Services (USCIS) takes possession of the petition, not on the date the petition was postmarked.

Practical Implications of the High-Skilled Workers Regulation

In a previous article, we summarized the key provisions of the U.S. Department of Homeland Security (DHS) regulation, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” which went into effect on January 17, 2017. In this article, we analyze the key provisions and the practical implications for employers and employees in further detail.

Matter of Dhanasar: A New Standard for National Interest Waivers in the United States

On December 27, 2016, the AAO issued a decision that modifies the standards for granting a National Interest Waiver (NIW) in Matter of Dhanasar. This decision will impact thousands of applicants seeking U.S. permanent residency based solely upon the importance of their work in the United States or their unique accomplishments/qualifications. The decision fundamentally alters the NIW standard by providing more flexibility to individuals such as entrepreneurs who have traditionally been self-employed, and whose employment was not well-suited for this benefit under the prior NIW test.

Congress Considers Halting Job Flexibility Rule, Bill to Change Employer H-1B Exemption Eligibility

Representative Darrell Issa (R-Calif.) has introduced two pieces of legislation to watch.

Reminder: USCIS Filing Fees Will Increase on December 23, 2016

Beginning on December 23, 2016, filing fees for many United States Citizen and Immigration Services (USCIS) visa petitions and applications will increase. This is the first time since 2010 that USCIS has increased its filing fees. On average, fees will increase by 21 percent. The premium processing fee of $1,225 will not increase.

New Regulations Clarify Which Employers Are Exempt From Yearly H-1B Quota

On November 18, 2016, the Department of Homeland Security (“DHS”) issued its long-awaited rule seeking to improve certain aspects of the employment-based immigration system. The new rule, which becomes effective on January 17, 2017, clarifies several agency policies and procedures that affect U.S. employers who sponsor high-skilled nonimmigrant workers. The rule is intended to increase consistency among agency adjudicators and provide greater stability and job flexibility for certain foreign workers.

Drinking + Driving = Losing Your Visa?

With Thanksgiving and the holidays right around the corner, Fisher Phillips would like to remind our clients to be extra careful when driving home after a night out. In addition to the criminal and financial ramifications of drunk driving, there are other consequences for foreign nationals on nonimmigrant visas who are arrested or convicted of driving under the influence (DUI). Since the implementation of a new policy in November of 2015, consular officers have been required to prudentially revoke nonimmigrant visas upon notification of a DUI arrest or conviction, even if that individual is in the United States.

USCIS Rolls Out the Blanket L Revised Form I-129S Effective Date

Over the summer, United States Citizenship and Immigration Services (USCIS) published an updated edition of Form I-129S, Nonimmigrant Petition Based on Blanket L Petition. The new edition is dated “6/2/16.” Blanket L visa applicants with consular appointments have been required to use the new version since August 29, 2016. However, USCIS had been slower to provide an effective date for use of the new form with USCIS change or extension of status filings until just recently.

Business Immigration Zone (BIZ): Relief Available for H-2A Farmers Impacted by Natural Disasters

The onset and aftermath of Hurricane Matthew was particularly hard on farmers and agricultural associations. Storm winds and rising waters devastated farm lands, limiting farmers’ ability to harvest crops in the impacted areas. In light of Hurricane Matthew, agricultural businesses that use the H-2A program may experience hardship complying with program requirements, may have reduced labor needs because of the storm or may have an altogether new need for guest labor.

The H-1B Lottery: How Does a Petition Get That Winning Number Anyway?

The H-1B “cap season” has become an annual event for U.S. employers seeking work authorization for highly skilled foreign professionals. Working months in advance, employers and their attorneys prepare and submit H-1B petitions starting on the first business day in April. These petitions are added to a pool of applications and may be selected for an H-1B visa. U.S. Citizenship and Immigration Services (USCIS) controls the allocation of H-1B visas and accepts petitions until it has received an amount sufficient to reach the statutory limit of 65,000 visas available for new hires—and 20,000 additional visas for foreign professionals who graduated with a master’s or doctoral degree from a U.S. university.

Plan to Grant Work Authorization to Millions Remains on Hold After Supreme Court Denies Request for Rehearing

On the first day of its new term, the United States Supreme Court sidestepped another opportunity to determine the constitutionality of President Obama’s executive immigration reforms. On October 3, 2016, the Court denied the government's request for a rehearing in United States v. Texas, upholding an injunction against the administration's ambitious program to provide work authorization to millions of individuals living in the United States without lawful immigration status.

H-1B Lottery Class Action Lawsuit Says System Should be Scrapped

Employers needing foreign talent to fill professional positions obtain work authorization for these individuals most frequently by applying for an H-1B visa. Individuals from across the globe may be sponsored for this type of visa if the position requires a minimum of U.S. Bachelor’s Degree or equivalent.

Labor Department Announces Procedural Changes to H-2B Visa Program

In an effort to further streamline the H-2B application process and make it less burdensome for employers, the Department of Labor has announced procedural changes to reduce the amount of documentation to demonstrate “temporary need.”

Are Foreign Nationals on H-1B Work Visas Eligible for FMLA Leave?

Over the past few months, I’ve been asked by clients whether foreign nationals who are in the United States on work visas are eligible for FMLA leave.

DOL Judge Says Flagging Economy Insufficient Basis to Relieve H-1B Employers of Wage Obligations

Employers employing foreign nationals in H-1B nonimmigrant visa status must pay their H-1B employees the wage specified on the Labor Condition Application (LCA) certified by DOL, regardless of whether the H-1B employer is enduring difficult economic or financial periods due to struggling national economy, an Administrative Law Judge for the Department of Labor has ruled in Department of Labor Wage and Hour Division v. Shriiji Krupa Inc.

When Rolling the Dice Didn’t Lead to Success: Visa Options After the H-1B Cap Lottery

Employers seek predictability when hiring employees. You don’t need to be a mathematician (although that might help qualify you as an outstanding researcher) to know that the odds of being selected in U.S. Citizenship and Immigration Services’ H-1B cap lottery have decreased over the past four years. Each year the number of applicants for the H-1B cap lottery has increased, while the number of available H-1B visas has remained constant. This year 236,000 petitions were filed for only 85,000 available H-1B cap lottery slots. Employers may wish to examine the following options to increase the probability of retaining valued foreign national employees who were not chosen in the H-1B lottery.

Beware of Limits on Workers in U.S. on Tourist Visa

Noting media reports that up to 200 foreign workers hired by a Tesla contractor were able to come to the United States in tourist visa status to perform work at a construction project at a Tesla Motors Inc. paint facility in the United States, Senator Charles Grassley (R-IA) sent a letter, dated June 7, 2016, to the heads of the State Department, Justice Department, Department of Labor, and Department of Homeland Security questioning how such individuals would be eligible to perform work in the U.S. in B visa status.

“Benching” Is Not Just for Athletes: A Timely Review of H-1B Wage Requirements

United States Citizenship and Immigration Services (USCIS) has started to notify employers of whether their H-1B petitions were selected in USCIS’s fiscal year 2017 random selection process, or “lottery,” that took place in April of 2016. Approximately 85,000 H-1B workers selected in the quota will begin work in the United States on October 1, 2016, or shortly thereafter.

Federal Court Judge Quashes Challenge to Revised Visa Bulletin Dates

A U.S. District Court in Seattle has ruled that the U.S. Department of State’s Visa Bulletin which governs how immigrant visas subject to numerical limitations are allocated, and indicates when intending immigrants may apply for the last stage of the permanent visa process is not a final agency action or decision and, therefore, cannot be challenged in court. While it is estimated that 20,000 or more individuals relied upon the published dates to initiate filings prior to the roll-back, Chief Judge Ricardo S. Martinez determined that the court lacked jurisdiction because the bulletin does not constitute a final action under the Administrative Procedure Act (APA), but instead merely sets out “informative” data.

USCIS Announces Date for Start of H-1B Cap Premium Processing

United States Citizenship and Immigration Services (USCIS) has announced that on May 12, 2016, it will it will begin the 15 calendar day processing timeline for cap-subject H-1B petitions requesting premium processing. USCIS provides an expedited “premium processing” service for certain employment-based petitions. For non-cap-subject petitions, including H-1B and other nonimmigrant visa classifications, the 15-day processing period typically begins on the date USCIS receives the request. However, for cap-subject H-1B petitions filed in April, USCIS has historically taken additional time to complete intake and computerized random selection of the petitions for further processing prior to starting the 15-day adjudication period.

Record Number of H-1B Professional Work Visa Requests

On April 12, 2016, U.S. Citizenship and Immigration Services (USCIS) released the H-1B “cap” count, indicating that it received approximately 236,000 petitions for H-1B work visas for fiscal year 2017. This means that U.S. employers filed approximately 236,000 petitions during the short five-day window of opportunity that opened on April 1, 2016, and closed on April 7, 2016.

USCIS Reaches FY 2017 H-1B Cap

As of April 7, 2016, the United States Citizenship and Immigration Services (USCIS) has reached the H-1B quota or “cap” limitation for fiscal year (FY) 2017. USCIS has not yet confirmed the total number of petitions received for the 65,000 “general” quota or the 20,000 “advanced degree” quota but will likely confirm the total number in the following weeks. Due to the high number of petitions received, USCIS has not yet confirmed the date it will complete its computerized random selection or “lottery” of H-1B petitions for further processing.

BIZ: Time's Almost Up to File for 2016 H-1B Visas

The April 1, 2016, deadline for H-1B visa petitions is rapidly approaching. If last year is any indication, now is the time to process H-1B petitions because the H-1B cap likely will be reached by April 8, 2016. Therefore, employers should focus their attention in the next week toward evaluating their labor needs so they are prepared to compete for this limited supply of visas.

Libya, Somalia, and Yemen Added to the Visa Waiver Program Travel Restrictions List

Last month, the U.S. Department of Homeland Security (DHS) began implementation of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. In addition to making several important changes to the Visa Waiver Program (VWP), the act prohibits anyone who has traveled to Iraq, Syria, Iran, or Sudan within the past five years from participating in the program. The act also prohibits citizens of VWP-eligible countries who are also “nationals” of Iraq, Syria, Iran, or Sudan from further participation in the program.

Important Reminders for Employers Regarding this Year's H-1B Cap

As we head into the final month before petitions for H-1B visas must be filed for Fiscal Year 2017,1 employers should keep the following information in mind:

The H-1B Lottery: Hoping For The Best, Pla..

As it does each year, the office of U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions from U.S. employers during the first five business days in April. If the USCIS receives more than the allotment of new 85,000 H-1Bs for the 2017 fiscal year (which begins October 1, 2016), it will use a random lottery to select petitions. If your business will participate in the H-1B process this year, the time to prepare is now.

USCIS Reminds Employers to Identify "Returning Workers" Exempt From Fiscal Year 2016 H-2B Visa Cap

On February 5, 2016, the U.S. Citizenship and Immigration Services (“USCIS”) issued an alert reminding employers to identify “returning workers” when filing H-2B petitions for non-immigrant workers.

Four Countries Highlighted under Tighter Visa Waiver Program

The United States has begun implementing changes to its visa policies that will make it harder for some travelers to enter the country under the Visa Waiver Program (VWP). One result of the changes means certain countries’ nationals are no longer eligible to enter the U.S. under the VWP.

Form M-1 Filings Due March 1, 2016 for MEWAs

Executive Summary: Multiple Employer Welfare Arrangements (MEWAs) must file a Form M-1 annually and shortly after inception. The annual Form M-1 filing deadline for the 2015 calendar year is March 1, 2016.

DHS Enhances Opportunities for H-1B1, E-3, CW-1 Nonimmigrants and Certain EB-1 Immigrants

On January 15, 2016, the Department of Homeland Security (DHS) posted a final rule in the Federal Register which revises its regulations affecting highly skilled workers in the nonimmigrant classifications for specialty occupations from Chile/Singapore (H-1B1), Australia (E-3), nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification, and the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers;

Immigration Alert for Employers—Important Issues for 2016

On April 1, 2016, the U.S. Citizenship and Immigration Services ("USCIS") will begin accepting new H-1B visa petitions for employment that will begin on October 1, 2016. The H 1B visa is a popular choice for companies that plan to hire a foreign national to fill a "professional" or "specialty occupation" position requiring a minimum of a bachelor's degree in a specific field. Candidates for H-1B status include current employees in student status (F-1 or J-1), potential new hires, or employees in a different immigration status (for example, E, L or TN status).

FY17 H-1B Cap Filings Begin April 1, 2016

U.S. employers who sponsor foreign workers for temporary H-1B work visas should be aware that April 1, 2016, is the earliest date that new H-1B petitions may be filed to count against the upcoming FY17 quota (or “cap”). Employers should be identifying those first-time H-1B workers for which petitions will be filed this April. International students holding F-1 visas are the most common beneficiaries of first-time H-1B petitions. Demand for H-1Bs is expected to be higher than last year.

BIZ: To Be or Not to H-2B: The Pros and Cons of the Temporary Guestworker Program

Employers use the H-2B program to bring foreign nationals to the United States to fill temporary non-agricultural jobs. To qualify to hire temporary foreign labor, employers must meet specific regulatory requirements.

H-1B Visa Petition Filing Is April 1: Swift Employer Action Needed Now

On April 1, the United States Citizenship and Immigration Services (USCIS) will begin accepting H-1B visa petitions for the 2017 fiscal year. Employers with employees who need H-1B status to continue working in the US, or that wish to hire new employees who need that status, should prepare now to file a petition, the first step being to identify employees and prospective new hires who will need H-1B petitions.

5 Key Developments in the H–2B Temporary Non-Agricultural Workers Program

On December 18, 2015, the Consolidated Appropriations Act, 2016 (the Act) was signed into law. In addition to approving funding for a broad range of federal programs and agencies, the law also enacted a number of changes to the H–2B Temporary Non-Agricultural Workers Program that are likely to be welcomed by employers.

Update on STEM OPT Extension Rule

A February 12, 2016, court-imposed deadline to determine the fate of certain student work permits is fast approaching. At this point, it is unclear whether the U.S. Department of Homeland Security (DHS) will be able to meet its regulatory target date to extend work permits granted to certain students with F-1 visas. The failure to act or extend the work permits may adversely affect the continued employment of these workers.

Critical Filing Dates for FY 2017 H-1B Cap

Employers who wish to sponsor H-1B workers for Fiscal Year 2017 can begin filing petitions on April 1, 2016 for a start date of October 1, 2016. The H-1B visa is used by businesses who wish to employ foreign nationals to work in a specialty occupation requiring theoretical or technical expertise. For FY 2017, cases will be considered accepted on the date that U.S. Citizenship and Immigration Services (USCIS) takes possession of the petition, not on the date it was postmarked.

DHS Issues New Regulations for Certain Highly Skilled Workers

On Friday, January 15, 2016, the U.S. Department of Homeland Security published a final rule—Enhancing Opportunities for H–1B1, CW–1, and E–3 Nonimmigrants and EB–1 Immigrants—in the Federal Register. The new regulations, which will go into effect on February 16, 2016, apply existing rules to additional, similar visa categories, and are intended to benefit highly skilled workers and CW–1 nonimmigrant workers.

Ramping up for the H1B Cap Season

Each year, USCIS issues 65,000 H-1B visas and 20,000 “master’s cap” visas. April 1, 2016 is he first date on which an H-1B petition may be filed for FY 2017, in anticipation of an October 1, 2016 start date. Last year, USCIS accepted 233,000 petitions in the first week. A lottery was conducted and over 60% of all petitions were rejected.

Reminder - The Race Is On to File H-1B Work Visas on April 1, 2016

Executive Summary: We are releasing this Alert to remind employers of the fast approaching April 1, 2016, deadline for filing H-1B work visa petitions on behalf of foreign employees who need sponsorship for long-term work authorization in the U.S.

USCIS to Accept Cap-Subject H-1B Petitions for FY2017 Beginning April 1, 2016

Friday, April 1, 2016 marks the opening of the filing period for new H-1B petitions to be counted against the annual H-1B quota for Fiscal Year (FY) 2017. H-1B petitions subject to the annual quota, commonly known as the “H-1B cap,” can be submitted on this date for an employment start date of October 1, 2016 or later. To prepare for the FY 2017 H-1B filing period, employers should identify current and future employees who will need H-1B visa status to be legally employed in the United States. Employers should take this action as early as possible to help ensure they are prepared to file all needed petitions on the opening day of the filing period. Foreign nationals who commonly require a cap-subject H-1B petition to be filed on their behalf include individuals currently holding F-1 student visas, individuals seeking to change to H-1B status from another visa status (such as L-1, TN, O-1, or E-3), and individuals outside of the United States.

Changes to the Visa Waiver Program Become Law

On December 18, 2015, President Obama signed the “Consolidated Appropriations Act, 2016” (H.R. 2029) into law. The law includes several important changes to the Visa Waiver Program (VWP) that are fundamentally identical to the VWP changes that the U.S. House of Representatives passed last month. The VWP allows eligible citizens of specified countries to enter the United States for tourism or business and remain for 90 days or less without B-1 or B-2 visitor visas. (The House bill is covered in detail in our December 2015 article, “House Passes Bill Enhancing Security of Visa Waiver Program in Wake of Paris Terror Attacks.”)

Proposed Rule Would Expand Cap Exempt Status for Non-Profit Entities that are 'Related or Affiliated' with Institutions of Higher Education

On December 30, 2015, the Department of Homeland Security (DHS) issued a proposed rule to amend certain regulations related to employment-based immigrant and nonimmigrant visa programs. One of the key proposed changes is an expansion of the current definition of nonprofit organizations that qualify for “cap exempt status” as a result of a “related or affiliated” agreement with an institution of higher education. Littler will provide a more comprehensive summary of the entire proposed rule later this week.

Congress is Considering Changes to the Visa Waiver Program

A bill winding its way through Congress could impact business travel and the U.S. tourism industry. On December 8, 2015, the House of Representatives passed by a vote of 407-19 the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (H.R.158). This bill would amend the Immigration and Nationality Act to include terrorism risk as a factor the Department of Homeland Security (DHS) must consider under the agency’s Electronic System for Travel Authorization (ESTA) used to determine an alien's eligibility to travel to the United States under the Visa Waiver Program (VWP).

House Bill Changes to the Visa Waiver Program: Inclusion in the Omnibus Appropriations Bill and Passage Expected

The U.S. House of Representatives on Tuesday, December 8, voted overwhelmingly to limit visa-free travel to the United States through the Visa Waiver Program (“VWP”). This legislation is expected to be added to the year-end Omnibus spending bill that is currently being debated and finalized on Capitol Hill. If implemented, the bill would impact the nationals of certain countries who regularly engage in visa-free travel and force them to obtain visas before traveling to the U.S. Many business travelers regularly use the VWP program, and could be impacted by these changes.

House Passes Bill Enhancing Security of Visa Waiver Program in Wake of Paris Terror Attacks

In the wake of the Paris terrorist attacks, the U.S. House of Representatives passed a bill on Tuesday, December 8, 2015, to tighten security measures and impose new restrictions on the Visa Waiver Program (VWP). The VWP permits citizens of 38 designated countries, mostly in Europe, to travel to the United States for business or tourism for 90 days or less without a visa. The bill, which passed in the House by a vote of 407 to 19, would prohibit anyone who has traveled to Iraq, Syria, Iran, or Sudan within the past five years from participating in the program; require the U.S. Department of Homeland Security to terminate a country’s participation in the program if the country fails to share counterterrorism information; require all VWP countries to use electronic passports with chips that contain biometric information; and mandate that participating countries more thoroughly screen travelers against international counterterrorism databases. The bill is expected to be included in a spending bill later this week and could become law by the end of the year.

Business Immigration Zone (BIZ): H-1B Season Starts with the Holidays

As the holidays approach, employers should start preparing for the upcoming H-1B cap season. H-1B visas for next year’s cap season must be filed by April 1, 2016. This year, the H-1B cap was reached by April 7, 2015. Employers should start evaluating their labor needs now so they are prepared to compete for this limited supply of visas.

The Race to File H-1B Work Visas on April 1, 2016

Executive Summary: We are releasing this Alert to remind employers of the fast approaching April 1, 2016 deadline for filing H-1B work visa petitions on behalf of foreign employees who need sponsorship for long-term work authorization in the U.S.

Business Immigration Zone (BIZ): H-1B Season Starts with the Holidays

As the holidays approach, employers should start preparing for the upcoming H-1B cap season. H-1B visas for next year’s cap season must be filed by April 1, 2016. This year, the H-1B cap was reached by April 7, 2015. Employers should start evaluating their labor needs now so they are prepared to compete for this limited supply of visas.

Business Immigration Zone (BIZ): Louisiana Congressmen Challenge H-2B Program

Louisiana sugar cane farmers, agricultural associations, hospitality industry stakeholders and landscaping interests felt the pinch of the H-2B guest worker program throughout 2015. The program is heavily regulated, time consuming and costly. Louisiana is among the largest users per capita of the H-2B program, which allows U.S. employers to employ foreign workers on temporary visas to meet labor needs in industries such as agriculture, landscaping, hospitality and seafood processing. But because of cap limitations and administrative delays, H-2B visas were consumed earlier this year – just when Louisiana employers needed laborers most urgently.

Proposed New Optional Practical Training (OPT) Rules

The U.S. Department of Homeland Security has proposed amending its regulations on the optional practical training (“OPT”) program to allow international F-1 students with U.S. degrees in the sciences, technology, engineering, or mathematics (“STEM”) — attained from accredited institutions — to extend by 24 months the standard 12-month OPT period available to them to remain in the U.S. to pursue degree-related work experience.

Contingency Planning for the Upcoming H-1B Season

The H-1B non-immigrant visa allows foreign workers in certain occupations to legally live and work in the United States for a U.S. employer. In recent years, a growing number of foreign workers have applied for H-1B visas, resulting in a “cap” on the number of visas that are awarded each year.

EB Filing Dates Pushed Back in Revised October 2015 Visa Bulletin

On September 25, 2015, the U.S. Department of State (DOS) issued a revised Visa Bulletin for October 2015 that supersedes the original Bulletin dated September 9, 2015. In the current Bulletin, the dates for certain categories on the “Dates for Filing of Employment-Based Visa Applications” chart retrogressed from the dates on the original Bulletin. Specifically, dates for the Employment-Based Second Preference category for China retrogressed by one year and five months from May 1, 2014 to January 1, 2013, and India retrogressed by two full years from July 1, 2011 to July 1, 2009. The Philippines moved for both Employment-Based Third and Other Workers Preference categories from January 1, 2015 to January 1, 2010, a retrogression of five years. There were no revisions to the actual priority dates for October.

Olympic Gymnast's EB-1 Petition Denial Affirmed by District Court

The Immigration and Nationality Act permits employers to petition for their employees who are “Persons of Extraordinary Ability” to immigrate to the United States. For approval of a Person of Extraordinary Ability petition, the employer must demonstrate their employee’s extraordinary ability in the sciences, arts, education, business, or athletics through sustained national or international acclaim in the field of employment.

Department of State and Department of Homeland Security Announce a Major Change to the Visa Bulletin

On September 9, 2015, the Department of State and Department of Homeland Security, acting through United States Citizenship and Immigration Services, announced that they were significantly revising Visa Bulletin procedures. The Visa Bulletin is the monthly bulletin issued by the Department of State that determines whether a particular foreign national is eligible to file their “green card” in a particular month. This change is effective October 1, 2015, and will provide foreign nationals and businesses with more stability as they forecast their immigration budgets. It will also result in increased portability of foreign nationals waiting for their green cards.

USCIS and DOS Announce Revised Procedures for Determining Visa Availability for Applicants Waiting to File for Adjustment of Status

On September 9, 2015, US Citizenship and Immigration Services (“USCIS”) and the Department of State (“DOS”), announced new procedures for determining visa availability for applicants waiting to file adjustment of status applications. These revisions are intended to implement executive actions by President Obama.

Important Changes to the U.S. Department of State’s Visa Bulletin

On September 9, 2015, the U.S. Department of State (DOS) and United States Citizenship and Immigration Services announced important changes impacting certain individuals in the permanent residence (“green card”) process. This change will allow some individuals to file the last step of the green card process, the application for adjustment of status, even if their priority date is not current.

USCIS and DOS Announce Revised Procedures for Determining Visa Availability for Applicants Waiting to File for Adjustment of Status

On September 9, 2015, US Citizenship and Immigration Services (“USCIS”) and the Department of State (“DOS”), announced new procedures for determining visa availability for applicants waiting to file adjustment of status applications. These revisions are intended to implement executive actions by President Obama.

DHS Improperly Delegated H-2B-Related Regulatory Authority to DOL, Circuit Court Rules

The U.S. Court of Appeals, in Denver, has issued an opinion putting the entire H-2B labor certification and visa process in jeopardy.

The New L-1B Adjudications Policy, Effective August 31

The recently issued U.S. Citizenship and Immigration Services (USCIS) final policy memorandum on L-1B visas clarifies the requirements for a sponsoring multinational organization transferring international personnel to the United States to demonstrate that an employee possesses “specialized knowledge.” This policy memorandum follows from the “Immigration Accountability Executive Actions” reforms that President Obama ordered in November 2014. The policy memorandum takes effect on August 31, 2015, and provides important evidentiary guidance to employers seeking to utilize this visa category. It also consolidates and supersedes prior authoritative guidance issued by the Legacy Immigration and Naturalization Service (INS) and the USCIS on the definition of “specialized knowledge”. The Homeland Security Act of 2002 (Public Law 107-296) abolished the INS, established the Department of Homeland Security (DHS), and authorized the USCIS to take on many of the adjudicative functions of the INS.

Changes to Obligations for Filing H-1B Amendment Petitions Under Matter of Simeio Solutions, LLC

As of August 19, 2015, full enforcement of a recent Administrative Appeals Office (AAO) decision in Matter of Simeio Solutions, LLC, 26 I&N Dec. 542 (AAO 2015) will commence.

UUSCIS Final Guidance on L-1B Adjudications Offers Some Comfort—But No Cure—for Employer Concerns

On August 17, 2015, U.S. Citizenship and Immigration Services (USCIS) released a policy memorandum aiming to clarify the standard required for L-1B specialized knowledge visas.

Ever Evolving L-1B Adjudication Standards

Immigration law practitioners have been receiving Requests for Evidence (RFEs) on most L-1B (Intracompany Transferee-Specialized Knowledge) petitions for new issuance as well as L-1B renewals. These RFEs, requiring burdensome responses, in fact may misinterpret the term “specialized knowledge.”

Business Immigration Zone (BIZ): Back to School Edition

Summer is almost over and the 2015-16 school year is right around the corner. That’s why it is appropriate we focus on visas that are available to university professors, researchers and students in this edition of Business Immigration Zone.

USCIS Accepting Premium Processing Requests for H-1B Extension of Stay Petitions

USCIS has resumed acceptance of Form I-907, Request for Premium Processing Service, for all H-1B extension of stay petitions. Premium Processing Service had been suspended by USCIS for this type of filing as of May 26, 2015, in anticipation of a large number of applications for employment authorization by H-4 nonimmigrants under new regulation allowing for employment authorization for H-4 dependent spouses of certain H-1B employees. USCIS later announced that current workloads permitted earlier-than-anticipated resumption of the premium processing service.

USCIS Final Guidance on When to File a New or Amended H-1B After a Change in Job Location

On July 21, 2015, USCIS issued final guidance on when to file a new or amended H-1B petition after the Matter of Simeio Solutions, LLC decision.1 (Click here to review our discussion of the Simeio decision). This USCIS final guidance -- which is intended to assist employers with complying with the Simeio decision -- provides the following directives:

USCIS Issues Final Guidance on When to File an Amended or New H-1B Petition After Matter of Simeio Solutions, LLC – But Cautions the Public: ‘Don't Rely on It'

Executive Summary: On July 21, 2015, USCIS issued Final Guidance for agency adjudicators regarding applying the precedent decision, Matter of Simeio Solutions, LLC. As we previously reported, Matter of Simeio radically reinterpreted the agency's H-1B regulations retroactively to require filing an amended petition whenever an H-1B temporary worker is moved to a worksite not identified in an approved or pending petition that requires a new, certified labor condition application (LCA). On May 21, 2015, USCIS issued, for notice and comment, Proposed Guidance regarding implementing Matter of Simeio – Guidance we believed to be flawed, as discussed in more extended commentary. The Final Guidance continues to raise serious concerns for employers in the business and IT consulting industry who are most threatened by the Simeio rule.

USCIS Issues Final Guidance on When to File an Amended or New H-1B Petition

Following the decision of the Administrative Appeals Office (AAO) of USCIS, USCIS has issued a new Policy Memorandum to its employees outlining when an amended H-1B petition must be filed.

USCIS Resumes Premium Processing for H-1B Extension Petitions

U.S. Citizenship and Immigration Services (USCIS) announced that it will resume accepting Requests for Premium Processing for all H-1B extension petitions effective July 13, 2015. Premium processing for H-1B extensions had been suspended on May 26, 2015 so that USCIS could dedicate staff to the implementation of a new rule allowing certain H-4 spouses to apply for employment authorization application. USCIS clarified that it will now accept an I-907 premium processing request on any H-1B extension petition, including pending petitions filed during the premium processing moratorium. If an I-907 was filed and/or received by USCIS prior to July 13, 2015, it will be rejected.

USCIS Completes Return of H-1B Petitions Not Selected in the Lottery

U.S. Citizenship and Immigration Services (USCIS) announced on July 14, 2015, that it completed processing the return of fiscal year 2016 H-1B cap-subject petitions that were not selected in its “computer-generated random selection process” commonly referred to as “the lottery.” If a cap-subject case was not selected, it should have been returned to the petitioner or attorney of record by now. If you have not received a receipt or a returned package by July 20, 2015, you are encouraged to contact USCIS.

Preview of Potential Changes to EB-5 Immigration Program: Source of Financing for Construction and Hospitality Projects

With the impending expiration of the Immigrant Investor Visa Program, also known as EB-5, in September, bipartisan legislation has been proposed in Congress to renew and improve the Program. The proposed changes could significantly impact the attractiveness of the program to investors, particularly in certain parts of the country. The following overview describes the proposed changes to this important immigration program which has provided billions of dollars in financing for hospitality, real estate, and other sectors in the United States over the past decade.

Business Immigration Zone (BIZ): It's Easier Being Green

There is good news for employers who hope to obtain employment-based visas for certain job categories.

Recent H-2B Program Changes Require Careful Planning by Employers

The H-2B program provides visas for temporary, non-agricultural positions to foreign nationals in the United States. Traditionally, employers have used the H-2B program to fill positions whose temporariness can be demonstrated either because the employer has an “intermittent,” “seasonal,” “one-time occurrence,” or “peakload” need. Many industries with temporary needs, including construction, gardening, coaching, and tourism are heavily dependent upon H-2B workers.

Recent H-2B Program Changes Require Careful Planning by Employers

The H-2B program provides visas for temporary, non-agricultural positions to foreign nationals in the United States. Traditionally, employers have used the H-2B program to fill positions whose temporariness can be demonstrated either because the employer has an “intermittent,” “seasonal,” “one-time occurrence,” or “peakload” need. Many industries with temporary needs, including construction, gardening, coaching, and tourism are heavily dependent upon H-2B workers.

Business Immigration Zone (BIZ): Supreme Court's Gay Marriage Ruling Gives Same-Sex Couples Access to Spousal Visas

The Supreme Court’s ruling in favor of same-sex marriage will make it easier for same-sex couples to obtain immigration benefits through marriage. The ruling may also encourage more LGBT executives and entrepreneurs to come to the United States, now that their ability to obtain marital immigration benefits is less expensive. In an historic 5-4 decision, the Supreme Court recently ruled that the 14th Amendment requires states to issue licenses to same-sex couples that want to marry. Indeed, Justice Anthony Kennedy opined that same-sex couples now exercise “the fundamental right to marry.”

U.S. Department of State Announces Two-Thirds of its Consular Posts are Online and Processing Visas

Executive Summary: On June 23, 2015, the U.S. Department of State (DOS) updated its alert regarding the technical problems that resulted in world-wide delays in visa processing, announcing that 39 consular posts, representing more than two-thirds of the agency's normal capacity, are now online and issuing visas. DOS also stated that it expects the system to be fully reconnected this week and will work over the weekend to clear the backlog of visas. DOS is currently rescheduling more than 1,500 visa applicants who were unable to be interviewed last week because of the systems problems.

Department of State Visa Issuance Update: 39 Consular Posts Are Online and Operational

The U.S. Department of State (DOS) continues to experience worldwide technical problems with issuing visas, the result of an apparent hardware failure. On June 23, 2015, the DOS announced that the visa issuance problems had been resolved at 39 consular posts, listed below. However, delays will continue with the scheduling of appointments and visa issuance as the backlogs are addressed.

Department of State Visa Issuance Problems Resolved in 22 Posts but Delays Continue

The U.S. Department of State (DOS) continues to experience worldwide technical problems with issuing visas, the result of an apparent hardware failure. On June 22, 2015, the DOS announced that the visa issuance problems have been resolved in 22 consular posts. However, delays continue with both scheduling appointments and visa issuance. More information is available on the Bureau of Consular Affairs website.

Update to Department of State Visa Shutdown

The U.S. Department of State (DOS) has provided an update on its ongoing technical problems with issuing visas. According to the update, the visa shutdown appears to be the result of a hardware failure. The DOS has over 100 computer experts (both public and private sector) working to identify the issues and restore functionality. The DOS is hopeful that the system will be back online by next week.

Resource Update: USCIS Issues Flawed Guidance on Filing Amended H-1B Petitions Post Matter of Simeio

Executive Summary: USCIS recently published Guidance purporting to rely on Matter of Simeio Solutions, addressing when employers must file an amended H-1B petition on behalf of H-1B workers who are transferred to a new work location not listed in the original approved petition. Although the Guidance contains numerous legal flaws, it states that the agency will not take adverse action against employers or employees for failure to file an amended petition, if the employer files a required petition prior to August 19, 2015. However, to be entitled to this reprieve, the employer must also establish that it relied in good faith on non-binding agency correspondence in not filing to amend before relocating the H-1B worker.

Dealing with Rejection: Options for Applicants Not Selected in the FY2016 H-1B Lottery

The U.S. Citizenship and Immigration Services (USCIS)’s announcement last month that it received nearly 233,000 H-1B petitions for fiscal year 2016 beginning October 1, 2015—a record total, and a 35% increase over last year—to fill its quota of 85,000 means that nearly two-thirds of all cap-subject H-1B petitions were rejected. Applicants without an advanced degree had a roughly 30% chance of being selected in the lottery. The USCIS is returning unselected petitions along with their filing fees to petitioners. This tragic situation has put many employers and their foreign national employees in a bind, with current visa statuses and work authorizations expirations looming. With the prospects of immigration reform slim in the current Congress, employers should assess alternative short-term options to retain key employees and to, at least, preserve their ability to reenter those employees in next year’s H-1B lottery. While these options can be slim, particularly for advanced degree holders who have exhausted post-degree training options, employers and foreign national employees are not completely out of luck, as we have alluded to in recent alerts. Employers and employees should consider traditional alternatives to the H-1B visa, new opportunities for work authorization as a result of executive action, and other creative short-term solutions within the boundaries of the immigration laws.

FY 2016 H-1B Cap Petition Not Selected: What Are the Options?

Most “new” H-1B petitions must be counted against an annual H-1B cap. This limit, or “cap,” administered by the U.S. Citizenship and Immigration Services (USCIS), is currently set at 65,000 plus an additional 20,000 reserved for those who hold an advanced degree from a U.S. college or university. Those petitions selected under the cap will have an October 1st start date in H-1B nonimmigrant status.

USCIS Guidance Clarifies Employer Obligations to Amend H-1B Visa Petitions, Sets Compliance Deadline

On May 21, 2015, the U.S. Citizenship and Immigration Services (USCIS) issued guidance on an employer's obligation to amend an H-1B visa petition to report a change in the employee's worksite location. This guidance is in response to the Administrative Appeals Office's recent decision in Matter of Simeio Solutions, LLC, in which it determined that an employer must file an amended H-1B petition when a new Labor Condition Application for a Nonimmigrant Worker (LCA) is required due to a change in the H-1B employee's location of employment.

New USCIS Guidance Has Significant Consequences for H-1B Employers

On April 9, 2015, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Services (USCIS) issued a precedential decision (Matter of Simeio Solutions, 26 I&N Dec. 542) that significantly impacts U.S. employers employing H-1B workers with frequent worksite changes. The AAO provided clarification on when an “amended” H-1B petition must be filed in a decision that will significantly impact the compliance burden for many H-1B employers.

USCIS to Halt Premium Processing Service for H-1B Extensions

On May 19, 2015, the U.S. Citizenship and Immigration Services (USCIS) announced it will temporarily halt acceptance of premium processing requests for all H-1B Extension of Stay petitions from May 26, 2015 through July 27, 2015.

USCIS Publishes Long-Awaited Filing Guidance for H-4 EAD Applications

On May 20, 2015, U.S. Citizenship and Immigration Services (USCIS) published long-awaited information to help eligible H-4 dependent spouses apply for employment authorization documents (commonly known as “EAD cards”) under the Employment Authorization for Certain H-4 Dependent Spouses final rule. Under this rule, which goes into effect on May 26, 2015, an H-4 dependent spouse is eligible to apply for an EAD card if the principal H-1B status holder is the beneficiary of an approved I-140 petition or has already been granted H-1B status under the American Competitiveness in the 21st Century Act of 2000 (AC21) Sections 106(a) and (b). AC21 permits extensions of H-1B status beyond the usual six-year maximum period when the H-1B holder is the beneficiary of an approved I-140 employment-based immigrant petition or 365 days or more have passed since the filing of an I-140 immigrant visa petition or PERM (ETA Form 9089) labor certification application on behalf of that beneficiary.

Changes to Insurance Requirements for J-1 Visa Exchange Programs

In October of 2014, the U.S. Department of State revised Subpart A of the exchange visitor regulations. Changes to the reporting and English language proficiency requirements for exchange programs went into effect on January 5, 2015. Another major change that will take effect on May 15, 2015, involves increases to the required health insurance levels for all exchange visitors coming in on J-1 or J-2 visas. For programs beginning on or after May 15, the following insurance levels will be required

Temporary Suspension of USCIS 'Premium Processing' for H-1B Extensions

On May 19, 2015, U.S. Citizenship and Immigration Services (USCIS) announced a temporary suspension of its “premium processing” program as it relates to H-1B extensions in the United States. The suspension will be in effect from May 26, 2015, until July 27, 2015. Premium processing is an optional USCIS program whereby, for an additional government fee of $1,225, the USCIS will adjudicate petitions in 15 calendar days instead of the usual time period of several months. USCIS indicates that this measure will allow it to focus on implementation of the H-4 EAD final rule, which goes into effect on May 26, 2015.

USCIS Completes Data Entry of Fiscal Year 2016 H-1B Cap-Subject Petitions

On May 4, 2015, U.S. Citizenship and Immigration Services (USCIS) announced that it has completed its data entry of all fiscal year 2016 H-1B cap-subject petitions selected in its computer-generated random lottery process. USCIS will now begin the process of returning all H-1B cap-subject petitions that were not selected in the lottery. Due to the extremely high volume of filings for fiscal year 2016, the time frame for returning the unselected petitions is uncertain. USCIS has requested that petitioners not inquire about the status of cap-subject H-1B petitions until they receive a receipt notice (indicating selection in the lottery) or until the unselected petition is returned in the mail. USCIS will issue a further announcement once all the unselected petitions have been returned.

AAO Decision Clarifies Requirement to File Amended H-1B Petitions for Worksite Changes

On April 9, 2015, U.S. Citizenship and Immigration Services (USCIS) issued a precedential decision concerning an employer’s obligation to file an amended H-1B petition in certain scenarios involving a change in worksite. The decision by the Administrative Appeals Office (AAO)—USCIS’s administrative review body—is the culmination of a shift in agency policy on this matter.

New Precedent Decision Revoking an Approved H-1B Work Visa Petition Poses Dire Consequences for the Consulting Industry

Executive Summary: On April 9, 2015, the Administrative Appeals Office (AAO) of the U.S. Citizenship and Immigration Service (CIS) issued a precedent decision affirming the California Service Center (CSC) Director's revocation of an H-1B nonimmigrant visa approval issued to an IT services provider, Simeio Solutions, LLC (Simeio).

Record Number of H-1B Applications Emphasizes Importance of Considering Alternatives for Applicants Not Selected in Lottery

USCIS has announced that it received nearly 233,000 H-1B applications during the first week of April, nearly three times the available quota. This means that nearly two-thirds of all applications submitted to the agency will be rejected and applicants will want to consider alternative avenues to work authorization. The agency has already begun to issue receipts for cases selected through the lottery.

USCIS Receives Record Number of H-1B Work Visa Requests

On April 13, 2015, U.S. Citizenship and Immigration Service (USCIS) released the H-1B “cap” count, indicating that during the filing period it had received nearly 233,000 petitions for H-1B work visas. This means that U.S. employers filed approximately 233,000 petitions during the five-day window of opportunity that opened on April 1 and closed on April 7, 2015.

Employers’ Demand for H-1B Visas Quickly Exceeds USCIS Cap . . . Again

As in recent years, the strong demand for H-1B visas for scientists, engineers, computer programmers, and other foreign workers in so-called “specialty occupations” again led employers in the United States to file petitions in such great quantity that they quickly exceeded the number available under the U.S. Citizenship and Immigration Services (USCIS) annual cap. Each year, beginning on April 1, USCIS accepts petitions for up to 65,000 H-1B visas plus an additional 20,000 reserved for those who possess an advanced degree, interpreted as a master’s degree or higher from a U.S. college or university. On April 7, 2015, USCIS announced that it had reached its cap for fiscal year (FY) 2016 for both of those categories. This is the third year that the cap has been reached within the very first week following the initial April 1st filing date.

Alternatives to the H-1B Visa: A New L-1B Adjudication Standard?

As expected, the United States Citizenship and Immigration Services (USCIS) announced that it has met the FY2016 H-1B cap during the first week of the new filing season. Over the next few weeks, many employers who filed H-1B petitions will learn, to their frustration, that their applications were not selected through the lottery. Inevitably, many employers interested in retaining valuable talent seeking to move to the United States will ask “Are there alternatives to the H-1B?”

eLABORate: Department of Labor's Changed Stance on the Applicability of the FLSA's Administrative Exemption to Mortgage Loan Officers Upheld by Supreme Court

On March 9, 2015, the United States Supreme Court (“Court”) issued its ruling in Perez v. Mortgage Bankers Association, upholding a Department of Labor interpretation regarding the status of mortgage loan officers as non-exempt under the Fair Labor Standards Act (“FLSA”), even though the DOL’s position was a 180-degree reversal from what it had said a few years prior. At issue in Perez was whether the Department of Labor could alter its position regarding whether mortgage loan officers qualify for the administrative exemption under the FLSA without adhering to the notice-and-comment rulemaking process set forth in the Administrative Procedure Act (“APA”). To fully understand the Court’s ruling, a brief background on both the APA and the applicability of the FLSA’s administrative exemption to mortgage loan officers is necessary.

Business Immigration Zone: The H-1B Lottery, the H-2B Cap, and Suspension of the H-2B Guestworker Program

The United States is apparently adding jobs at its best pace in 20 years, according to new government data released last Friday. The U.S. added 295,000 jobs in February. And that was the 12th consecutive month in which the U.S. added more than 200,000 jobs. The headline unemployment rate was 5.5%, the lowest level in six years, according to data released by the Department of Labor. This favorable economic news means that the U.S. demand for labor is high, and U.S. workers are able to become more selective in the jobs they seek and accept. It also means that there is an increased demand for the temporary employment visas that U.S. employers normally use to cover the gap when domestic labor supply sources are unavailable.

State Department to Resume J-1 Visa Program Sponsor Site Visits

The U.S. Department of State (DOS) has informed the sponsors of J-1 intern and trainee programs that it will perform site visits to many J-1 Intern and Trainee host organizations in 2015. Some employers have reported that such visits have occurred as early as February. Program participants and host organizations have received emails from the J-1 sponsors regarding these visits. The State Department performed similar visits last spring, which involved gathering information and observing the exchange programs. Generally speaking, last year these visits were reported to have successfully demonstrated the value of these cultural exchange programs.

New DHS Rule Extends Eligibility for Work Authorization to H-4 Dependent Spouses of Certain H-1B Workers Starting May 26, 2015

Executive Summary: In a historic move, effective May 26, 2015, the Department of Homeland Security ("DHS") will allow, for the first time, H-4 spouses of H-1B workers who are pursuing permanent residence ("green cards") to apply for work authorization. DHS recognizes that the inability of H-4 spouses to work, through what is often a very lengthy green card process for the H-1B worker, may create financial and personal stressors for a household which can make the prospect of living in the U.S. long term unattainable. Given that such financial constraints can cause an H-1B worker to abandon his or her green card process and return overseas, resulting in the loss of talent and disruption to US businesses, DHS hopes that the change will encourage H-1B nonimmigrants to remain in the U.S. and see the process through to the end. In this way, DHS supports the retention of highly skilled H-1B workers and ensures that this talent remains in the U.S. to benefit our economy as opposed to the economy of a competitor nation.

Spouses of H-1B Visa Holders Who Apply for Residency Can Apply for Work Permits Starting May 26

On February 24, U.S. Citizenship and Immigration Services (USCIS) announced that it will start accepting applications for work authorization from certain spouses of H-1B visa holders beginning May 26, 2015. This regulatory change has gone through the normal rulemaking process and is not affected by the federal district court injunction issued last week blocking other administrative actions on immigration.

DHS Extends Eligibility for Work Authorization to the Spouses of Certain H-1B Status Holders

In a significant development in federal immigration reform, USCIS announced today that, effective later this spring, a new rule will provide spouses of some H-1B status holders with authorization to work in the United States. This is the initial step in a series of anticipated future reforms to American business immigration rules that USCIS previewed last November in conjunction with the President’s broader executive actions providing work authorization to millions of undocumented individuals. USCIS is responsible for adjudicating business immigration applications and announced through a press release that eligible spouses of H-1B status holders in the United States can begin requesting work authorization on and after May 26, 2015. These dependent spouses currently hold “H-4” status, which does not allow them to work without separate work-authorization sponsorship through a U.S. employer of their own.

DHS Extends Employment Authorization Documents For Certain Dependent Spouses Of H-1B Visa Holders

U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced today that, effective May 26, 2015, the Department of Homeland Security (DHS) will allow H-4 dependent spouses of certain H-1B nonimmigrants to apply for employment authorization.

It’s Decision Time: Will You Enter the H-1B "Lottery?"

In recent years, the H?1B cap has been reached in record time. Last year, the cap was reached on April 7, 2014, the first day of the filing period. Indeed, United States Citizenship and Immigration Services (USCIS) received over 172,000 applications for the 65,000 available H?1Bs. USCIS randomly selected those that would be processed and returned the other petitions, unopened, to the employers who submitted them. We have no reason to believe that this year will be any different in terms of the cap being reached on or about the first day employers can submit petitions.

Annual H-1B Visa Quota Available But Expected to Be Exhausted in Early April January 27, 2015

On April 1, 2015, the United States Customs and Immigration Services (USCIS) will begin accepting petitions for H-1B visas that are subject to annual quotas for the 2016 fiscal year (which would allow employees to start working October 1, 2015). The H-1B visa is a specialty occupation visa designed specifically for foreign national professionals with job offers from U.S. employers. Although not all employers are subject to the annual H-1B visa cap (85,000 again this year), most businesses seeking this essential tool for hiring and retaining talented foreign national employees are wise to plan ahead for the early-April filing deadline. Such planning is advised for both subsets of the 85,000 cap on H-1B visas, which includes 65,000 visas available to all petitioners and another 20,000 “Advanced Degree” visas available only to petitioners who have obtained a master’s or higher degree from U.S. universities.

Business Immigration Now: Labor Solutions for Highly Skilled Workers - April 1st Petition Deadline for H-1B Fiscal Year 2015 Cap Season

U.S. businesses may use the H-1B visa program to employ foreign workers in specialty occupations that require the application of a body of highly specialized knowledge, including, but not limited to: scientists, engineers, or computer programmers. 65,000 H-1B visas may be awarded each year; 20,000 H-1B visas are reserved for foreign nationals with a U.S. master’s degree or higher.

DOL Administrative Review Board Nixes Greedy H-1B Worker's Front Pay Appeal Based on New H-1B Employer Petition Approval

Executive Summary: The U.S. Department of Labor (DOL) has just released a final decision and order rendered this past July by the Administrative Review Board (ARB), holding that an H-1B worker's front pay claim against a former employer is cut off where it is clear that the worker changed employers and is the beneficiary of an approved H-1B petition filed by the new employer. In the Matter of Batyrbekov v. Barclays Capital (Barclays Group US Inc.), ARB Case No. 13-013, Final Decision and Order (ARB, July 16, 2014).

H-1B Cap Case Filing Receipt Deadline Set For April 1, 2015: Retailers Should Start Planning Now for FY 2016

Retailers that utilize the H-1B visa for employees in their information technology, design, marketing, buying, and planning departments should start considering their FY 2016 immigration needs now that the H-1B cap filing season is approaching (as we covered in our November 3 article, “USCIS Will Begin Accepting Cap-Subject H-1B Petitions for FY 2016 on April 1, 2015”). Employer petitions must be received by the U.S. Citizenship and Immigration Service (USCIS) on April 1, 2015. Note, however, that these cap-subject H-1B petitions will have an employment start date of October 1, 2015 or later.

EB-2 India Retrogresses Significantly in November

As predicted in the August/September 2014 issue of the Immigration eAuthority, the U.S. Department of State’s (DOS) Visa Bulletin for November 2014 indicates that the priority date for the employment-based second preference category (EB-2) for Indian nationals will retrogress more than four years, back to February 15, 2005. The Visa Bulletin sets out per country priority dates that regulate when an individual may begin the final phase of the “green card” process, either through adjustment of status or consular processing of an immigrant visa application. Those with a priority date that is earlier than the date listed for that visa category and country can proceed with their application.

U.S. Diversity Visa Opens October 1, 2014, May Help Workers Obtain Residency More Quickly

The U.S. Department of State has announced that it will open the Diversity Visa lottery registration for FY 2016 on Wednesday, October 1, 2014. The program allows nationals of states with historically low rates of immigration to the United States to obtain permanent residence (i.e., a green card) in the United States. Registration for the diversity visa (DV) program is free. On October 1, 50,000 immigrant visas will become available. The lottery may allow certain employees to obtain permanent work authorization, more quickly and at lower cost, when normal routes are unavailable.

Lesser Known DOL Regulations: "Bona Fide" Terminations for H-1B Workers

It probably falls into the category of cult classic, but one of my favorite movies is 2000’s “O Brother, Where Art Thou?” starring George Clooney. To me, it is the Coen brothers at their finest. Loosely based on Homer’s “Odyssey,” the movie follows Everett McGill (Clooney) and his companions Delmar and Pete in 1930s Mississippi. At one point later in the movie, Everett finds his ex-wife and their kids. His daughter explains that her mom’s new beau is “bona fide:”

Global Visa Delays Follow Technical Difficulties with State Department System

Last week, the U.S. Department of State’s visa processing database, which controls the issuance of visas and passports at the U.S. consulates abroad, experienced system performance issues (including outages) leading to worldwide delays in visa issuances for individuals seeking entry into the United States. The malfunction in the Consular Consolidated Database stalled the processing of U.S. visas for foreign nationals at consulates around the world, and was not limited to one consulate or country.

DOS Forecasts Significant Advancement of EB-2 India Cut-off Date; Slow Down in EB-3

The U.S. Department of State’s (DOS) Visa Bulletin sets out per country priority date cut-offs that regulate when an individual can begin the final phase of the lawful permanent residence (“green card”) process, either through adjustment of status or a consular immigrant visa application. Those with priority dates that are earlier than the date listed for that visa category and country can proceed with their applications. Since the EB-2 (Employment-Based, second preference) visa category is heavily used by citizens of India and China, it can take a substantial amount of time for the dates on the Visa Bulletin for those categories to move forward.

U.S. Consulates in Canada Temporarily Suspend TCN Visa Processing Over the Summer

U.S. visa processing posts in Canada are urging third-country national (TCN) applicants to seek appointments at other U.S. Embassies and Consulates, such as those located in the applicants’ home countries. A TCN is an individual who applies for a visa at a U.S. Embassy or Consulate in a country where the individual is not a citizen or national.

J-1 Meet and Greets—A Precursor to Site Visits?

In recent weeks, the U.S. Department of State’s (DOS) Office of Private Sector Exchange (OPSE), which designates, monitors, and partners with U.S. organizations to administer the Exchange Visitor Program, has been notifying sponsors within the Intern and Trainee categories about J-1 “discussion group events” and requesting contact information for exchange visitors.

eLABORate: U.S. Department of Labor Announces 2014 Allowable Charges for H-2A Agricultural Workers' Meals and Travel Costs

The Department of Labor recently issued a notice announcing (1) the allowable charges that H-2A employers may charge their workers when the employer provides three meals a day and (2) the maximum travel subsistence meal reimbursement that a worker with receipts may claim in 2014. The notice also includes a reminder regarding and H-2A employers' obligations with respect to overnight lodging costs.

USCIS Receives Around 172,500 H-1B Petitions, Completes Selection Lottery

On April 7, 2014, U.S. Citizenship and Immigration Services (USCIS) stated that it had received sufficient H-1B cap-subject petitions to reach the annual 65,000 “regular cap” limit for fiscal year (FY) 2015. USCIS also received more than 20,000 H-1B petitions filed on behalf of foreign nationals who possess U.S. advanced degrees.

FY 2015 H-1B Cap Reached, Selection Lottery to be Conducted

On April 7, 2014, U.S. Citizenship and Immigration Services (USCIS) announced that it had received sufficient H-1B cap-subject petitions to reach the annual 65,000 “regular cap” limit for fiscal year (FY) 2015. USCIS also received more than 20,000 H-1B petitions filed on behalf of foreign nationals who possess U.S. advanced degrees. The agency has not yet announced the total number of H-1B cap-subject petitions received during the filing period, though it is expected to be greater than the volume (approximately 124,000 cases) received last year. USCIS will reject H-1B cap-subject petitions received after April 7, 2014.

Let the H-1B Games Begin: May the Odds Be Ever in Your Favor

Katniss Everdeen’s bow and arrow will not help employers on April 1st, 2014 when the competition for H-1B work visas begins. On April 1, U.S. Citizenship and Immigration Services (“USCIS”) begins accepting H-1B petitions for foreign workers in professional or specialty occupation jobs to fill the 65,000 available slots for applicants who hold a bachelor’s degree or the equivalent and the 20,000 available slots for applicants who hold a U.S. master’s degree or higher.

Cap-Subject H-1B Petitions for FY 2015 Should Be Filed with USCIS on March 31, 2014

U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B petitions to be counted toward the annual H-1B quota (the “H-1B cap”) for fiscal year (FY) 2015 on Tuesday, April 1, 2014. USCIS will not accept H-1B cap submissions before April 1. We expect that this year, as in prior years, the H-1B cap will be met as early as the first few days of filing.

Time to File H-1B Visa Petitions!

On April 1, 2014, United States Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa petitions for employment that will begin on October 1, 2014. The H-1B visa is a popular choice for companies that plan to hire a foreign national to fill a "professional" or "specialty occupation" position requiring a minimum of a bachelor's degree in a specific field. Candidates for H-1B status include current employees in student status (F-1 or J-1), potential new hires, or employees in a different immigration status (for example, TN or L-1 status).

It's That Time of the Year—Reviewing Your H-1B Needs

In recent years, the H-1B cap has been reached in record time. Last year, the cap was reached on April 5, 2013, on the first day of the filing period. Indeed, of the petitions received on that date, USCIS randomly selected those that would be processed and returned the other petitions, unopened, to the employers who submitted them. We have no reason to believe that this year will be any different.

Heavy Demand Results in Untimely Retrogression for EB-2 India

Employers and their attorneys monitor the U.S. Department of State (DOS) Visa Bulletin to determine when sponsored employees may file adjustment of status applications on Form I-485 (the last step in the permanent residence process). While, in general, the adjustment application may be filed during the month in which the Visa Bulletin is current for the related visa category and country of chargeability, it is important to note that simply because it appears from the Visa Bulletin that those with a certain priority date are current, occasionally the visa numbers are exhausted during the posted month, causing the U.S. Citizenship and Immigration Services (USCIS) to potentially return I-485 filings for which there are suddenly insufficient numbers.

Misuse Of Visas Lands Tech Giant In Hot Water

Infosys, an Indian technology outsourcing company, has agreed to pay a fine of $34 million after an extensive investigation by federal prosecutors in Texas. The investigation alleged that the tech giant misused the B-1 business visitor visa, which is normally issued to foreign workers travelling to the United States to attend meetings or training. Opting out of the long-term and more appropriate—but albeit expensive—H-1B visa, Infosys allegedly utilized B-1 visas to bring thousands of foreign workers to the United States to engage in productive work. Federal prosecutors accused Infosys of falsifying business invitation letters and instructing foreign workers on how to mislead immigration authorities during visa interviews. Infosys was first brought to the attention of authorities as the result of a whistleblower case that was filed by a consultant in 2011. The fine is the largest ever in this type of case and proves that the misuse of visas can land a company in hot water.

Cap-Subject H-1B Petitions for FY 2015 Should Be Filed on March 31, 2014

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2015 begins on Monday, March 31, 2014. U.S. Citizenship and Immigration Services (USCIS) will accept cap-subject H-1B petitions for FY 2015 on Tuesday, April 1, 2014 to request an employment start date of October 1, 2014.

H-3 Visa – Training in the U.S. to Further a Career at Home

Training in the U.S. may be required to prepare a foreign national for a new position or a new career in his or her home country. The H-3 Trainee visa category may be the perfect option for the foreign national to gain the skills and tools needed to advance in a career or launch a new venture.

Extraordinary People

The O-1A visa category is available to foreign nationals with extraordinary ability in the arts, sciences, education, business, or athletics who want to work in the United States. These individuals are part of a small percentage of people who have risen to the very top in their respective fields of expertise.

DOL Advises Employers on Handling of PERM, H-2A, and H-2B Applications After Government Shutdown

On October 31, 2013, the U.S. Department of Labor’s (DOL) Office of Foreign Labor Certification (OFLC) announced that employers with time-sensitive recruitment or prevailing wage determinations that did not timely submit PERM or H-2B applications due to the shutdown can now file, and the filing will be deemed timely as long as it is filed by November 14, 2013.

From Couch Potatoes To Pro Athletes: USCIS Includes Video Gamers in P Visa Category

After intensive lobbying by Riot Games, a Santa Monica-based gaming company, U.S. Citizenship & Immigration Services (USCIS) is now issuing visas that are normally given to foreign professional athletes to professional gamers. This breaking news comes just in time for the League of Legends Championship Series (LCS) held at the famous Staples Center in Los Angeles during the first week of October. National and international gamers have the opportunity to showcase their gaming talent at the LCS in hopes of winning a $1 million prize.

Bromance Gone Bad: The Immigration Bunkers of a Golfer’s Marriage

The P-1A visa category is reserved for those “internationally recognized” individual athletes or teams that seek to enter the United States temporarily for the sole purpose of performing in a competition, event, or performance. The P-1 visa category also allows for “essential support personnel” to accompany the athlete to the United States in P-1S status, a derivative designation of the P-1 category. Eligibility for the P-1S category hinges on the integral nature of the relationship between the P-1 and the P-1S as well as the essential need for unique services that cannot be readily provided by any U.S. citizen.

DHS Report Signals New Challenges for L-1 Intracompany Transferees

The L visa allows qualifying multinational companies with a parent, subsidiary, branch, or affiliate abroad to transfer managers and executives (L-1A) and employees with “specialized knowledge” (L-1B) to work in the United States. To qualify, the transferee, within the three-year period preceding entry into the United States, must have been employed abroad in an executive, managerial, or specialized knowledge capacity by an affiliated entity of the U.S. employer for at least one continuous year. Since the creation of the L visa category in 1970, the L-1 statutory provisions have been modified several times and, in recent years, L-1 cases have been subject to heightened scrutiny both by the U.S. Citizenship and Immigration Services (USCIS) and the U.S. consulates abroad.

O-1A Visa for Individuals with Extraordinary Ability

The O-1A visa category is available to foreign nationals with extraordinary ability in the arts, sciences, education, business, or athletics who want to work in the United States. These individuals are a part of a small percentage of people who have risen to the very top in their respective fields of expertise.

Automatic Visa Revalidation - Skip the Daunting Visa Interview at the U.S. Consulate Abroad

Many global companies regularly send workers to train or attend meetings in Canada or Mexico. One issue often facing these employers is having to factor in the time and expense for their foreign workers to attend daunting visa interviews at the U.S. Consulate abroad to renew expired U.S. visas before being allowed back into the U.S. to resume their U.S. responsibilities. The Automatic Visa Revalidation Rule resolves this issue by permitting foreign nationals with expired nonimmigrant visa stamps to travel to Canada, Mexico or a contiguous territory for thirty days or less without obtaining a new visa for re-entry into the U.S.

USCIS Reaches H-1B Visa Cap

Today U.S. Citizenship and Immigration Services (USCIS) announced that it reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period. USCIS also announced that it received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. The last time this occurred was in 2008. In 2012, the cap was not reached for over 2.5 months. As you know, 65,000 H-1B numbers are available for persons with a bachelor's degree or its equivalent; an additional 20,000 H-1B visa numbers are available for persons holding master's degrees or above granted by a U.S. college or university.

FY 2014 H-1B Cap Reached Within the First Week

On April 5, 2013, U.S. Citizenship and Immigration Services (USCIS) announced that it had received enough petitions to meet the statutory H-1B cap of 65,000 new H-1B visas to be issued each year. The H-1B visa category is used by U.S. businesses to employ foreign workers in a “professional” or “specialty occupation” position. USCIS also announced that it received enough petitions to meet the 20,000 advanced degree exemption. USCIS reported receiving approximately 124,000 H-1B petitions within the first week of the filing period.

FY 2014 H-1B Cap Reached, Selection Lottery Conducted

On April 5, 2013, U.S. Citizenship and Immigration Services (USCIS) announced that, for the first time since 2008, the H-1B cap for FY 2014 had been met within the first week of the filing period. According to the agency, it received a sufficient number of H-1B cap-subject petitions to reach the annual 65,000 “regular cap” limit. USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption. USCIS will reject H-1B cap-subject petitions filed and received after April 5.

Visa Lottery Coming?

Experts predict the H-1B cap will be virtually instantaneously reached

Immigration On A Very Fast Track: The Race For H-1B Visas

Employers in desperate need of specialty talent from overseas will have no time for fooling around this coming April 1.

Legal Alert: USCIS Will Accept H-1B Petitions Beginning April 1, 2013

The U.S. Citizenship and Immigration Services (USCIS) will begin accepting H-1B petitions on April 1, 2013. There is an annual limit of 65,000 H-1B numbers available each year for foreign nationals with Bachelor's Degrees and an additional 20,000 for those holding U.S. Master's Degrees. In light of what appears to be a rebounding economy, we expect that the annual H-1B cap will be exhausted more quickly than in the last four years. As a point of reference, in 2012, the H-1B visa numbers under the Bachelor Degree allocation lasted for only two months.

USCIS Will Start Accepting H-1B Petitions on April 1

On Monday, April 1, 2013 U.S. Citizenship and Immigration Services (USCIS) will begin accepting FY 2014 H-1B cap-subject petitions for employment starting on October 1, 2013.

EB-5 Immigrant Investor Process

The U.S. Immigration and Nationality Act currently allocates 10,000 “EB-5” immigrant visas per year to qualified individuals seeking Lawful Permanent Resident (LPR) status - also known as a “green card” - on the basis of their capital investment in a commercial enterprise in the United States. Although the EB-5 program has existed for a number of years, its popularity is a recent development. Nexsen Pruet’s International Team includes corporate and immigration attorneys with an abundance of trans-border transaction and visa experience. We are available to help structure – or even to suggest alternative visa categories, as necessary, for – your investments in the United States.

Cap-Subject H-1B Petitions for FY 2014 Should Be Filed on March 29, 2013

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2014 begins on Friday, March 29, 2013. U.S. Citizenship and Immigration Services (USCIS) will accept cap-subject H-1B petitions for FY 2014 on Monday, April 1, 2013 for employment with a start date of October 1, 2013 or later.

Tis’ The Season - H-2B Temporary Worker Program Under Fire From the USDOL Wage and Hour Division

During the holiday season, many companies supplement the year-round workforce with temporary workers, including foreign workers employed under the H-2B temporary worker program. The United States Department of Labor Wage and Hour Division (USDOL) has been ramping up its investigation and audit process for H-2B program users. If your company relies on the H-2B program to meet seasonal or peak needs, make sure that you are in compliance with all program requirements.

L-1 Intracompany Transferee Visa for International Companies

The L-1 Intracompany Transferee visa category is a valuable visa category for international companies wishing to transfer key employees to the company’s U.S. operations. The L-1 visa category authorizes the transfer of managers, executives and individuals with specialized knowledge from a foreign company to a U.S. related company. There are two L-1 visa categories. The L-1A visa category permits the transfer of managers, and executives, while the L-1B visa category permits the transfer of individuals working in a specialized knowledge capacity.

The Benefits Of J-1 Workers – And The Costs

Many hospitality employers use the Exchange Visitor Program which is intended to promote mutual understanding between the people of the United States and the people of other countries by educational and cultural exchanges. Under the Mutual Educational and Cultural Exchange Act of 1961, foreign students are allowed to enter the United States under J-1 visas as part of a specific training and internship program or as part of a college exchange program.

FY 2013 H-1B Cap Reached

The U.S. Citizenship and Immigration Services (USCIS) has announced that, as of June 11, 2012, it had received enough H-1B cap-subject petitions to reach the annual 65,000 "regular cap" limit. On June 7, 2012, USCIS also exhausted the 20,000 H-1Bs reserved for foreign nationals with U.S.-earned advanced degrees. USCIS will reject H-1B cap-subject petitions filed and received after June 11, 2012.

July 2012 Visa Bulletin: Worldwide Cut-Off for EB-2 Category

The U.S. State Department (DOS) has issued a worldwide priority date cut-off for the EB-2 (Employment-Based, second preference) category. According to the July 2012 Visa Bulletin, the EB-2 cut-off date has retrogressed to January 1, 2009.

2013 H-1B Cap Count (6/01/12 Update)

As of June 1, 2012, the U.S. Citizenship and Immigration Services (USCIS) has received a total of approximately 74,300 H-1B cap filings for employment in FY 2013: 55,600 petitions have been receipted against the “regular cap” of 65,000, and 18,700 H-1B petitions have been receipted against the “Master’s cap” of 20,000 for foreign nationals with advanced degrees from U.S. universities and colleges.

Enforcement of Revised H-2B Program Rules Still on Hold

The H-2B program allows foreign workers to come to the United States to perform temporary nonagricultural work on a one-time, seasonal, peakload or intermittent basis. The Department of Labor implemented a final rule amending the 2008 H-2B regulations on April 27, 2012. 77 Fed. Reg. 10038-10182 (Feb. 21, 2012). The 2008 H-2B regulations utilized an attestation-based filing model where the employer conducted recruitment with no direct federal or state oversight. However, on August 30, 2010 a Pennsylvania federal judge invalidated various provisions of the 2008 regulations. See Comité De Apoyo A Los Trabajadores Agrícolas (CATA) v. Solis, 2010 WL 3431761 (E.D. Pa. 2010). Thereafter, the DOL revised the H-2B program rules to change the invalidated provisions. These changes included a shift to a compliance-based certification model with an electronic registry and added requirements to broaden the dissemination of job offer information. The changes are summarized below.

2013 H-1B Cap Count (5/18/12 Update)

As of May 18, 2012, the U.S. Citizenship and Immigration Services (USCIS) has received a total of approximately 58,000 H-1B cap filings for employment in FY 2013: 42,000 petitions have been receipted against the “regular cap” of 65,000 and 16,000 H-1B petitions have been receipted against the “Master’s cap” of 20,000 for foreign nationals with advanced degrees from U.S. universities and colleges.

FY 2013 H-1B Cap Likely to Be Reached in June

As of May 11, 2012, U.S. Citizenship and Immigration Services (USCIS) has received a total of approximately 51,500 H-1B cap filings for employment in FY 2013: 36,700 petitions have been receipted against the “regular cap” of 65,000 and 14,800 H-1B petitions have been receipted against the “Master’s cap” of 20,000 for foreign nationals with advanced degrees from U.S. universities and colleges.

FY 2013 H-1B Cap Count (5/11/12 Update)

As of May 11, 2012, the U.S. Citizenship and Immigration Services (USCIS) has received a total of approximately 51,500 H-1B cap filings for employment in FY 2013: 36,700 petitions have been receipted against the “regular cap” of 65,000 and 14,800 H-1B petitions have been receipted against the “Master’s cap” of 20,000 for foreign nationals with advanced degrees from U.S. universities and colleges.

U.S. Department of State Confirms that FY 2012 Annual Limit for China and India EB-2 Category Has Been Reached

As we reported in the March 2012 issue of the Immigration eAuthority, the U.S. Department of State (DOS) announced that, effective March 23, 2012, no further EB-2 category immigrant visas will be authorized for China-mainland born and India applicants with priority dates later than August 15, 2007. On April 23, 2012, the DOS announced that the annual limit for the China-mainland born and India EB-2 categories has in fact been reached and, therefore, no green card applications in these categories will be approved until the beginning of the new fiscal year, which is October 1, 2012.

FY 2013 H-1B Cap Count

As of April 20, 2012, the U.S. Citizenship and Immigration Services (USCIS) has received approximately 35,900 H-1B cap filings for employment in FY 2013: 25,000 petitions have been receipted against the "regular cap" of 65,000 and 10,900 H-1B petitions have been receipted against the "Master's cap" of 20,000 for foreign nationals with advanced degrees from U.S. universities and colleges.

FY 2013 H-1B Cap Count

As of April 20, 2012, the U.S. Citizenship and Immigration Services (USCIS) has received approximately 35,900 H-1B cap filings for employment in FY 2013: 25,000 petitions have been receipted against the “regular cap” of 65,000 and 10,900 H-1B petitions have been receipted against the “Master’s cap” of 20,000 for foreign nationals with advanced degrees from U.S. universities and colleges.

U.S. Department of State Confirms that FY 2012 Annual Limit for China and India EB-2 Category Has Been Reached

As we reported in the March 2012 issue of the Immigration eAuthority, the U.S. Department of State (DOS) announced that, effective March 23, 2012, no further EB-2 category immigrant visas will be authorized for China-mainland born and India applicants with priority dates later than August 15, 2007. On April 23, 2012, the DOS announced that the annual limit for the China-mainland born and India EB-2 categories has in fact been reached and, therefore, no green card applications in these categories will be approved until the beginning of the new fiscal year, which is October 1, 2012.

USCIS Issues New Guidance on Establishing the “Employer-Employee Relationship” in the H-1B Context

On March 12, 2012, U.S. Citizenship and Immigration Services (USCIS) published additional clarification on what constitutes a valid “employer-employee relationship” to qualify for the H-1B “specialty occupation” classification. The guidance also discusses the types of evidence petitioners may provide to establish that an employer-employee relationship exists, and will continue to exist, with the beneficiary throughout the duration of the requested H-1B validity period.

U.S. Department of Labor Announces New Regulations Governing H2-B Non-Agricultural Guestworker Visas February 17, 2012

On February 10, 2012, the Department of Labor’s Employment and Training Administration and Wage and Hour Division announced that it would issue new regulations requiring employers that import foreign guestworkers for seasonal positions to make a greater effort to recruit U.S. workers. The H-2B guestworker visa program allows employers to hire non-skilled seasonal foreign workers, usually for less than a year, to come to the U.S. for non-agriculture jobs. Employer groups had successfully lobbied Congress in 2011 to pass a law prohibiting the rules from taking effect before October 2011, but the ban expired without further action. Many seasonal businesses, including food processors, municipalities, parks, hotels, resorts, and landscaping companies use the H-2B program to fill seasonal needs.

Cap-Subject H-1B Petitions for FY 2013 May Be Filed on March 30, 2012

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) for FY 2013 begins on Friday, March 30, 2012. U.S. Citizenship and Immigration Services (USCIS) will accept cap-subject H-1B petitions for FY 2013 on Monday, April 2, 2012 for employment with a start date of October 1, 2012 or later.

H-1B Cap Reached

The U.S. Citizenship and Immigration Services (USCIS) announced on November 22, 2011 that it had received enough H-1B cap-subject petitions to reach the annual 65,000 "regular cap" limit and that it would reject petitions filed thereafter. USCIS exhausted the 20,000 H-1Bs reserved for foreign nationals with U.S.-earned advanced degrees on October 19. The H-1B1 category is still available for nationals of Chile and Singapore and the numerical limit on the E-3 specialty occupation category for citizens of the Commonwealth of Australia has not yet been depleted.

Get A Passing Grade When Employing H-1B Teachers

Employers of foreign teachers learned some hard lessons this year about following the rules for H-1B visa holders. In March, the U.S. Department of Labor Wage and Hour Division (WHD) assessed over $1.7 million in civil money penalties and ordered the payment of over $4.2 million in back wages against Maryland's Prince George's County Public Schools system for illegally reducing the wages of 1,044 foreign H-1B teachers when it required the teachers to pay H-1B filing fees.

Prevailing Wage Determination Delays at the Department of Labor

The U.S Department of Labor Office of Foreign Labor Certification (OFLC) National Prevailing Wage Center (NPWC) has ceased issuing prevailing wage determinations (PWDs) for H-1B and PERM applications until further notice. The NPWC also has ceased reviewing requests for reconsideration or appeals of PWDs to the Center Director. The NPWC has put all determinations on hold in order to comply with a June 15, 2011 court order stemming from a U.S. District Court decision regarding H-2B wage determinations.

DOL Issues Proposed Rulemaking to Revise H-2B Program

On March 18, 2011, the U.S. Department of Labor’s (DOL) Employment and Training Administration and its Wage and Hour Division published a proposed rule that seeks to change several aspects of the H-2B program. The proposed rule is designed to ensure U.S. workers receive the same level of protections and benefits as temporary foreign workers recruited under the H-2B program and provide better access to U.S. workers for employers with legitimate temporary labor needs. “As our economy continues to recover, it is important for U.S. workers to receive access to all jobs, and that the H-2B program is used as it was intended,” said Secretary of Labor Hilda L. Solis. “At the same time, workers employed through the H-2B program must be treated fairly.”

H-1B Employers Must Toe-The-Line

The U.S. Labor Department continues to target non-compliance by employers using the H-1B program to employ foreign nationals to work in the U.S. in professional or specialty jobs. Recent DOL audits have resulted in substantial assessments of back-wages and penalties.

Bad "VIBES" – New validation tool will give employers of foreign nationals the "willies".

Employers who hire foreign nationals are about to face new challenges in obtaining work-related visas. The United States Citizenship and Immigration Service (USCIS) is moving a test project into the real world. So, the already enforcement-rich environment is getting richer. It’s called VIBE and business leaders need additional preparation when looking to add the expertise foreign nationals can provide.

H-1B Cap Reached for FY 2011

On January 27, 2011, the U.S. Citizenship and Immigration Services (USCIS) announced that it had received a sufficient number of H-1B petitions to reach the congressionally mandated cap for FY 2011. USCIS determined that January 26, 2011 is the "final receipt date" for new H-1B worker petitions requesting employment start dates before October 1, 2011. Petitions for extensions of stay or change of employer for workers who are currently in H-1B status do not count towards the H-1B cap and USCIS will continue to accept petitions for individuals in those categories.

USDOL Targeting H-1B Pay/Benefits Compliance.

The US Labor Department is aggressively investigating compliance with the wage-rate and benefits commitments employers must make in an H-1B Labor Condition Application (LCA). These investigations are usually triggered when an H-1B employee complains that the employer failed to pay the LCA wage.

H-1B Labor Condition Application Violations Could Cost Your Company Millions

Nothing weighs down an employer more than an investigation by the Wage and Hour Division of the U.S. Department of Labor. Just ask the following information technology companies who failed to properly pay their H-1B workers and ended up paying a lot more in back pay and penalties:

2010 H-1Bs Gone: Time To Plan For 2011.

United States Citizenship and Immigration Services (USCIS) announced that the 65,000 H-1B cap for the 2010 fiscal year (FY 2010) was reached on December 21 of last year. The annual limit for new H-1Bs is 65,000 (less up to 6,800 set aside for citizens/nationals of Chile or Singapore, plus any of the unused 6,800 from the prior fiscal year). An additional 20,000 H-1Bs are available to individuals who possess a Master's or higher degree from a U.S. academic institution (the "Master's cap"). For FY 2010, the 20,000 Master's cap was reached as of September 25, 2009. "New" H-1Bs are thus unavailable until the start of FY 2011 on October 1, 2010.

Get Ready to File Your H-1B Visa Petitions on April 1, 2010.

On April 1, 2010, the United States Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa applications for employment that will begin on October 1, 2010. The H-1B visa is a popular choice for companies who want to hire a foreign worker to fill a "professional" or "specialty occupation" position requiring a minimum of a bachelor's degree or the equivalent.

The Feds Are In The Lobby: And They Want To Review Your H-1B Records/

The number of H-1B audits will continue to rise in 2010, so H-1B employers should be prepared for unannounced site visits from U.S. Citizenship and Immigration Services (USCIS) to confirm the information submitted in H-1B filings. The USCIS Office of Fraud Detection and National Security (FDNS) has recently commenced an audit of the H-1B program.

H-1B Cap Rapidly Approaching -- File Immediately!

United States Citizenship and Immigration Services (USCIS) announced that 58,900 H-1B petitions have been filed toward the 2010 Fiscal Year (FY 2010) cap of 65,000 as of November 27, 2009. Employers are urged to act quickly to file H-1B petitions for any individuals subject to the H-1B cap, such as: F-1/J-1 employees (especially those whose employment authorization will expire before September 30, 2010); prospective employees currently outside of the Unites States; and employees currently working in another time-limited visa classification (such as L-1B or TN).

H-1B Cap Approaching: Hurry to File!

After months of virtually no movement in the number of H-1B cap cases received by United States Citizenship and Immigration Services (USCIS), the number of cases filed toward the 2010 Fiscal Year (FY 2010) cap of 65,000 surged to 55,600 as of November 13, 2009. Thus, there is a new urgency for employers to quickly file H-1B petitions for any individuals subject to the H-1B cap, including: F-1/J-1 employees (especially those whose employment authorization will expire before September 30, 2010); prospective employees currently outside of the Unites States; and employees currently working in another time-limited visa classification (such as L-1B or TN).

Green Card Lottery Deadline is November 30.

The registration period for the annual immigrant visa (“green card”) lottery will close on November 30. Approximately 50,000 immigrant visas are available pursuant to the “Diversity Lottery.” Persons born in countries that have sent a large number of immigrants to the United States within the past five years are ineligible. This includes persons born in Canada, mainland China, Mexico, the Philippines and the United Kingdom. Applicants also must possess a high school education or equivalent OR possess two years of recent experience in an occupation that requires two years of training or experience to perform.

H-1B and H-2B Cap Updates.

The economy has clearly impacted the H-1B cap. Cap-subject H-1B petitions have trickled in to U.S. Citizenship and Immigration Services (USCIS) since the 2010 fiscal year filing period opened in early April. There has been virtually no movement in H-1B numbers since the initial April 1-7 filing period, with new filings apparently being offset by employer revocations and USCIS petition denials. The most recent report from USCIS indicated that approximately 45,000 petitions had been received toward the 65,000 H-1B cap and 20,000 have been received toward the advanced degree cap exempt cases. USCIS posts periodic updates to its website and Ogletree Deakins will continue to monitor and report on H-1B cap figures.

H-1B Employers Get a Visit from USCIS.

United States Citizenship and Immigration Services (USCIS) has begun a widespread initiative to visit H-1B petitioner/employer worksites. Using funds collected from the $500 H-1B fraud fee, USCIS hired outside contractors to conduct these site visits. Reports indicate that USCIS will be making thousands of such visits in 28 cities over the coming weeks.

H-1B Updates – Cap Status and iCERT Delays Possible.

A depressed job market seems to be keeping the H-1B cap from being reached. Very few cap-subject H-1B petitions have been filed since the initial April 1-7 filing period for the 2010 H-1B cap. In fact, the most recent report from United States Citizenship and Immigration Services (USCIS) indicated that 44,400 petitions had been received toward the 65,000 H-1B cap as of June 12 – this is fewer than the number that had been received as of mid-May, when USCIS reported that 45,000 petitions had been received. Once again, the current pace of H-1B filings suggests that employers will have the opportunity to file cap-subject H-1Bs for several more months. USCIS posts periodic updates to its website and Ogletree Deakins will continue to monitor and report on H-1B cap figures.

Getting Compliant in a Brave New World: The New H-2B Guest Worker Regulations (pdf).

Getting Compliant in a Brave New World: The New H-2B Guest Worker Regulations.

Still Plenty of H-1Bs Available.

Consistent with the weak job market, very few cap-subject H-1B petitions have been filed since the initial April 1-April 7 filing period for the 2010 H-1B cap. As of May 11, United States Citizenship and Immigration Services (USCIS) reports that 45,000 petitions have been received toward the 65,000 H-1B cap.

iCERT and Expected H-1B Delays Postponed to June 30.

The U.S. Department of Labor (DOL) announced on May 14 that it will keep the old Labor Condition Application (LCA) system available through June 30.

H-1B Processing Delays Likely Due to iCERT.

Beginning on May 15, 2009, all employer sponsors must use the Department of Labor’s (DOL) new iCERT system to file Labor Condition Applications (LCA) before submitting an H-1B, E-3, or H-1B1 petition. The DOL anticipates that LCA applications filed at the iCERT portal could take as long as seven business days to adjudicate. Employer sponsors should therefore expect delays in the preparation of H-1B, E-3, and H-1B1 petitions and a corresponding delay in the start date for new H-1B, E-3, or H-1B1 hires. The most critical impact will be felt with respect to H-1B “portable” change-of-employer situations as the LCA delay will prevent immediate filing of the H-1B petition and thus the new H-1B employee’s start date. Timing issues may also arise with respect to scheduling visa appointments for consular-processed E-3 and H-1B1 visa applications. Delays will also affect employers hurrying to file H-1B petitions subject to the 2010 cap, as the number of available H-1B slots dwindles to less than 18,000. The new system may also delay the filing of extensions for employees in these visa categories.

Court Halts Texas Driver License Policy.

On April 9, a Texas court issued a temporary injunction blocking the Texas Department of Public Safety (DPS) from enforcing rules that limit the issuance of driver licenses to temporary visitors and non-citizens (such as H-1B workers). However, the rules will remain in effect while an appeal filed by DPS is considered.

H-1B Cap Not Reached During Initial Filing Period.

U.S. Citizenship and Immigration Services (USCIS) has announced that it will continue accepting H-1B visa petitions subject to the fiscal year 2010 (FY 2010) cap. Unlike last year, the cap was not reached during the initial filing period from April 1 to April 7. Last year, approximately 163,000 petitions were received during the initial filing period, including more than 31,000 filed under the advanced degree (“Master’s cap”) category. As of April 9, USCIS has received approximately 42,000 H-1B petitions counting toward the 65,000 FY 2010 cap and has announced that it has received nearly all cases it will accept under the 20,000 FY 2010 Master’s cap.

H-1B Visas Still Available for FY2010.

The U.S. Citizenship and Immigration Services (USCIS) announced on April 9, 2009 that it continues to accept H-1B cap subject petitions for FY2010 (October 1, 2009 to September 30, 2010) and will continue to do so until it determines that it has received sufficient petitions to reach the cap.

USCIS Updates: Premium Processing for I-140’s, FBI Clearances and P-1 Athletes.

United States Citizenship and Immigration Services (USCIS) has recently provided some good news on a few different fronts, though the benefits of these items accrue to relatively narrow classes of immigration applicants.

Final Call for H-1B Petitions; TARP Recipients Restricted.

Employers need to act urgently to identify any individuals they wish to sponsor for H-1B status. The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) begins on April 1, 2009. Persons currently employed as F-1 students or J-1 trainees and persons outside of the United States commonly require new, cap-subject H-1Bs. April 1 is the initial filing date for petitions seeking H-1B status with an effective date of October 1, 2009. Cases actually need to be mailed on March 31 to secure receipt by U.S. Citizenship and Immigration Services (USCIS) on April 1.

Layoffs, Furloughs, or Pay Reduction? H-1B Employers Beware.

The economic crisis has employers considering unprecedented measures to cut expenses and reshape workforces to ensure maximum efficiency. H-1B employers need to be mindful of special considerations impacting them in the case of a layoff, furlough, pay reduction or other material change in the H-1B worker’s terms of employment.

H-1B Filing Period Approaching.

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) begins on April 1, 2009. Persons currently employed as F-1 students or J-1 trainees and persons outside of the United States commonly require new, cap-subject H-1Bs. April 1 is the initial filing date for petitions seeking H-1B status with an effective date of October 1, 2009. (Cases actually need to be mailed on March 31 to ensure receipt by USCIS on April 1.)

H-1B Hiring Limited for TARP Recipients.

The American Recovery and Investment Act of 2009 (also referred to as the “stimulus bill”) signed by President Barack Obama on February 17 contains a provision requiring recipients of TARP funds or Federal Reserve loans to comply with requirements normally placed on H-1B dependent employers. Generally, an H-1B dependent employer is one with 15 percent or more of its total workforce comprised of H-1B workers. Such dependent employers must make additional attestations in hiring H-1B workers, including:

It's Time Again for Reviewing Your H-1B Needs.

In recent years, the H-1B cap has been reached in record time. Last year, the cap was reached on April 1, 2008, the first day that U.S. Citizenship and Immigration Services (“USCIS”) accepted applications for each fiscal year. Indeed, of the petitions received on that date, USCIS randomly selected those that would be processed. We have no reason to believe that this year will be any different.

Deadline for New H-1B Visa Applications Approaching.

On April 1, 2009, U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa applications for employment starting on and after October 1, 2009.

New H-1B Petitions May Be Filed on March 31, 2009.

The filing period for “new” H-1B petitions to be counted against the annual H-1B quota (the “H-1B cap”) begins on Tuesday, March 31, 2009. Thus, employers are encouraged to begin identifying current and future employees who will need H-1B visa status to be legally employed. Persons currently employed as F-1 students or J-1 trainees and persons outside of the United States commonly require new, cap-subject H-1Bs. March 31 is the initial filing date for petitions seeking H-1B status with an effective date of October 1, 2009.

Visa Waiver Program Expansion Update.

The Visa Waiver Program (VWP) was expanded on November 17, 2008 to add nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Slovakia and South Korea. According to the Department of Homeland Security press release, nationals of those countries can now travel to the United States for business or tourism for a period of 90 days without the need for a visitor visa provided they hold an e-Passport and have completed their registration for the Electronic System for Travel Authorization (ESTA) program.

H-2B Cap Reached.

U.S. Citizenship and Immigration Services (USCIS) announced that July 29 would be the “final receipt date” for H-2B petitions filed requesting a start date between October 1, 2008 and March 31, 2009, the first half of Fiscal Year 2009 (FY2009).

H-2B News: Cap Count and Proposed Regulations.

U.S. Citizenship and Immigration Services (USCIS) updated its “cap count” for H-2B petitions on July 17 to show that 23,589 of the target 40,000 beneficiaries for the first half of Fiscal Year 2009 had been approved or requested. The H-2B visa category allows U.S. employers in an industry with a seasonal, peakload or intermittent need (or any employer with a “one-time” need) to augment their regular workforce with temporary workers. The H-2B process includes a temporary labor certification, a process whereby the employer must recruit for U.S. workers and, if unsuccessful in locating qualified U.S. workers, can then sponsor foreign national beneficiaries for H-2B status. H-2Bs are commonly used in construction, manufacturing, food service and resort/hospitality industries.

Voluntary ESTA Registration For Visa Waiver Travel Starts August 1.

On August 1, 2008, the Department of Homeland Security (DHS) will begin accepting voluntary registrations for the Electronic System for Travel Authorization (ESTA) program. ESTA is an automated system used to verify the eligibility of visitors to travel to the United States under the Visa Waiver Program (VWP). (The program allows citizens and nationals of selected countries, including Australia, Japan, Singapore and most Western European countries, to travel to the United States for business or tourism for a period of up to 90 days without the need for a visa.) ESTA registration is expected to become mandatory for VWP travelers in January 2009. At that time, all VWP travelers will be required to obtain an ESTA approval prior to boarding a carrier to travel by air or sea (land ports from Canada and Mexico are exempt).

TN Validity Period to Increase from One to Three Years.

On May 5, USCIS announced its intention to increase the period of admission of Trade NAFTA (TN) professional workers from one to three years.

Green Card Processing Updates - Visa Bulletin, Two-Year EADs and Premium Processing for Sixth-Year H-1Bs.

Several recent developments may impact green card processing for numerous applicants.

Cap Reached For 2009 H-1B Allocation.

U.S. Citizenship and Immigration Services (USCIS) recently announced that it has received more than enough petitions during the initial filing period to fill the H-1B allocation for 2009. This includes both the 20,000 "advanced degree" category and the "regular" 65,000 cap.

PIMS Causes Visa Processing Delays.

Last November, United States Consulates initiated a policy of accessing nonimmigrant (H-1B, L-1, etc.) visa petitions through a new computerized report called the Petition Information Management Service (PIMS). The electronic PIMS record became the primary evidence required by Consulates to confirm petition approval and thereby authorize visa issuance. As the system had incomplete data, visa applicants often faced visa issuance delays ranging from a few hours to several days. While the number of delays caused by PIMS verifications has seemingly been reduced, issues remain.

H-1B Cap Reached.

U.S. Citizenship and Immigration Services (USCIS) has announced it received more than enough petitions during the initial filing period from April 1 to April 7 to fill the H-1B allocation for 2009. This includes both the 20,000 “advanced degree” category and the “regular” 65,000 cap.

F-1 Student Visa Optional Practical Training Cap-Gap/STEM Extension Rule Announced by Department of Homeland Security.

On April 4, 2008, the U.S. Department of Homeland Security (DHS) announced its intent to release an interim final rule that would affect F-1 students’ Optional Practical Training (OPT) in two significant ways.

New H-1Bs may be filed on Monday, March 31, 2008 - Cap likely to be hit one day (pdf).

Employers may begin filing "new" H-1B petitions on Monday, March 31.

H-2B Cap Reached for Second Half of FY 2008.

On January 3, 2008, U.S. Citizenship and Immigration Services (USCIS) announced that it had received a sufficient number of H-2B petitions to reach the congressionally mandated cap of 33,000 for the second half of FY 2008. USCIS determined that January 2, 2008 is the "final receipt date" for new H-2B worker petitions requesting employment start dates before October 1, 2008. USCIS will reject any petition for new H-2B workers received after January 2, 2008 requesting employment start dates before October 1, 2008.

DOS and USCIS Reverse Decision - All Employment Based Numbers Are Current.

The U.S. Citizenship and Immigration Services (USCIS) and Department of State (DOS) have just announced that the July 2 update has been withdrawn and the initial July Visa Bulletin is in effect. It will remain valid for 31 days – i.e., all employment-based green card categories (except for the “Other Workers” category) will be “current” and USCIS will accept applications filed not later than August 17, 2007.

Visa Alert - Retrogression Effective July 2, 2007.

The Department of State (DOS) has announced that, effective Monday, July 2, 2007, the full supply of employment-based visa numbers available for FY2007 (ending September 30, 2007) has been depleted. The U.S. Citizenship and Immigration Services (USCIS) has also announced that it will reject Form I-485 Adjustment of Status applications received in July following the DOS announcement.

Immigration Alert - H-1B Cap Met.

Employers must await the lotter to know whether CIS has accepted their petitions.

New H-1Bs May Be Filed On Friday, March 30, 2007 - Cap May Be Hit In One Day.

The annual H-1B quota was likely met yesterday.

New Opportunity To Apply For H-1B Visas Fast Approaching (pdf).

On April 1, 2007, the United States Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa applications for FY 2008, for employment that will begin on October 1, 2007.

'Tis The Season For Reviewing Your H-1B Needs (pdf).

As we reported in our June 2006 E*Zine, if you are thinking about hiring foreign nationals for professional workers in a specialty occupation, you need to plan far in advance due to the cap. “Specialty occupation” means an occupation which requires theoretical and practical application of a body of highly specialized knowledge to fully perform the occupation, and which requires the attainment of a bachelor’s degree as a minimum requirement to perform the job duties.