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.
Articles Discussing Employment-Related Visas.
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.
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).
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.
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.
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.
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.
The U.S. Court of Appeals, in Denver, has issued an opinion putting the entire H-2B labor certification and visa process in jeopardy.
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.”
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.
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:
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.
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.
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.
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.