H-1B cap update – USCIS reports 190,098 petitions received

Today USCIS announced that it received 190,098 H-1B petitions in the filing period that began on April 2. On April 11 USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the cap. USCIS says that it conducted the selection process for advanced degree exemption petitions first; all advanced degree petitions not selected were then made part of the random selection process for the 65,000 limit. Any petitions not randomly selected will be rejected and returned with the filing fees.

© Jewell Stewart & Pratt PC 2018

Travel Ban 3.0 – On Hold by the Courts

In two separate Federal Court decisions issued on October 17, 2017, the majority of the travel restrictions set forth in President Trump’s September 24, 2017 proclamation titled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or other Public-Safety Threats” were blocked. As a result, nationals of Iran, Libya, Syria, Yemen, Somalia and Chad will not be restricted from traveling to the United States. However, all immigrants and nonimmigrants from North Korea and certain government officials and their family members from Venezuela traveling on business or tourist visas (B-1/B-2) will continue to be restricted from travel to the U.S. The U.S. Department of Justice has stated that it will appeal these rulings.  

© Jewell Stewart & Pratt PC 2017

Update: State Department now using Form DS-5535, Supplemental Questions for Visa Applicants

News Release from Jewell Stewart & Pratt PC – June 5, 2017 As noted in our prior post, the Department of State recently published a Notice of request for emergency approval by the Office of Management and Budget (OMB) for its new form, Form DS-5535, Supplemental Questions for Visa Applicants. The form was designed to collect extra information from visa applicants who have been determined to warrant additional scrutiny in connection with terrorism or other national security-related visa ineligibility.

According to a news report from The Washington Post, Form DS-5535 was approved by the OMB and has been in use at U.S. embassies and consulates since May 25, 2017. A copy of the form is currently available on the U.S. Embassy and Consulates in Turkey website. The extra information it collects includes:

• Countries visited over the last fifteen years
• Email addresses used in the past five years
• Social media handles and aliases used in the past five years

Form DS-5535 is authorized on an emergency basis through November 2017, but as The Washington Post article notes, it is expected to be authorized on a permanent basis.

© Jewell Stewart & Pratt PC 2017

U.S. district court dismisses legal challenge to rule allowing 24-month STEM OPT extensions

News Release from Jewell Stewart & Pratt – April 21, 2017 On March 11, 2016, the U.S. Department of Homeland Security (DHS) published a Final Rule that provided for, among other items, 24-month extensions to Optional Practical Training (OPT) work authorization for foreign nationals in F-1 student visa status who would otherwise be limited to twelve months of OPT. See our blog post discussing the rule here.

On June 17, 2016 this new Final Rule became the subject of a lawsuit before the U.S. District Court for the District of Columbia. On April 19, 2017, however, the court dismissed the lawsuit. The court found that the plaintiffs failed to state a claim upon which relief could be granted.

The Final Rule therefore remains in force: 24-month extensions to post-completion OPT are still available in appropriate circumstances, and prior grants of such OPT remain valid. The plaintiffs have not yet announced whether they will appeal the decision.

© Jewell Stewart & Pratt 2017

New Executive Order to "Buy American, Hire American" requires government agencies to suggest reforms to “promote the proper functioning of the H-1B visa program”

News Release from Jewell Stewart & Pratt – April 18, 2017 An Executive Order signed by President Trump on April 18, 2017 directs the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security to, among other items, (1) suggest reforms to help “promote the proper functioning of the H-1B visa program", including ensuring that H-1B visas are awarded to the most-skilled or highest-paid beneficiaries; and (2) propose new rules and issue new guidance to protect the interests of U.S. workers in the administration of the U.S. immigration system, "including through the prevention of fraud or abuse." However, the Executive Order makes no immediate changes to any nonimmigrant visa programs, including the H-1B program. It also does not provide a deadline for the agencies to produce their proposals, guidance, and suggested reforms.

© Jewell Stewart & Pratt PC 2017

H-1B cap update – USCIS reports 199,000 petitions received

News Release from Jewell Stewart & Pratt PC - April 17, 2017 Today USCIS announced that it received 199,000 H-1B petitions in the filing period that began on April 1. On April 11 USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the cap. USCIS says that it conducted the selection process for advanced degree exemption petitions first; all advanced degree petitions not selected were then made part of the random selection process for the 65,000 limit. Any petitions not randomly selected will be rejected and returned with the filing fees.

© Jewell Stewart & Pratt PC 2017

H-1B cap reached for FY 2018, lottery triggered

News Release from Jewell Stewart & Pratt PC - April 7, 2017

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2018. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the U.S. advanced degree exemption. USCIS will not accept H-1B petitions subject to the FY 2018 cap or the advanced degree exemption after today.

USCIS is expected to use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2018 cap-subject petitions received through April 7, 2017. The agency typically conducts the selection process for advanced degree exemption petitions first, and includes all advanced degree petitions not selected in the random selection process for the 65,000 limit. The exact day of the random selection process has not yet been announced.

USCIS will likely provide more detailed information about the H-1B cap next week.

© Jewell Stewart & Pratt PC 2017

USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

News Release from Jewell Stewart & Pratt PC The final rule “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers,” was published today in the Federal Register, and will take effect 60 days later (January 17, 2017). This is notable as it will be effective before the inauguration of the new president two days later.

This rule is concerned with creating and amending regulations related to employment-based visa programs and is intended to better enable U.S. employers in retaining high-skilled nonimmigrant workers through temporary and permanent sponsorship, and to provide job flexibility and certainty to foreign workers who have been in the U.S. for some time.

Jewell Stewart & Pratt will be posting analysis on the rule next week, in the interim, the highlights are:

• Retention of approved immigrant visa petitions (I-140) and priority dates.
• H-1B extensions beyond the sixth year.
• Job portability for H-1B workers and for those who are in the final step of the permanent residence process.
• Definition of nonprofit entity for H-1B cap exemption.
• Grace periods for nonimmigrant workers.
• Employment authorization in compelling circumstances for certain beneficiaries (and their dependents) of an approved I-140 petition, as well as employment authorization automatic extensions in certain circumstances.

© Jewell Stewart & Pratt PC 2016

Anomalous decision by DOL Administrative Law Judge allows deduction of H-1B visa fees from final paycheck

News Release from Jewell Stewart & Pratt PC On October 26, 2016, a U.S. Department of Labor (DOL) Administrative Law Judge (ALJ) found that H-1B-related legal expenditures made by the employer could be deducted from the employee's final paycheck (Administrator v. Woodmen of the World Life Insurance Society). However, the reasoning on which the decision was based appears anomalous against the backdrop of other DOL pronouncements on an H-1B employer's wage obligations, and leaves important questions unanswered.

In the case, an H-1B employee resigned from his job, and his final paycheck consisted of wages for his final nine days of work, plus his accrued but unused vacation time. The employer invoked the terms of a payback agreement the employer had with the employee relating to visa fees, and withheld the H-1B legal fees and costs from the employee's final check. The parties apparently did not disagree that the $1,225 government filing fee for Premium Processing Service (PPS) had been for the employee's convenience rather than the employer's business need, so withholding of that $1,225 from the final check was not in dispute. Regarding the other legal fees and costs, however, the ALJ held that the employer withheld those from "benefits" (the employee's accrued but unused vacation time) and not from "wages" (the nine days he employee had worked in the final pay period), and therefore the employer's withholding of the visa fees did not have the effect of reducing the employee's wages below the H-1B "required wage rate," however the required wage rate may have been calculated. (The parties disagreed on what the "actual wage" was and therefore on the "required wage rate," but the ALJ sidestepped that issue.)

The Woodmen Life decision is troubling because it suggests the illogical conclusion that an employee who leaves employment with a zero balance of accrued vacation can't be docked for the employer's H-1B expenditures, but an employee who leaves with unused vacation time can have the employer's H-1B expenditures taken out of their final paycheck. In addition, the decision is potentially misleading in that it omits any caveat regarding state employment law. It may have been the case that, in the state where the employee worked, which was not disclosed in the decision, state law did not equate accrued vacation pay with "wages," but in some states, including California, earned vacation time is expressly considered "wages," and vacation time is earned, or vests, as labor is performed. Therefore, in some states, making a distinction between "benefits" and "wages" for the purpose of docking an H-1B employee's final paycheck for the employer's H-1B expenditures would be impermissible under state law.

The Woodmen Life decision is anomalous when considered alongside DOL's regulations and policy statements on an H-1B employer's wage obligations, which appear to prohibit the enforcement of payback agreements whereby the employee reimburses the employer for H-1B legal fees and costs. Under DOL regulations, the H-1B employer must pay the H-1B employee wages at the “required wage rate” for the position. The “required wage rate” is defined as the higher of (1) the “actual wage” (the rate the employer pays to all its other employees with similar experience and qualifications who are performing the same job in the same geographic area), and (2) the “prevailing wage” (the average wage paid to workers in the same occupational classification in the geographic area of intended employment at the time the application is filed). It has long been DOL's position that the legal fees and costs of the H-1B process are an employer's business expense and must not be passed on, even indirectly, to the employee; otherwise, the employer would be effectively reducing the employee's pay below the H-1B “required wage rate.”

It is prudent for employers to consult with legal counsel before adopting a policy, practice, or agreement in which an H-1B employee may be made responsible for all or part of the H-1B-related expenditures, because generally such policies, practices, and agreements are prohibited by law, and any exceptions would be narrowly drawn.

Phyllis Jewell

© Jewell Stewart & Pratt PC 2016

CBP announces Electronic Visa Update System details

News Release from Jewell Stewart & Pratt PC From November 29, 2016, all People’s Republic of China (PRC) passport holders carrying a 10-year visa will be required to have a valid Electronic Visa Update System (EVUS) enrollment when traveling to the United States.

EVUS is the online system used by nationals of the PRC holding a 10-year B1/B2, B1, or B2 visa. Visitors update their basic biographic information on EVUS to facilitate their travel to the United States.

U.S. Customs & Border Patrol (CBP) recommends that travelers enroll in EVUS as early as possible, or at least 72 hours before they are scheduled to leave for the United States. The fee to enroll is $8, and enrollments are valid for two years or until the traveler obtains a new passport or visa, whichever comes first.

If PRC travelers do not update their information at least every two years, or upon obtaining a new passports after EVUS becomes effective, they will not be able to use their 10-year visas. For more information, see the full announcement on the CBP website.

© Jewell Stewart & Pratt PC 2016

Extraordinary visa wait times at U.S. consular posts in India

News Release from Jewell Stewart & Pratt PC The American Immigration Lawyers Association (AILA) has reported that U.S. Consular Posts in India are experiencing extraordinary wait times for nonimmigrant visa interview appointments. The wait times for all categories other than B, F, and J are currently:

• Chennai – 75 days
• Hyderabad – 93 days
• Kolkata – 96 days
• Mumbai – 88 days
• New Delhi – 100 days

These wait times are likely to continue, if not worsen, during the summer. Indian nationals who are considering obtaining a new visa may therefore wish to defer that travel until the backlogs have subsided; or, if their travel is essential, to be prepared for long delays in the scheduling of visa interviews. AILA provides the following helpful reminders:

• The Mission India visa appointment system allows requests for expedited appointments. First priority goes to cases with humanitarian issues. Second priority goes to business emergencies; such requests must include reasons why the need to travel is urgent, why advance planning was not possible, the impact to the business if the travel does not occur, etc.

• Applicants for a petition-based visa must have already obtained USCIS approval of the underlying petition before requesting an interview.

• If an Indian national has reason to travel to another jurisdiction, applying outside of India as a Third Country National may be an option. Such applications are mostly likely to be successful in petition-based cases where INA §214(b) does not apply (i.e., H-1B and L-1).

Jewell Stewart & Pratt will continue to monitor progress and will report significant developments here.

AILA members can access the original post at www.aila.org (doc. no. 16061330, dated June 13, 2016).

© Jewell Stewart & Pratt PC 2016

H-1B Cap update – USCIS reports 236,000 H-1B petitions received

News Release from Jewell Stewart & Pratt PC

Today USCIS announced that it received over 236,000 H-1B petitions in the filing period that began on April 1. On April 9 USCIS used a computer-generated random selection process (commonly known as a “lottery”) to select a sufficient number of petitions needed to meet the cap. USCIS says that it conducted the selection process for advanced degree exemption petitions first; all advanced degree petitions not selected were then made part of the random selection process for the 65,000 limit. Any petitions not randomly selected will be rejected and returned with the filing fees.

© Jewell Stewart & Pratt PC 2016