H-1B Cap reached, lottery triggered

News Release from Jewell Stewart & Pratt PC

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) 2017. 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 2017 cap or the advanced degree exemption after today.

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2017 cap-subject petitions received through April 7, 2016. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.

USCIS is expected to provide more detailed information about the H-1B cap soon.

© Jewell Stewart & Pratt PC 2016

STEM” extensions of F-1 OPT work authorization invalidated by D.C. federal court

News Release from Jewell & Associates, PC On August 12, 2015 the U.S. District Court for the District of Columbia invalidated the 2008 interim final rule of the U.S. Department of Homeland Security that created eligibility for a 17-month extension of F-1 OPT work authorization for graduates whose F-1 OPT work authorization was based on a degree in a “STEM” field. The court found that DHS failed to provide the legally required notice and comment period that must accompany any significant new rule, and failed to show sufficient justification to bypass the normal notice and comment requirement and issue the rule via emergency rulemaking.

Although the court invalidated the 2008 rule and its amendments, it placed an immediate six-month stay on the vacatur, until February 12, 2016. Practically, this means that existing F-1 OPT STEM extensions remain valid through February 12, 2016. It is not yet clear what the court ruling means for USCIS’s action on pending or new applications for STEM extensions. If DHS reintroduces the 2008 rule with a proper notice and comment period, and it takes effect before February 12, 2016, there should be no disruption to STEM OPT processes or employment.

© Jewell & Associates, PC 2015

USCIS suspends premium processing for H-1B petitions where extension of stay is requested

News Release from Jewell & Associates, PC As of May 26, 2015 USCIS has temporarily suspended premium processing for all H-1B petitions where a request for extension of stay is requested. This is to allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule, and to adjudicate the first applications under that rule, in a timely manner. Premium processing for H-1B extension of stay petitions is scheduled to resume on July 27, 2015.

Premium processing remains available for certain H-1B petitions, including:

• Petitions subject to the H-1B cap, and cap-exempt petitions, as long as the petition requests a change of nonimmigrant status, or consular notification.
• Petitions filed on behalf of individuals who already have H-1B status, as long as the petition requests consular notification, or an amendment of a previously approved petition that does not include a request for an extension of stay.
• All H-1B1 petitions.

USCIS will continue to premium process H-1B extension of stay petitions filed prior to May 26, 2015.

The full text of USCIS’s announcement is available here.

© Jewell & Associates, PC 2015

H-1B Cap update – USCIS reports 233,000 H-1B petitions received

News Release from Jewell & Associates, PC On April 7 USCIS announced that it received approximately 233,000 H-1B petitions in the filing period that began on April 1. Today 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 the 20,000 set-aside for beneficiaries with U.S. advanced degrees 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 & Associates, PC 2015

USCIS posts summary of upcoming executive actions on immigration

News Release from Jewell & Associates, PC On December 5, 2014, USCIS posted on its website a summary of the executive actions on immigration announced by President Obama on November 20, 2014.  With respect to each of the major planned initiatives, the USCIS summary sets forth, to the extent currently known:

• Who is eligible
• What the initiative will do
• When an applicant can begin to make a request
• How to make a request

Importantly, the summary cautions: “These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available. You could become a victim of an immigration scam.  Subscribe to this page to get updates when new information is posted.”  USCIS’s full posting, along with the link to subscribe to updates, is here.

By Phyllis Jewell. © Jewell & Associates, PC 2014

President Obama intends to reform the immigration system through executive action

News Release from Jewell & Associates, PC

Yesterday the President announced his intent to reform the immigration system through executive action in ten key areas. Planned action that will be of particular interest to the business community include:

Support to High-Skilled Workers and Business

The Department of Homeland Security (DHS) will take action to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and expand opportunities for students to gain on-the-job training. The full memo can be found here. Planned actions include:

1. Modernizing the employment-based immigrant visa system, including working with the State Department to ensure that available immigrant visas are issued, and to improve the system for determining when visas are available; and considering the amendment of regulations to ensure that long-standing visa petitions remain valid in certain cases where a beneficiary changes jobs or employers.
2. Reforming Optional Practical Training for foreign students and graduates from U.S. universities.
3. Promoting research and development, including increased use of the National Interest Waiver, and a potential program permitting DHS to grant parole status to inventors, researchers, and start-up founders who do not yet qualify for NIW.
4. Bringing greater consistency to the L-1B visa program.
5. Increasing worker portability.

Modernization of the PERM Program

The Department of Labor (DOL) has not examined or modified the permanent labor certification program since its inception in 2005. In response to ongoing feedback, including that the regulatory requirements governing PERM recruitment do not align with worker or industry practices, DOL will undertake a review of the program and regulations. The full memo can be found here. DOL will seek input on:

1. How to identify labor force occupational shortages and surpluses, and how to align domestic worker recruitment requirements with those.
2. Modernizing U.S. worker recruitment requirements.
3. Clarifying employer obligations to ensure PERM positions are open to U.S. workers.
4. Ranges of case processing timeframes and possibilities for premium processing.
5. Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

Other planned executive actions include strengthening border security; replacing Secure Communities; expanding Deferred Action for Childhood Arrivals; and extending deferred action to parents of U.S. citizens and Lawful Permanent Residents.

Note that the immigration agencies are NOT accepting applications under these newly announced programs and initiatives at this time. For resources on how to protect yourself from immigration scams and fraud visit stopnotariofraud.org.

Jewell & Associates, PC will provide further coverage of the details, as they become available, in future posts.

By Christopher Beckerson and Claire Pratt. © Jewell & Associates, PC 2014

DHS to propose allowing work authorization for spouses of certain H-1B workers, and more

News Release from Jewell & Associates, PC

The Department of Homeland Security has announced that it will publish a proposed rule that would:

1. Allow work authorization for H-4 spouses of certain H-1B workers in the permanent residence (green card) process based on employment. For the H-4 spouse to qualify for work authorization, the H-1B worker would have to (a) be the beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker, or (b) have been granted an extension of H-1B status beyond the usual six-year limit, under the provisions of AC21 (the American Competitiveness in the Twenty-first Century Act of 2000, as amended).
2. Clarify that Australian E-3 workers and Singaporean and Chilean H-1B1 workers do not need EAD cards to work for the sponsoring employer; also, allow Australian E-3s,  Singaporean and Chilean H-1B1s, and Northern Marianas CW-1s to continue working for up to 240 days during the pendency of an E-3, H-1B 1, or CW-1 extension application filed with USCIS. The rule would add E-3 and H-1B1 nonimmigrant workers to the list of classes of aliens authorized for employment “incident to status” with a specific employer, meaning that the E-3 or H-1B status itself carries work authorization, without the necessity of a separate Employment Authorization Document (EAD card).  The rule would also bring E-3, H-1B1, and CW-1 nonimmigrant workers into line with H-1Bs and other work classifications in allowing up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while an extension request is pending.
3. Expand the list of evidentiary criteria for EB-1 outstanding professors and researchers to include “other comparable evidence.” This would add “other comparable evidence” to the list of types of evidence supporting an EB-1 immigrant petition for an “outstanding professor or researcher,” i.e., an EB-1B petition.  EB-1A petitions, for persons of “extraordinary ability,” already permit the use of “other comparable evidence.”

Further information can be found in the White House press release.

By Phyllis Jewell and Christopher Beckerson. © Jewell & Associates, PC 2014

H-1B Cap update – USCIS reports 172,500 H-1B petitions received

News Release from Jewell & Associates, PC

Today USCIS announced that it received approximately 172,500 H-1B petitions in the filing period that began on April 1. On April 10 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 & Associates, PC 2014