Visa Bulletin

The Department of State has announced the availability of immigrant numbers during August in the Visa Bulletin for August 2017.

| Immigrant

USCIS to Suspend Premium Processing for All H-1B petitions

On Friday, March 3, 2017, USCIS announced that starting April 3, 2017, it will temporarily suspend premium processing for all H-1B petitions.

As this sudden change will severely impact processing of these petitions by our clients, we are publishing this bullet point client advisory highlighting what you should know along with certain recommendations and clarifications.

  • As it appears to apply to all H-1B petitions, this will include filings for new H-1B’s (which cannot be filed until Monday, April 3, 2017), includes petitions by cap-exempt employers and even applies to extensions/change of employer applications for foreign nationals who already hold H-1B status.
  • USCIS indicates it will continue to process Form I-129 H-1B petitions if the petitioner properly filed Form I-907 before the cut-off date. USCIS will return the premium processing fee if:
      1. The I-907 was filed before April 3, 2017; and
      2.  Adjudicative action was not taken within the 15 calendar day processing period.

Unfortunately, it is not clear what USCIS will do with cases that were (will be) filed under premium processing but not adjudicated by April 3. Thus, if you are thinking of upgrading a pending petition to premium processing, try to do this by mid-March to increase the likelihood of it being both filed and processed before April 3.

If you deem it necessary to file for premium processing before the April 3, 2017 cut-off date, (this may be desirable for those requiring international travel, renewal of some state driver’s licenses) submit two separate checks, one for the I-129 and one for I-907.

Still in effect is the option of employers requesting “expedited processing” per USCIS guidelines which have been very narrow, restricted and difficult to meet. These standards may be liberalized with the premium processing no longer available.

Please note foreign nationals with H-1B status can still file to change H-1B employers and then change employers (without premium processing) upon the filing but obviously now run an additional risk if the new H-1B petition is not approved several months down the road.

Premium processing remains in effect for all other (non-H-1B) petitions.

| Nonimmigrant

Biometrics appointment update in New York area

Due to a marked increase in the number of applicants appearing at their centers days/weeks ahead of their scheduled biometric appointments at the USCIS Application Support Centers in New York area,  ASC managers will likely to request that applicants only appear for biometrics on their scheduled appointment date, as the centers do not have the capacity to accommodate this request from their customers at this time.

| Immigrant, ビザ申請手続き

It’s H-1B Season!

The new H-1B season is upon us.

Consistent with our recommendations in previous years, our office strongly suggests that employers file new H-1B petitions (for authorized H-1B employment that will commence on October 1, 2017) on April 1, 2017 or as close to April 1, 2017 as possible.

This recommendation applies to petitions you will be filing for new hires, including but not limited to, those who are recent university graduates from U.S. academic institutions who may or may not currently have temporary OPT work authorization.

You may remember that for the last several years, there have been many more petitions than H-1B visa numbers allotted by the government and even for many of those who filed the first week of April, they did not receive an H-1B number unless they were selected in the H-1B lottery.

Regardless of this uncertainty, if you are interested in sponsoring someone, it is very important that we file these H-1B petitions the first week of April 2017 to ensure that these petitions are eligible for the likely H-1B lottery.

Those applicants who did not get selected in the previous years H-1B lottery may now reapply for another chance at an H-1B visa number.

Please note that this urgency regarding the April 1 filing date does not apply to those employers or prospective employees, who are exempt from the cap, such as foreign nationals who already possess H-1B visa status, or for a foreign national who has had prior H-1B status prior and did not exhaust their full six (6) years of eligibility, or those sponsored by cap exempt organizations.

| Nonimmigrant

President Trump’s Executive Order

Section 3 of the President Trump’s Executive Order, signed on January 27, 2017, suspends the immigrant and non-immigrant entry of nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for 90 days.

Since the order itself does not define what is meant by “from one of the designated countries,” it would be prudent for those who hold passports from those countries, are citizens, nationals, dual nationals or those born in one of the listed countries to not plan any travel outside the United States for the foreseeable future.

Our caution about oversees travel would also to apply to “green card” holders (lawful permanent residents) from these countries, although it appears from the most recent government updates that “green card holders” from these countries will be eligible for admission into the United States on a case by case basis subject to extensive questioning at the time of their attempted entry into the United States.

We should emphasize here that this executive order should not affect entries into the United States by foreign nationals not from these designated countries.

However, we would also recommend caution regarding international travel for any foreign nationals from non-designated countries who traveled, especially recently, to one of the seven designated countries listed in the President’s Executive Order.

Contributed by Charles M. Goldsmith

| Immigrant, Nonimmigrant

Immigration Visa Issues Addressed (Part II)

The U.S. Department of Homeland Security (DHS) published a final rule on November 18, 2016, to assist U.S. employers in hiring and retaining high-skilled foreign workers as well as to protect and increase the ability of these foreign national employees to pursue new employment opportunities.

Many felt this regulation was required based upon the many hurdles both U.S. employers and/or foreign nationals face during the immigration process due to “green card” quota backlogs as well as other restrictions in U.S. immigration laws. This new regulation goes into effect on January 17, 2017.

Here is the part II of an analysis of the key provisions of the New Skilled Workers Regulation.

One provision enacted in the new regulation intends to help alleviate problems faced by some skilled workers who are in the process of applying for “green cards” but their sponsoring employer closes its business or decides to revoke its sponsorship of the foreign national.

The new rule allows a foreign national to retain the priority date of his 1-140 petition if it was approved more than 180 days before the closing of the business or revocation by the employer. The foreign national would still require a new employer to complete the green card sponsorship process, but this priority date retention should cut down on the waiting times for a visa to become available to these affected foreign nationals since their “place in line” will be retained.

Thus, these new regulations may encourage more filings of 1-140 petitions under premium processing since the approval of the 1-140 petition is required to establish and retain the earlier priority date.

This new regulation also reinforces the DHS’s longstanding “green card” portability provisions by creating a standard procedure for portability cases to ensure the USCIS has all required information and documentation in its possession prior to “green card” adjudication.

As with the prior procedure, applicants who have adjustment of status applications pending for more than 180 days may change “green card” sponsors if the proffered positions are the same or similar without starting the “green card” application from scratch (i.e., PERM, 1-140, and 1-485).

However, in order to request portability, a new supplement form “J” has been introduced. While this new Supplement “J” form will not require a separate USCIS filing fee, there are concerns on how long it will take the USCIS to adjudicate these sponsorship changes as well as the Service’s determination that the positions are the “same or similar.” Conversely, there is hope that by standardizing the portability process, quicker and more efficient determinations will be issued.

Another positive change will be the availability of Employment Authorization Documents (EAD’s) for those with approved 1-140 petitions who may not file for adjustment of status based on retrogressions in the immigrant visa quotas.

The catch here is that “compelling circumstances” must be proven along with the unavailability of an immigrant visa number. Although the regulations provide examples of “compelling circumstances,” our concern is that these are discretionary determinations and may not be liberally applied.

If approved, these “compelling circumstance” EAD’s will be issued in one year increments and renewals may be filed six months prior to expiration. “Compelling circumstances” need not be shown if there is less than one year between the priority date and the final action date. Unfortunately this new basis for an EAD is not available to E-1, E-2, F and J visa holders.

There will also now be an automatic extension for timely filed EAD extension applications filed pursuant to the same underlying basis, although this automatic extension will not apply to every EAD category. This change should prove very helpful because, previously, employers would have had to terminate foreign nationals who faced extensions, which were not adjudicated before the expiration date of their previous EAD. The government, however, has abandoned the requirement that EAD applications/extensions be adjudicated within 90 days per the new regulation.

As always, should you have any questions regarding this immigration news update or any immigration concerns in general, please feel free to contact our office to speak with one of our attorneys. We continue to look forward to assisting you.

| Employment Authorization, Immigrant

Nonimmigrant Changes (Part I)

The U.S. Department of Homeland Security (DHS) published a final rule on November 18, 2016, to assist U.S. employers in hiring and retaining high-skilled foreign workers as well as to protect and increase the ability of these foreign national employees to pursue new employment opportunities.

Many felt this regulation was required based upon the many hurdles both U.S. employers and/or foreign nationals face during the immigration process due to “green card” quota backlogs as well as other restrictions in U.S. immigration laws. This new regulation goes into effect on January 17, 2017.

Here is the part I of an analysis of the key provisions of the New Skilled Workers Regulation.

Before discussing some specific provisions which will be most relevant to our corporate clients and the foreign nationals they employ and sponsor for visas and work authorizations, I would like to express once again my belief that there is little likelihood that the benefits of these regulations will not be undone when Mr. Trump takes office a few days after its effective date, January 17th, 2017. Since this is an actual regulation (not just a policy or executive order), it can only be undone by going through the rule making process of the Administrative Procedures Act.  It could also be undone through a Congressional overrule or through actual litigation. These would take time and considering its relative “unimportance” compared to other issues our government will be facing, I am confident these actions will not happen.

1. H-1B Cap Exemption Expanded
Considering the very limited number of H-1B visas allowed each year under “the cap,” these changes might prove very helpful to non-profit entities that have formal written agreements or understandings with an institution of higher education and governmental research organization. Department of Homeland Security is replacing the term “primary purpose” with “fundamental activity” with respect to evaluating the affiliation between a non-profit organization and an institution of higher education or non-profit research organization.

The definition of “governmental research organization” is no longer limited to the federal government; the position must relate only to one fundamental activity of the exempt organization and the sponsored foreign national must be working primarily at the site of the qualifying organization. The only negative consequence in the new rule is the government will no longer defer to a previous approval as to cap exempt status so every filed petition must address this issue.

2. Recapturing of H-1B Time
Whereas the six year limit for H-1B’s does not currently count time spent outside the U.S., the time spent outside the U.S. no longer has to be within six years of the granting of the H-1B. Also changing the previous USCIS rules, the petitioner, when applying for an extension, may now combine remaining time (based on recapturing) with a one or three year extension based on a pending labor certification or approved I-140 petition. However, now, if the immigrant visa is not processed within one year of the visa number becoming available, H-1B extensions under this provision will no longer be available. These indefinite extensions of H-1B status rather than completing the immigrant visa process were sometimes utilized by non-immigrants who wanted to continue employment of their B-1 domestic workers or to bring spouses immediately to the U.S. from overseas. Once a person obtains an immigrant visa these options are no longer available.

For positions requiring licensure where the foreign national cannot get a license due to his/her visa status, petitions for one year are still available as long as the supervisor has the required license. But now greater information about the supervisor is required, including the name, credentials, location, etc.

Perhaps the most significant change will be the new grace period of sixty days granted to E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN holders whose employment is terminated prior to the actual expiration date of their non-immigrant status. If they find another sponsoring employer during this sixty day grace period, they would be eligible “to port” to the new employer and thus not forced to return to their home country to where they would have to make an H-1B visa application.

It also provides a ten day period allowing the foreign national to enter and remain in the U.S. beyond the period of the validity of the petition.

Contributed by Charles M. Goldsmith

| Immigrant, Nonimmigrant

New Regulations for Immigrant Workers

The U.S. Department of Homeland Security (DHS) finally published its new regulation “Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Non-Immigrant Workers” which will take effect on January 17, 2017.

Unlike several of President Obama’s recent executive orders, which many fear will be cancelled or modified once President-Elect Trump takes office, these new regulations will have the effect of actual laws which can only be undone after going through the official rule making process.

The intent of the new rule is “to better enable U.S. employers to sponsor and retain high-skilled non-immigrant workers and provide greater stability and job flexibility for those workers.”

Since many of the sections of this rule merely restate existing USCIS policies as provided in their memos, policy guidances, and advisory opinions, we’re focusing this bullet-point presentation on several of the key changes which will impact our corporate clients and the foreign nationals they employ and sponsor for U.S. visas.

  • A new form I-485J will be used by employers sponsoring foreign nationals who are already in the final stages of “green card” sponsorship through a previous employer. The approval of this petition is contingent on several factors, including the new employer proving the positions are “similar”.
  • Employment Authorization Documents (EAD’s) for foreign nationals (FN’s) (and their families) who have approved employer-based immigrant petitions, provided that they can demonstrate compelling reasons for EAD issuances.
  • Automatic extension of EAD’s for up to 180 days if the renewal application is timely filed and based on the same employment authorization category as the existing EAD. This extension is available to adjustment of status applicants, and STEM graduates seeking additional extensions of OPT (does not apply to applications by H-4, L-2 or E non-immigrant spouses). EAD renewals can now be filed 180 days prior to expiration.
  • Discretionary 60 day grace period for those employed in E-1, E-2, E-3, H-1B, H1B1, L-1, O-1 and TN status for FN’s terminated prior to their visa expiration validity date. Change of status and extension approvals permitted if filed within the grace period.  Also extends the 10 day grace period to E, H, L, and O nonimmigrants.
  • Validity of I-140 petitions submitted by another employer will no longer be automatically terminated by the revocation or withdrawal by the previous sponsoring employer or the termination of the employer’s business if 180 days have elapsed since the I-140 approval or if the I-485 application has been pending for 180 days.
  • Barring a finding of fraud or “material error” by the Service, the foreign worker retains the priority date once the petition is approved for all subsequently filed I-140’s.
  • Expansion of definition of entities and organizations exempt from the H-1B cap.

Please do not rely on this summary as legal advice, as it is not intended as such.
We intend to provide more detailed analyses and guidance as we learn more prior to the January 17, 2017 effective date.

| Employment Authorization, Immigrant, Nonimmigrant

Are you a Grandfathered Alien?

Immigration attorneys face a common problem: there are countless times when a client comes to your office seeking assistance and there is simply nothing that can be done for an individual or family under our U.S. immigration laws. Often this ineligibility is due to a foreign national lacking Section 245(i) protection under the Immigration and Nationality Act (INA). Generally speaking, Section 245(i) of the INA allows an otherwise inadmissible alien having an immediately available immigrant visa to apply for adjustment of status (a “green card”) in the United States, even if that alien entered the U.S. without inspection (EWI) in violation of INA Section 245(a), or is barred by Section 245(c).

To be considered a grandfathered alien, a foreign national must satisfy the requirements pursuant to 8 CFR 245.10. It is very easy for the principal alien beneficiary of a qualifying immigrant petition or application for labor certification to know whether he or she is protected under the grandfathering regulations and is thus eligible for Section 245(i) adjustment of status.

What I often see in my everyday practice, however, is that many individuals who were not the principal beneficiaries of qualifying petitions or labor certification applications do not realize that they also possess Section 245(i) protection as well.

Section 245(i) defines the term “beneficiary” to include a spouse or child “eligible to receive a visa under Section 203(d) of the Act.” In turn, this statute opens up the pool of qualified 245(i) applicants to certain derivative spouses and children and not just the primary alien beneficiaries of a particular case.

For example, say your husband’s employer filed a labor certification application in his behalf prior to April 30, 2001 and all other requirements for a grandfathered application has been met (i.e. approvable when filed, etc.). If you were married prior to the filing of this application, you are also considered a grandfathered alien and can apply for adjustment of status under any proper basis. This grandfathering protection remains even if you have since divorced your spouse.

Another example when Section 245(i) grandfathering exists is where your aunt, a U.S. citizen, filed a family based petition for your mother prior to you turning 21 years of age and provided you were unmarried at the time of filing. Under this scenario, if all other grandfathering requirements have been met, you should be a grandfathered alien and eligible to apply for a green card in the U.S. pursuant to Section 245(i).

It is very important when speaking to an immigration attorney that you are not only aware of your immigration history but are aware of your entire family’s immigration background as well. You will not believe how many times we encounter individuals who do not realize they have this Section 245(i) protection and are ready to give up on the entire immigration process only to learn that an old petition or application filed in behalf of their spouse or parent can save the day for them.

Contributed by Brian S. Weiss

| Immigrant

Faster Labor Certification Adjudications

Recently, it appears that the adjudicatory processing times for labor certification applications (also referred to as PERM applications) filed with the U.S. Department of Labor has decreased significantly.

As a reminder, this labor certification process is used by employers to sponsor foreign national employees for a green card by testing the American workforce to determine if there is a qualified American worker in the area of intended employment ready, willing, and able to perform the proffered position.

This trend, combined with positive developments regarding quotas for many of the employment-based immigrant visa categories (most notably EB-3), has resulted in the potential for sponsored employees to receive the benefits of the green card process much quicker.

Besides ultimate green card attainment, these benefits include the potential for three-year extensions of an H-1B visa beyond the maximum  six-year H-1B limit, if eligible, as well as the potential of avoiding the dreaded H-1B lottery should a foreign national employee be able to obtain a green card or a work authorization document (EAD).

Please feel free to contact us should you wish to discuss utilizing the green card sponsorship process as an alternative to the H-1B lottery system.

| Immigrant, ビザ申請手続き