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Immigration View

Navigating Complex U.S. Immigration Laws

No Foolin’ – H-1B Visa Shortage a Serious Impediment to Local Hiring

Posted in General Immigration News and Updates, H-1B Temporary Workers, Immigrant Visas, Uncategorized

Every April Fool’s Day, we play tricks on one another, good natured fun with hoaxes usually followed by a cry of “April fool!” and a good hearty laugh.

Consider that you run a for profit business that is constantly looking for talent and are seeking to keep certain foreign nationals who have proven that they have just the right type of skill to perform a specialty role in your organization.

If your business is in Pittsburgh where there are thousands of students studying, researching and creating at some of the world’s top universities, you might think you have your pick from a wide range of recent graduates, some of whom may be foreign nationals.

What a foolish notion.

You likely may not know that the foreign national came to the United States on a student visa known as the F-1, and is authorized to work for you for only a limited period of time on what is known as “Optional Practical Training” or “OPT.”  OPT is usually good for one year, but for certain students in science, technology, engineering and mathematics (STEM) fields working for employers using E-Verify (the government’s employment eligibility system), the OPT can be extended for 17 months.  Usually, if working out well during OPT employment, he or she would be a “keeper,” for whom another visa is required.

To extend that employee’s employment eligibility beyond OPT, you would have to file for another visa known as the H-1B.  It’s great for employers needing workers with at least a bachelor’s level of education. You must offer and pay a “prevailing wage” as determined by the Department of Labor.

Other requirements include a $325 visa fee, $500 anti-fraud fee, $1,500 training fee (employers of fewer than 25 workers pay $750) and maybe even legal fees.

Lots of employers know the benefits of the H-1B visa and that it’s one of the only ways to secure new professional level talent. Of course, there are other possible non-immigrant visa routes, known in government-speak as “TN,” and “E-3” and “O-1,” but these have limited applications.  Moreover, there always is a limited supply of H-1B’s.

Each fiscal year, the government issues no more than 85,000 H-1B visas. While employers may file on April 1 for an H-1B visa beginning October 1, even if filing right away, it’s likely the supply will run out, and you’d be out of luck.

In 2014, as with the last two years, demand far exceeded supply. The government received more than 172,000 applications in just the first five business days of April 2014, and the window shut abruptly. Anyone not applying was left out.  Even if the application is technically correct and timely filed, even more luck is needed to get the visa.

These applications properly and timely filed and received by the government will be subjected to a 50-50-like lottery, which will allow about half of the applicants to receive an H-1B visa and remain in your employ.

For those who are not lucky: “April fool!”  You’ll get your filing fees back, but you won’t get to keep your employee any longer.

The joke will be on the worker as well. Regardless of how talented, educated and effective the foreign national may be in your company, she or he will have to find a way to stay in the U.S. legally or may need to leave the country altogether – while your skilled position becomes open again.

This is quite a foolish game to play. It’s also the current law, sad to say, with no changes planned in the foreseeable future.

FY 2015 H-1B Cap: What are the Odds?

Posted in H-1B Temporary Workers

The U.S. Citizenship and Immigration Services (USCIS) announced that on April 7th it received more than enough H-1B petitions to reach both the “regular” cap of 65,000 visas and the advanced-degree cap of 20,000 for fiscal year 2015 (FY 2015).

USCIS reported that it received about 172,500 FY 2015 cap-subject H-1B petitions.  So, what are the odds that your petition will receive a number under the FY 2015 H-1B cap?  Simple math shows that your chances are about 50/50.  The odds would be slightly better if your petition was for an advanced-degree professional because advanced-degree cap petitions which weren’t selected to count against the 20,000 advance-degree cap were included in the selection process for the regular cap.  In reality, the odds could be better or worse.  Without knowing how many of the 172,500 petitions were advanced-degree cap cases, the calculations can’t be refined.  We do know that after 20,000 advanced-degree petitions were counted, there were approximately 152,500 cap-subject H-1B petitions remaining for only 65,000 spots.  This means that about 43% of those remaining petitions would have been chosen for processing. 

The computer-generated random selection process (aka lottery) has been completed.  Electronic receipts are being received for premium processing cap cases. Presumably paper receipts for non-premium processing cap cases will begin to arrive in next week’s mail. 

USCIS stated that it will reject and return (with the unused filing fees) cap-subject petitions which were not randomly selected, that is, unless a petition is found to be a duplicate filing.

The wait should be over soon.

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Catherine Wadhwani is a partner in the Immigration Practice of Fox Rothschild LLP.  She can be reached at cwadhwani@foxrothschild.com.

H-1B Visa Cap: USCIS received 172,500 Petitions; Random Selection/Lottery Complete

Posted in H-1B Temporary Workers

USCIS has announced that it received approximately 172,500 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption.  On April 10, 2014, USCIS completed its computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced degree exemption.  For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.  See USCIS’ Announcement here.

USCIS will begin the process of issuing receipt notices for those petitions accepted for processing and returning the complete filings of those petitions rejected/not selected.  Until the receipt notice or rejection package received by the attorney or petitioning employer, it is not possible to know whether any particular application has, in fact, been accepted for processing.  Given the volume of cases USCIS has to process, it is reasonable to expect that it will take at least several weeks to be fully completed/all packages or receipts to arrive at their destinations.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

USCIS Reaches FY 2015 H-1B Cap – Time is up!

Posted in General Immigration News and Updates, H-1B Temporary Workers

USCIS announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015, including more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.   Today was the last day USCIS would accept H-1B petitions subject to the FY 2015 cap (including the advanced degree exemption).  See USCIS’ Announcement here.

Before running the computer-generated process which will randomly select those petitions to be accepted for processing , USCIS must complete initial intake for all filings received during the filing period (April 1 – 7, 2014).  Due to the high number of petitions, USCIS is not yet able to announce the date on which it will conduct the random selection process.

After the random selection process is complete, USCIS will reject and return the filing, with fees, for all cap-subject petitions that are not selected, unless found to be a duplicate filing.  Until this process is complete, it is not possible to know whether any particular application has, in fact, been accepted for processing.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

FY 2015 H-1B Cap Season…What Happens Now?

Posted in H-1B Temporary Workers

Your H-1B petition is now in the hands of the US Citizenship and Immigration Service (USCIS).  We have confirmation that your petition was delivered and you breathe a sigh of relief.  But what should you expect now that your petition is at the Service Center? When will you know whether your petition will receive a number under the FY 2015 cap?

Initially, USCIS will use the information from the H-1B Data Collection and Filing Fee Exemption Supplement to determine which petitions should be counted against the “regular” (bachelor’s or equivalent) cap and which should be counted toward the master’s or higher degree cap.  For FY 2015, there are 58,200 H-1B spots (65,000 – 6,800 spots set aside for Chile and Singapore) in the regular cap and 20,000 spots in the master’s+ cap.  When the 20,000 master’s+ cap limit is reached, the additional master’s+ cap cases will be grouped in with the regular cap cases. 

 USCIS has a page on its website to provide periodic updates regarding the number of cases received under each of the caps.

 When can you except a decision on your H-1B cap petition?

 If premium processing was requested…

 Premium processing is available for an H-1B petition.  A premium processing request requires an additional government filing fee, normally in exchange for processing (i.e., rendering of a decision or a request for additional evidence) of the H-1B petition within 15 days from the date of receipt by USCIS.  Due to the anticipated high volume of cap-subject H-1B petitions during the first week of April, USCIS has “temporarily adjusted its current premium processing practice” and is allowing itself until April 28th to begin premium processing of H-1B cap cases.  If premium processing begins on April 28th, decisions should begin to issue no later than May 12th.

USCIS took the same approach last fiscal year with a delayed start to the premium processing clock for H-1B cap cases.  This is a reasonable accommodation. The delayed premium processing start date will provide USCIS with time to accept the high volume of filings, check for correct filing fees, group and count the cases against the regular and master’s+ caps, conduct the lottery to choose petitions that will receive one of FY 2015 H-1B cap numbers, and prepare the selected petitions for processing.

 Note that USCIS has stated that it will continue to honor the 15-day processing clock from the date of H-1B petition receipt for non-cap H-1B cases, as well as for other types of cases that are eligible for premium processing.

 If premium processing was not requested….

While the “normal” processing time for an H-1B petition has recently been reported at about 2 months by each of the two Service Centers , due to the high volume of H-1B cap cases, as with last year, decisions will likely continue to be rendered well after the standard 2-month processing time.

 If premium processing was not requested, but I want to request it now….

If you didn’t request premium processing, but are reconsidering your decision, we can file paperwork to request an upgrade as soon as we have the I-797 receipt notice for your H-1B petition.  This can be done at any time and may be necessary, for example, in cases where a driver’s license extension is needed.

 In the meantime, we will have to await updates from USCIS.  At this point, mid-May seems very far away.

 

H-1B Cap Subject Visas: MUST FILE BETWEEN APRIL 1 & 7; PP Tolled until ~4/28/14

Posted in General Immigration News and Updates, H-1B Temporary Workers, Uncategorized

As many are aware, the filing period for H-1B petitions subject to the fiscal year 2015 numerical cap begins in less than one week, on April 1, 2014. United States Citizenship and Immigration Services (USCIS) currently reports again this year that it anticipates receipt of more than the allotted quota of 65,000 cap-subject H-1B petitions (including more than 20,000 petitions filed on behalf of individuals with a U.S. master’s degree or higher). This means that the H-1B cap will most likely be met in the first five business days of the filing season, between April 1 and April 7, 2014. In short, if you are looking for a shot at an H-1B visa this coming year, your properly completed, signed and supported petition must be received at USCIS no later than April 7, 2014.

There are only a limited number of new H-1B visas available each year (65,000 total), and the next allotment becomes available when the federal government’s fiscal year begins on October 1, 2014. An employer may file an H-1B petition as early as six months in advance of the anticipated start date, which means that an employer may file an H-1B petition for a cap-subject worker as early as April1, 2014.

Under the current law, if more than enough petitions are filed to reach the numerical limit (as expected), USCIS will include all petitions filed in the first five business days in the random selection process to choose those petitions that will be accepted for processing. This means that the window for filing is anticipated to close on the fifth business day of April (April 7, 2014). USCIS will then run a random selection process to choose those petitions that will be accepted for processing, rejecting those petitions not selected.  It will first conduct the selection process for the 20,000 allotted U.S. master’s/advance degreed petitions, and then will include any advanced degree petitions not selected in the second random selection process for the remainder to meet the 65,000 limit. Last year, USCIS received approximately 124,000 H-1B petitions during the first five business day of April.

H-1B petitions may be filed under the USCIS’ expedited processing service called “premium processing.” However, in anticipation of a high number of premium processing filings and in order to facilitate the prioritized intake of these petitions, USCIS has temporarily adjusted its current premium processing practice. Now, premium processing on H-1B cap subject petitions will begin no later than April 28, 2014 (instead of immediately upon filing).

Petitioners may request premium processing at the time of filing and are also able to upgrade a pending H-1B cap petition to premium processing after a receipt notice is issued, per usual procedures, although the service will remain, technically, unavailable until April 28, 2014. Note that theForm I-797 receipt notice may indicate the date that the premium processing fee is received, but the 15-day processing period set by 8 CFR 103.7(e)(2) will not begin, at the latest, until April 28, 2014.

Remember that irrespective of when an H-1B cap subject petition is filed, if/when the application is approved, the employment start date of the visa will not be earlier than October 1, 2014. In some circumstances, the filing of an H-1B cap subject petition can extend certain employees’ status and work authorization to enable them to bridge a common gap between when work authorizing documents issued to recent graduates expire in the spring or early summer until the effective date of the H-1B visa on October 1.

If you have an employee who requires an H-1B petition in order to remain employed, please contact Fox Rothschild immediately.  It MAY still be possible to prepare and file a petition before the window for filing closes, but this opportunity diminishes with each passing hour.

If Fox Rothschild is assisting you with the filing of an H-1B petition subject to the cap, we will automatically notify you upon the filing of the petition and upon its acceptance for processing (i.e., selection in the lottery) or rejection.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Trends in USCIS Processing of L-1B Petitions

Posted in Intrcompany Transferees (L-1 and Permanent Residence), Start-Up Companies, Uncategorized

Analysis of new data obtained from U.S. Citizenship and Immigration Services (“USCIS”) reveals a dramatic increase in the number of L-1B Non Immigrant visa petitions filed, approved and denied, as well as the number of Requests for Evidence (“RFEs”) issued by the two Service Centers responsible for processing L-1 petitions, the California Service Center (“CSC”) and the Vermont Service Center (“VSC”). This data was released in response to a Freedom of Information request filed by the American Immigration Law Association (“AILA”).

As you can see from the chart below, the data reveals an increase in L-1B denial from 27% in FY2011 to 30% in FY2012 and 34% in FY2013.  These rates mark a distinct trend in steep increases from prior years:  7% in 2007, 22% in 2008, 26% in 2009, and 22% in 2010, despite the fact that there has been no change in the law or regulations related to L-1B visa.

L-1B Chart

The information indicates that USCIS has clearly changed its internal standard for adjudicating L-1B petitions and further, that there may be different internal standards at each of the Service Centers, given the higher number of RFEs and denials from the CSC.

The L-1B visa classification is available to key employees, with specialized knowledge, of multinational companies (called “intracompany transferees”). The L-1B visa requires that the employee has been employed abroad for one full year during the preceding three years by a foreign entity related to the U.S. company as a parent, branch, subsidiary or affiliate who has acquired specialized knowledge of the company’s business, operations, services and/or products.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

Is Your H-1B Extension Petition Subject to the Cap?

Posted in H-1B Temporary Workers

You’re a Human Resources guru.  A few years ago, your employer petitioned for H-1B status for a foreign student.  The H-1B employee is working out really well and is in the middle of a project that is critical to the company.  You just became aware that the employee’s H-1B status expires on September 30th of this year.  Of late, you’ve been hearing a lot of news about the H-1B cap and the need to file H-1B petitions on or about April 1st for an October 1st start date.  The H-1B employee is concerned and you aren’t really sure whether all the urgency relating to the April 1st filing target applies to your company.  The dates seem to match up with what everyone is talking about, but does this need attention right away?  Is your company subject to the H-1B cap?  Is the employee subject to the cap?  What exactly does that mean…to be “cap subject”?  Could you lose the worker?

Of course, the first thing you’ll want to do is call your friendly immigration attorney for advice.  But, here are a few points to keep in mind: 

  • Within each federal government fiscal year (10/1 to 9/30), there is a limit on the number of certain H-1B petitions that USCIS may approve.  For the coming fiscal year, the limit is 65,000 with an additional 20,000 for petitions involving a master or higher degree. There are also separate numbers for citizens of Chile and Singapore.
  • Some H-1B petitions count against this annual fiscal year limit or “cap” and some do not.
  • Those which USCIS counts against the cap are of course referred to as “ cap subject”.  Those which are not counted against the H-1B cap are typically referred to as “ cap exempt”.
  • An exemption to the H-1B cap can apply to a petitioning employer or to an employee. 
  • A good place to find a summary of the exemptions is on the H-1B petition form.  Like most legal concepts, the exemptions are of course subject to interpretation.
  • When the exepcted or actual demand for H-1B workers exceeds the total number of H-1B petitions that can be approved in a given fiscal year, there is an urgency to filing a cap-subject H-1B petition within a prescribed time period or as early as possible beginning on April 1st (depending on how USCIS decides to manage the anticipated over-abundance of H-1B petitions in a given year).
  • An H-1B petitioning employer that is cap-exempt may file an H-1B petition at any time of the year, whether for a new employee or to extend the H-1B classification of a current employee.
  • A foreign national who is exempt from the H-1B cap may be sponsored at any time of the year.
  • Those who do not qualify for an exemption are the ones who must be mindful of the highly sensitive timings.

The H-1B cap-subject/cap-exemption analysis can be complex.  Rather than guess, if you have questions about the H-1B cap, now is a good time to seek resolution, figure out a strategy with your immigration attorney, and move forward.

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Ms. Wadhwani is a partner in the Immigration Group at Fox Rothschild LLP.  She may be reached at cwadhwani@foxrothschild.com.

 

Mexican TN Visa – New procedures streamline processing

Posted in General Immigration News and Updates, Non-Immigrant Visas (other than Es, Ls and H-1B)

Effective February 10, 2014, Mexican TN visa applicants will no longer be required to obtain approval from the United States Citizenship and Immigration Services (“USCIS”) prior to applying for a TN visa at a US Consulate pursuant to a final rule issued by the Department of State (“DOS”) amending its regulation to the North American Free Trade Agreement (NAFTA).

The TN nonimmigrant classification permits qualified Canadian and Mexican citizens
to seek temporary entry into the United States to “engage in activities at a
professional level” pursuant to NAFTA.   The regulations specify various categories of
professions that are identified in a list of 63 professions.

In order to qualify for TN status as designated by this category, the applicant must:  (1) have a job/job offer in the United States, (2) work one of the occupations/professions listed and; (3) have the specified requirements (either a bachelor’s or licenciatura degree, as appropriate, in the field (or in a closely related field) OR experience plus a two-year post-secondary degree.)

Canadians have long enjoyed the privilege of applying for admission to the United States pursuant to the TN at the border/port of entry, without the need for first obtaining a petition approval from USCIS or a visa stamp from a US Consulate abroad.

Mexican nationals, however, have been required to obtain a petition approval from USCIS prior to being permitted to apply for a visa stamp from a US Consulate abroad, adding time and complexity to the process.  Now, Mexican nationals coming to the United States pursuant to the TN may enjoy the ability to apply directly to US embassy/consulate abroad for a visa stamp in their passports.  The Consulate will make the determination as to eligibility and issue a TN visa stamp directly to the applicant, shortening and simplifying the overall processing time considerably.  Once in possession of a valid visa stamp, the Mexican national may enter the US as a TN.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP.  Alka is situated in Fox Rothschild’s Roseland, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

 

New Form for Naturalization

Posted in General Immigration News and Updates, Uncategorized

Some things don’t change, others do.  The debate rages over immigration reform.  Speaker of the House John Boehner expressed doubt today that immigration reform will happen in 2014.  This has been going back and forth for years…

Something new: a new form for application to naturalize to US citizenship.  USCIS announced on February 4th the introduction of a new N-400 form.  The current form will be valid for 90 days, but after May 5th the new version of the N-400 application must be used to apply for US citizenship.  The new form is longer (21 pages) , but has clearer instructions.  It asks more questions about the applicant’s family, about good moral character, about security related topics.  The form may be filed electronically , but the filing must be followed by the completed paper form with the required supporting documents and fee.   The form is new but the substantive requirements for naturalization eligibility remain the same.  The basic requirements are that the applicant must be 18 years of age or older and have been a permanent resident for 5 years.  If the permanent resident is married to a US citizen for 3 years and continues to live with that spouse in “marital union”, then the eligibility period is 3 years.  Half of the time, whether 5  or 3 years,  the applicant must have been physically in the US.  The applicant must be a person of good moral character, must be able to read write and speak basic English, must pass the Naturalization Exam and be willing to take the Oath of Allegiance to the United States.  There are other requirements, exceptions , waivers and subtleties —and a fee in the amount of $680.  USCIS has extensive materials about naturalization on line at www.uscis.gov/n-400.

Hopefully,  despite its length, the new N-400 Naturalization form will make the process more inviting so that more people can pursue naturalization, then vote and then, with enough new voters, maybe we will have immigration reform.