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Immigration View

Navigating Complex U.S. Immigration Laws

H-1B Cap Premium Processing Clock Will Start on April 27, 2015

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

The U.S. Citizenship and Immigration Services (USCIS) confirmed yesterday, April 14, 2015, that it will officially begin premium processing for H-1B cap cases on April 27, 2015.  Normally, USCIS guarantees a 15 calendar-day processing time from the date of receipt, however, due to the historic premium processing receipt level combined with the high volume of H-1B cap petitions received in the filing season, USCIS has temporarily adjusted its premium processing practice.  For H-1B cap cases, including the regular cap petitions and advanced degree exempt petitions, the premium processing clock will start on April 27, 2015 regardless of the date of receipt.  For those cases that are not subject to the H-1B cap, the premium process clock will begin from the date of receipt, in accordance with USCIS’ normal procedures.

USCIS received 233,000 H-1B Cap Subject Petitions; Random Selection/Lottery Complete

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

USCIS has announced that it received a record-breaking 233,000 H-1B petitions during the filing period, including petitions filed for the advanced degree exemption. On April 13, 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. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing. See USCIS’ Announcement here.

The agency conducted the selection process for the advanced degree exemption first. All unselected advanced degree petitions then became part of the random selection process for the 65,000 limit.

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.

As previously announced by USCIS, it will begin the premium processing for H-1B cap cases no later than May 11, 2015. Employers and attorneys will still have to wait for some time before knowing if any particular case has been selected for processing.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will also not be counted towards the congressionally mandated FY 2016 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

___________________________

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.

Employers Must Review Originals: I-9 Compliance

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates

We tend to refer to the I-9 as the most complicated government issued 2-page form.  Employers often have good intentions when onboarding new employees and engaging in the I-9 process, but as a recent decision demonstrates, that’s not always enough to protect against penalties.

We often receive a particular question about how to complete the Form I-9 for employees working in remote locations.  Specifically, situations where there may be only one or two employees working in a certain geographical territory, and the company’s headquarters/HR department is stationed somewhere hundreds or thousands of miles away. “How do I verify their I-9 documents within 3-days of employment…can they fax me a copy?”  As we have been advising, and as a recent situation confirms, reviewing photocopies, or anything less than the actual original document, is NOT the answer.

U.S. v. Employer Solutions Staffing Group II, LLC involved a situation where ICE alleged that the employer failed to ensure that 242 employees properly completed section 1 of the I-9 and/or that the employer itself failed to properly complete sections 2 or 3 of their forms.

Section 2 of the I-9 form contains an attestation section stating, I attest under penalty of perjury, that I have examined the document(s) presented by the above-named employee, that the above-listed document(s) appear to be genuine and relate to the employee named, that the employee began employment on _______ and that to the best of my knowledge the employee is authorized to work in the United States.

Instead, however, the entity signing the attestation section was only reviewing photocopies of the documents, because the employees were located over 1,000 miles away.   ICE argued that nothing in the statute or regulations proves a basis for examining copies in lieu of original documents, and that 8 C.F.R. § 274a.2(b)(1)(v) (emphasis added) expressly provides that “[t]he individual may present either an original document which establishes both employment authorization and identity, or an original document which establishes employment authorization and a separate original document which establishes identity.”

So, this confirms it and eviscerates any doubt that reviewing photocopies, faxed copies, or anything BUT originals, is not acceptable.  Employer should carefully review their onboarding policies with respect to I-9s to ensure compliance with this recent decision and the regulations.

FY 2016 H-1B Cap Reached as of April 7, 2015

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

The H-1B cap for Fiscal Year 2016 (FY 2016) has been reached.  The US Citizenship and Immigration Service (USCIS) made the announcement today.  (http://www.uscis.gov/news/news-releases/uscis-reaches-fy-2016-h-1b-cap)

  • After initial intake, at a date which is to be determined, USCIS will first “randomly select petitions for the advanced degree exemption” of 20,000.
  • Advanced-degree exemption petitions not selected within the 20,000 limit will be added to the selection process for the 65,000 general H-1B petition limit for the fiscal year.
  • USCIS will “reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings”.

Of course, cap-exempt H-1B petitions may continue to be filed as usual.

______________________

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

 

 

If you think you don’t have an I-94 record, you’re wrong!

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, H-1B Temporary Workers, Intrcompany Transferees (L-1 and Permanent Residence), Investors, Traders and Entrepreneurs (E visas and Permanent Residence), Non-Immigrant Visas (other than Es, Ls and H-1B)

In the spring of 2013, Customs and Border Protection changed its procedures and implemented an automated process for generating I-94 admission records electronically. As such, foreign visitors to the U.S. arriving via air or sea no longer need to complete paper Customs and Border Protection Form I-94 Arrival/Departure Record or Form I-94W Nonimmigrant Visa Waiver Arrival/Departure Record (for those using visa waiver/ESTA).

This not, however, relieve foreign nationals from their obligation to present documents evidencing their status in the U.S.   Proof of status may be needed by employers, schools/universities or government agencies.  Accordingly, foreign visitors MUST access their CBP arrival/departure record information online to retrieve a paper print out.

We recommend that all foreign travelers access their electronic I-94 records by visiting www.cbp.gov/I94 and printing a hard copy of the record as soon as possible upon your arrival into the U.S. This is now the only mechanism by which foreign nationals can retrieve I-94 record information, if no paper I-94 card was issued into the passport upon arrival into the U.S.

It is important that foreign nationals retrieve and review their I-94 record as soon as possible after entry to verify that the record reflect the correct visa status and expiration date.   The I-94 record controls the term and length of admission to the U.S. so accuracy in the record is critical to every foreign national’s status in the United States.

In generating the electronic I-94 record, CBP converts travelers’ arrival/departure information automatically from their electronic travel records. This means that, by and large, the information imported into the I-94 records system is information entered by hand by airline personnel (not government officials).  As such, it is imperative that you are precise when providing your information to the airline and vigilant with regard to managing flights (if you fail to cancel a booked flight without enough notice, it could cause an incorrect record to be generated indicating a departure, which will then have to be corrected.)

CBP continues to issue a paper form I-94 at land border ports of entry.

Information from CBP on the I-94 Process:

Upon arrival, a CBP officer stamps the travel document of each arriving non-immigrant traveler with the admission date, the class of admission, and the date that the traveler is admitted until. If a traveler would like a paper Form I-94, one can be requested during the inspection process. All requests will be accommodated in a secondary setting.

Upon exiting the U.S., travelers previously issued a paper Form I-94 should surrender it to the commercial carrier or to CBP upon departure. Otherwise, CBP will record the departure electronically via manifest information provided by the carrier or by CBP.

This automation streamlines the entry process for travelers, facilitates security and reduces federal costs. CBP estimates that the automated process will save the agency $15.5 million a year.

For more information and for answers to frequently asked questions, see the I-94 Fact Sheet.

The CBP INFO Center offers questions and answers for I-94.

 

Happy travels!

___________________________

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 2016 H-1B Cap: Too Late or Last Call Before the Deadline?

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

The US Citizenship and Immigration Service (USCIS) recently provided information to confirm that it will accept cap-subject H-1B petitions for Fiscal Year 2016 (FY 2016) during the first 5 business days of April, that is Wednesday, April 1st through Tuesday, April 7th, 2015.

With the first week of April being a “split week” and April 1st landing on a Wednesday, this of course means that there is a weekend in between, and a little more time. Is this a guarantee that you can still file an H-1B petition that will be received by USCIS before the deadline?  No.

There are many things that must be done before an H-1B petition is ready to be filed.  For example, generally, the US Department of Labor (DOL) takes 7 working days to process an ETA 9035 Labor Condition Application (LCA).  The LCA is an essential part of an H-1B petition.  Conceivably (but not necessarily advisably), one could still file an LCA and have it returned in time to meet the H-1B cap deadline.  You should be aware, however, that we have heard of situations where DOL has taken more than 7 working days to process some LCAs at this time.  Clearly, one shouldn’t push the limit by filing an LCA at the last minute if it can be avoided.  This is the last minute.

Nevertheless, if you have a late hire or perhaps decide to move forward with H-1B sponsorship for an existing employee such as one working with an F-1 Optional Practical Training Employment Authorization Document (OPT EAD), there is still a little time (precious little) and you should of course know that the risk of not meeting the FY 2016 H-1B cap deadline increases with every day that passes.

This is just about the last call…

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

L-1B Petitioners Beware!

Posted in General Immigration News and Updates, Intrcompany Transferees (L-1 and Permanent Residence)

There was a time, FY 2006, when 92% of all L-1B Specialized Knowledge visa petitions were approved. 

 In FY 2014, the L-1B approval rate is down to 65%. 

 A study published by the National Foundation for American Policy cites the chilling USCIS statistics as to the adjudication of L-1B applications over the course of time—material changes in the numbers are reported, with no regulatory change.

 The L-1 visa status is for intra-company transferees, individuals who are being transferred from a company’s affiliate, branch, subsidiary or parent overseas to the US to perform executive, managerial or “specialized knowledge” work in the US.  The L-1A is for transferred executives or managers; the L-1B is for those with “specialized knowledge”.  The NFAP report focuses on L-1B visa petitions, but that does not mean that L-1A applications have not suffered from similar trends.  

 Based on data from the US Citizenship and Immigration Service (USCIS), the report’s revelations include:

 * USCIS L-1B denial rates are higher for specialized knowledge employees who are already in the US and seeking to extend their status (41% in FY14) than for  initial L-1B petitions (32 %).

* The denial rate for Indian nationals was 56% for FY2012-14, as compared to Canadian nationals who were denied at a rate of only 4% during the same time period.

*The rate of issuance of Requests for Evidence (RFEs) in FY 2014 was 45%, as compared with only 2% in FY 2004.

 As to the RFEs, AILA’s Bob Deasy is quoted as follows:  “What is most concerning is that RFE and denial templates and rationales are developed behind the scenes in a policy vacuum; moreover, hyper-exacting evidentiary and documentary demands made by USCIS undermine the principle of ‘totality of the evidence’ and the preponderance of the evidence standard.

 The report concludes: ”The significant increase in denial rates and requests for evidence in recent years illustrates that USCIS adjudicators have made it difficult for companies to transfer their own employees within a company to work in America.  In a highly competitive global marketplace, the consequence is that companies become more likely to move out of the United States-or to invest in America in the first place-to avoid the difficulties of the U.S. immigration system.”      

 Transfer with caution!

 __________________

Robert S. Whitehill is the Chair of the Immigration Practice Group at Fox Rothschild LLP.  He may be reached at rwhitehill@foxrothschild.com.

 

H-1B Cap Subject Visas: MUST FILE BETWEEN APRIL 1 & 7; PP Tolled until ~5/11/2015

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

As many are aware, the filing period for H-1B petitions subject to the fiscal year 2016 numerical cap begins in about two weeks, on April 1, 2015.  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 again be met in the first five business days of April.  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 between April 1 and April 7, 2015.

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, 2015. 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 April 1, 2015.

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, 2015).  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. Premium processing for H-1B cap subject petitions will begin no later than May 11, 2015 (instead of immediately upon filing).

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, 2015. 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.

___________________________

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.

FY2016 H-1B Cap: USCIS Issues Helpful Information

Posted in Consular Issues, General Immigration News and Updates, H-1B Temporary Workers, Startup Companies

You’ve likely been flooded with information regarding H-1B season from multiple sources.  Yesterday, the US Citizenship and Immigration Service (USCIS) issued its own information(http://www.uscis.gov/news/uscis-will-accept-h-1b-petitions-fiscal-year-2016-beginning-april-1-2015) regarding Fiscal Year 2016 (FY 2016) H-1B petitions.

Here is a summary:

  • USCIS will accept cap-subject FY 2016 H-1B petitions beginning April 1, 2015.
  • The FY 2016 H-1B cap remains at 65,000. The first 20,000 cap-subject H-1B petitions for those with a US master or higher degree do not count toward the 65,000 cap.
  • USCIS anticipates receiving more than 65,000 cap-subject H-1B petitions during the first 5 business days of April 2015. If this happens, USCIS will again use a lottery to randomly select sufficient petitions to meet the cap.
  • USCIS will issue a notice to the public when the FY 2016 H-1B cap has been met.
  • Unselected cap-subject petitions and petitions received after the cap has closed will be rejected.
  • Cases will be deemed accepted on the date when USCIS “takes possession of a properly filed petition with the correct fee.”
  • Petitioners are reminded to follow regulatory requirements, which should help with avoiding delays and requests for evidence (RFEs).
  • Due to the anticipated high volume of FY 2016 cap-subject H-1B petitions and to allow time to prioritize data entry, the 15-day premium processing clock will not begin on receipt of a petition. Instead, USCIS states that for FY 2016 cap-subject H-1B petitions, premium processing will begin no later than May 11, 2015.
  • USCIS will provide” H-1B Cap Season email updates” for which you can subscribe on the H-1B 2016 Cap Season Web Page, which can be found at http://www.uscis.gov/working-united-states/temporary-workers/h-1b-specialty-occupations-and-fashion-models/h-1b-fiscal-year-fy-2016-cap-season.

Happy H-1B season.

_____________________

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

DHS Shutdown Avoided

Posted in General Immigration News and Updates, Immigration Accountability Executive Action (Obama 2014)

The Department of Homeland Security (“DHS”) is the parent agency of several sub-agencies including U.S. Citizenship and Immigration Services (“USCIS”); U.S. Customs and Border Protection (“CBP”) and U.S. Immigration and Customs Enforcement (“ICE”).   These agencies are tasked with all of immigration-related affairs.  In December 2014,  DHS was the only agency that did not receive full-year funding in the federal spending bill, in the midst of the dispute over Obama’s executive actions related to immigration form.

DHS and its sub-agencies were facing a shutdown if a funding bill was not passed.  Fortunately, earlier this week, the U.S. House of Representatives passed a weeklong funding measure after the Senate passed a bill funding DHS through 2015.

Then last week, the House approved a 9 month funding bill for DHS, passing 257-167 (182 Democrats & 75 Republicans) which successfully beat the midnight Friday deadline for DHS funding to expire.

Those who voted against the funding did so in large part due to the lack of language to block Obama’s immigration policies. Back in November, Obama announced executive actions on immigration reform that would allow protections for undocumented foreign-born individuals who have children who are U.S. citizens and have lived in the U.S. for at least five years.  Specifically Obama’s plan was:

 We’re going to offer the following deal: If you’ve been in America more than five years. If you have children who are American citizens or illegal residents. If you register, pass a criminal background check and you’re willing to pay your fair share of taxes, you’ll be able to apply to stay in this country temporarily without fear of deportation.”

His plan caused a stir amongst dissenters of immigration reform, and almost resulted in a DHS shutdown, which was thankfully avoided.