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Immigration View

Navigating Complex U.S. Immigration Laws

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

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

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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.

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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.

FY2016 H-1B Cap: USCIS Issues Helpful Information

Posted in Consular Issues, General Immigration News and Updates, H-1B Temporary Workers, Start-Up 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.

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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.

When Your Employee Tells You that His I-9 Documents are Fake…

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, Immigration Accountability Executive Action (Obama 2014)

What should an employer do?  The employee provides facially valid documents and completes Section 1 of the I-9 .  Time goes by… one fine day, the employee presents the employer with new documents, perhaps in a different name.  The employee discloses that the first set of documents were not valid, they were fakes, good fakes, but says that the new documents are real and legitimate.

This happens with some frequency and as Deferred Action becomes more prevalent, it will likely occur even more.  Recently,  the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) issued a Technical Assistance Letter (TAL) that sheds some light on this question (January 8, 2015 letter from Alberto Ruisanchez, Deputy Special Counsel).

The USCIS M-274 I-9 Handbook gives the following guidance: “ …an employee may have been working under a false identity, has subsequently obtained a work authorized immigration status in his or her true identity, and wishes to regularize his or her employment records.  In that circumstance you should complete a new form I-9.  Write the original hire date in Section 2, and attach the new Form I-9 to the previously completed Form I-9 and include a written explanation….the I-9 rules do not require termination of employment.”

The OSC could not identify any violation of the anti-discrimination law when: ” an employer consistently accepts documents  that employees choose to present that reasonably appear to be genuine and relate to the individual, regardless of whether an employee admits that the documents previously presented for employment eligibility verification were ‘not real’….nor…when an employer allows an employee to continue employment under (these) circumstances.”

So long as the employer does not reject valid work authorization documentation or terminate employees because of their citizenship, the employer is not likely to be violating the federal anti-discrimination laws.

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

H-4 EAD Applications Accepted Beginning May 26, 2015: Are you that “certain spouse”?

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, H-1B Temporary Workers, Priority Dates

Are you that “certain someone”?  That “certain spouse” of an H-1B worker who will be eligible for H-4 work authorization?  Not sure?  Here’s the scoop.

At long last, on Wednesday, February 25, 2015, the US Department of Homeland Security (DHS) published a Federal Register Notice captioned, “Employment Authorization for Certain H-4 Dependent Spouses; Final Rule”.   Per the much-awaited Notice, on May 26, 2015 (NOT earlier), USCIS will begin accepting applications from eligible applicants in H-4 status, but H-4 work authorization will not be available to all who hold H-4 status.  The chosen few, those “certain spouses” who will be eligible for H-4 work authorization include:

  • An H-4 spouse of an H-1B worker with an approved I-140, or
  • An H-4 spouse of an H-1B worker who has been granted a 7+ year extension of H-1B time pursuant to AC21 Sections 106(a) and (b).  (Note that an H-4 spouse of an H-1B worker granted a 7+ year extension under AC21 Section 104(c) would be covered under the first bullet point.)

So, not all H-4 dependent spouses will qualify to apply for an H-4 EAD (employment authorization document).  H-4 children are also ineligible.

An H-1B worker who is running out of H-1B time may want to consider whether it makes sense to change to H-4 status and seek work authorization—that is, if married to an H-1B worker who would enable the work authorization criteria to be met. Fortunately, there is a provision for concurrent filing of the H-4 application and the EAD application.

Typically, it takes about 90 days from the date of USCIS receipt of an EAD application for the EAD card to be issued.  It’s not clear whether it will take longer given that there is likely to be a very large number of filings seeking H-4 work authorization.

Careful consideration and strategizing must be undertaken to determine eligibility, the best course of action, and timing.  Please feel free to contact us if you need assistance.

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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.

 

Employment Authorization will be available for Certain H-4 Spouses as of May 26, 2015

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, H-1B Temporary Workers, Immigrant Visas, Non-Immigrant Visas (other than Es, Ls and H-1B)

Today, February 24, 2015, U.S. Citizenship and Immigration Services (USCIS) Director León Rodríguez announced that, as of May 26, 2015, certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status will be eligible for employment authorization. The Department of Homeland Security (DHS) has amended the regulations to allow these H-4 dependent spouses to accept employment in the United States.

According to Rodríguez, finalizing the H-4 employment eligibility was an important element of the immigration executive actions President Obama announced in November 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs.

“Allowing the spouses of these visa holders to legally work in the United States makes perfect sense,” Rodríguez said. “It helps U.S. businesses keep their highly skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent residents. It also provides more economic stability and better quality of life for the affected families.”

Eligible individuals include certain H-4 dependent spouses of H-1B nonimmigrants who:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

DHS reports that it expects this change will reduce the economic burdens and personal stresses H-1B nonimmigrants and their families may experience during the transition from nonimmigrant to lawful permanent resident status, and facilitate their integration into American society. It is anticipated that this change will reduce certain disincentives that currently lead H-1B nonimmigrants to abandon efforts to remain in the United States while seeking lawful permanent residence, which will minimize disruptions to U.S. businesses employing them and, further, also support the U.S. economy because the contributions H-1B nonimmigrants make to entrepreneurship and science help promote economic growth and job creation. The rule also will bring U.S. immigration policies more in line with those laws of other countries that compete to attract similar highly skilled workers.

Under the rule, eligible H-4 dependent spouses must file Form I-765, Application for Employment Authorization, with supporting evidence and the required $380 fee in order to obtain employment authorization and receive a Form I-766, Employment Authorization Document (EAD). USCIS will begin accepting applications on May 26, 2015. Once USCIS approves the Form I-765 and the H-4 dependent spouse receives an EAD, he or she may begin working in the United States.

USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years. USCIS reminds those potentially eligible that this rule is not considered effective until May 26, 2015. Individuals should not submit an application to USCIS before the effective date, and should avoid anyone who offers to assist in submitting an application to USCIS before the effective date.

For more information, see USCIS’ news release here.

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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.

Expanded DACA Applications NOT Accepted: Implementation Delayed

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, Immigration Accountability Executive Action (Obama 2014)

There is bad news for those hoping to avail of expanded DACA eligibility.  You may recall that President Obama’s Immigration Accountability Executive Action (IAEA) set the stage for several million people to be eligible for DACA employment authorization.   USCIS had announced plans to begin accepting employment card applications from these newly eligible applicants beginning today.  On February 17, 2015, yesterday, a judge in South Texas issued a preliminary injunction which prevents (at least temporarily) the Immigration Service’s planned implementation of the DACA expansion.  For more about DACA expansion, see Robert Whitehill’s blog post at http://immigrationview.foxrothschild.com/general-immigration-news-and-updates/the-first-arrival-daca-expansion.

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

 

The first arrival : DACA expansion

Posted in Employment Verification Compliance (including I-9s, E-Verify, and Enforcement), General Immigration News and Updates, Immigration Accountability Executive Action (Obama 2014)

Note added on February 18, 2015:  Yesterday, a judge in South Texas issued a preliminary injunction which prevents (at least temporarily) the Immigration Service’s planned implementation of the DACA expansion. 

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DACA expansion, the first part of the President’s Executive Action goes live on February 18th.  USCIS has issued new forms, instructions , guidance and FAQs.  Beginning next week, more undocumented immigrants who came as children are eligible to apply for Deferred Action.  DACA has been expanded , but it certainly is not for everyone. Here are the broad guidelines.

 To be eligible , the person must :
*have come to the US before his/her 16th birthday

*been continuously resided in the US at least from September 1 , 2010 to the present

*been present in the US on June 15, 2012 and on have had no lawful status on June 15, 2012

*be currently in school , graduated from High School, have a GED or been honorably discharged from the US armed forces ,AND

*be free from any felony,  “significant misdemeanor” , more than 3 misdemeanor convictions and pose no threat to public safety or national security.

 Each case is determined on a case by case basis after submission of a new form , form I-821D,  with an extensive documentary package proving each of the elements.  The application may be accompanied by a request for employment authorization, form I-765WS.  The filing fee for the I 765WS is  $465.

 The grant of Deferred Action for Childhood Arrivals is good for a period of 3 years and may be renewed.  It is not for everyone, but the expanded program is calculated to include another 500,000 beneficiaries. 

 USCIS provides a great deal of information on DACA at www.uscis.gov , the FAQs are found at  www.uscis.gov/humanitarian/consideration-deferred-action-childhood-arrivals-process