Non-Immigrant Visas (other than Es, Ls and H-1B)

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On February 3, 2017, a Seattle federal court judge granted Washington State and Minnesota’s emergency motion for a temporary restraining order (TRO) in its challenge to President Trump’s Executive Order (EO) on “Protecting the Nation from Terrorist Attacks by Foreign Nationals.”

In accordance with the court ruling, the Department of Homeland Security (DHS) has suspended any and all actions implementing the affected sections of the EO, including actions to suspend passenger system rules that flag travelers for operational action subject to the EO. DHS personnel will resume inspection of travelers in accordance with standard policy and procedure. Further, the Department of State (DOS) has lifted the provisional revocation of valid visas of nationals of Syria, Iraq, Iran, Libya, Somalia, Sudan, and Yemen.

According to DOS, those visas are now valid for travel to the United States may travel if the holder is otherwise eligible. However, DOS also stated that “individuals whose visas are expired or were physically cancelled, must apply for a new visa at the a U.S. embassy or consulate, absent a Customs and Border Patrol (CBP) decision to grant parole or waive the visa requirement at the port of entry”. DOS has also resumed processing those immigrant and non-immigrant visa applications that were halted by the EO.

All CBP Field Offices have been instructed to immediately resume inspection of travelers under standard policies and procedures, and that all airlines and terminal operators have been notified to permit boarding of all passengers without regard to nationality.

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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.

Today, December 23, 2016, USCIS posted a large number of new form versions. The forms all have an effective date of today, December 23, 2016, and the website indicates that no other versions of the forms are acceptable, with the exception of Form I-129.  It appears USCIS is continuing to accept prior version of Form I-129. No prior notice of these changes was given, and there was no alert sent to stakeholders today.

Because USCIS elected to deviate from its normal procedures and did not provide notice to stakeholders or provide any grace period during which prior form versions could be submitted, it will pose some challenges to form vendors who will not have time to reprogram the case management software systems and applicants/petitioners who may remain unaware. 

USCIS has indicated to The American Immigration Lawyer’s Association (AILA) that ,while it strongly encourages people to use the new version of the forms, it is aware that there may be older editions of the forms that have already been completed and are in the queue to be mailed and/or filed. USCIS said that it will be flexible and will apply discretion when receipting forms, rather than rejecting them outright.

Affected forms include the following: I-90, I-102, I-129, I-129CW, I-129F, I-130, I-131, I-131A, I-140, I-191, I-192, I-212, I-290B, I-360, I-485, I-485 Supplement A, I-525, I-539, I-600, I-600A, I-601, I-601A, I-612, I-690, I-694, I-698, I-751, I-765, I-800, I-800A, I-817, I-824, I-910, I-924, I-924A, I-929, I-942, I-942P, N-300, N-336, N-400, N-470, N-600, and N-600K.

Please also note that regardless of the form edition submitted, applications and petitions postmarked or filed on or after December 23, 2016, must include the new fees or USCIS will reject the submission.

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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.

On October 24, 2016, the United States Citizenship and Immigration Service (USCIS) published a final rule confirming an increase to the processing fees for most of the applications and petitions it handles. This is a result of USCIS’ comprehensive review of the fee schedule for the fiscal year 2016/2017 the first USCIS fee increase since November 2010. The new fees will go into effect on December 23, 2016, which means that all applications or petitions postmarked on or after this date must include the new fees, or they will not be accepted by USCIS for processing.

According to the Department of Homeland Security, USCIS’ operational funding comes almost entirely from the user fees, and the current fees do not cover the full cost of services provided by the agency; the average fee increase of 21% is necessary to recover costs and maintain adequate level of services to the immigration benefits seekers.

While some applications see a relatively slight increase of $30 or $45, the cost of others, such as the Application for Adjustment of Status (I-485), Application for Naturalization (N-400), and Petition for a Nonimmigrant Worker (I-129) will go up by more than $100, which undoubtedly may affect certain applicants and petitioners, such as households with limited incomes or small employers. As a relief measure, simultaneously with the overall increase of the cost of services provided by USCIS, the agency now offers a reduced filing fee for the naturalization applicants (N-400) whose family income falls between 150% and 200% of the Federal Poverty Guidelines, which is adjusted annually by the U.S. Department of Health and Human Services to determine eligibility for certain federal programs. An additional benefit of the new rule is that USCIS will no longer automatically reject an immigration or naturalization benefit paid with a dishonored check or missing the required biometrics fee. Instead, applicants will be provided an opportunity to correct the deficient payment (i.e., USCIS will attempt to resubmit the insufficient check to the applicant’s bank once again) or by paying the required biometrics fee during their biometrics appointments or immigration interview. The new rule will not affect charge free services provided to refugees and asylum applicants, as well as other customers eligible for fee waivers or exemptions.

This chart lists some of the key new USCIS’ fees effective December 23, 2016. Applications and petitions postmarked or filed on or after December 23, 2016, must include these new fees or USCIS will reject the submission.  You can find the complete new fee schedule here.

Immigration Benefit Request New Fee ($) Old Fee ($)
I–90 Application to Replace Permanent Resident Card 455 365
I–102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document 445 330
I–129/129CW Petition for a Nonimmigrant worker 460 325
I–129F Petition for Alien Fiancé(e) 535 340
I-130 Petition for Alien Relative 535 420
I-131/I-131A Application for Travel Document 575 360
I–140 Immigrant Petition for Alien Worker 700 580
I–290B Notice of Appeal or Motion 675 630
I–360 Petition for Amerasian Widow(er) or Special Immigrant 435 405
I–485 Application to Register Permanent Residence or Adjust Status 1,140 985
I-485 Application to Register Permanent Residence or Adjust Status (certain applicants under the age of 14 years) 750 635
I–526 Immigrant Petition by Alien Entrepreneur 3,675 1,500
I–539 Application to Extend/Change Nonimmigrant Status 370 290
I–600/600A Petition to Classify Orphan as an Immediate Relative/Application for Advance Petition Processing of Orphan Petition 775 720
I–751 Petition to Remove Conditions on Residence 595 505
I–765 Application for Employment Authorization 410 380
I–824 Application for Action on an Approved Application or Petition 465 405
I–829 Petition by Entrepreneur to Remove Conditions 3,750 3,750
I–924 Application for Regional Center Designation Under the Immigrant Investor Program 17,795 6,230
I–924A Annual Certification of Regional Center 3,035 0
N–400 Application for Naturalization* 640 595
N–470 Application to Preserve Residence for Naturalization Purposes 355 330
N–565 Application for Replacement Naturalization/Citizenship Document 555 345
N–600/N–600K Application for Certificate of Citizenship 1,170 600/5503
USCIS Immigrant Fee 220 165
Biometric Services Fee 85 85

*Certain low-income naturalization applicants may pay a filing fee of $320 plus the $85 biometric services fee. For eligibility details and filing instructions, see Form I-942, Request for Reduced Fee and Form N-400, Application for Naturalization.

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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.

On November 18, 2016, US Department of Homeland Security (DHS) published a final rule to “improve aspects of certain employment-based nonimmigrant and immigrant visa programs.” This final rule also “amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents.” The final rule will take effect on January 17, 2017. We will provide more in depth analysis and information in future posts and today we’ll provide an overview of this comprehensive rule.

First, the final rule clarifies and improve policies and practices related to the following areas:

  • H-1B extensions of stay under AC21. The final rule addresses the ability of H-1B nonimmigrant workers who are being sponsored for LPR status (and their dependents in H-4 nonimmigrant status) to extend their nonimmigrant stay beyond the otherwise applicable 6-year limit pursuant to AC21.
  • INA 204(j) portability. The final rule addresses the ability of certain workers who have pending applications for adjustment of status to change employers or jobs without endangering the approved Form I-140 petitions filed on their behalf.
  • H-1B portability. The final rule addresses the ability of H-1B nonimmigrant workers to change jobs or employers, including: (1) Beginning employment with new H-1B employers upon the filing of non-frivolous petitions for new H-1B employment (“H-1B portability petition”); and (2) allowing H-1B employers to file successive H-1B portability petitions (often referred to as “bridge petitions”) and clarifying how these petitions affect lawful status and work authorization.
  • Counting against the H-1B annual cap. The final rule clarifies the way in which H-1B nonimmigrant workers are counted against the annual H-1B numerical cap, including: (1) The method for calculating when these workers may access so-called remainder time (i.e., time when they were physically outside the United States), thus allowing them to use their full period of H-1B admission; and (2) the method for determining which H-1B nonimmigrant workers are “cap-exempt” as a result of previously being counted against the cap.
  • H-1B cap exemptions. The final rule clarifies and improves the method for determining which H-1B nonimmigrant workers are exempt from the H-1B numerical cap due to their employment at an institution of higher education, a nonprofit entity related to or affiliated with such an institution, or a governmental or nonprofit research organization, including a revision to the definition of the term “related or affiliated nonprofit entity.”
  • Protections for H-1B whistleblowers. The final rule addresses the ability of H-1B nonimmigrant workers who are disclosing information in aid of, or otherwise participating in, investigations regarding alleged violations of Labor Condition Application (LCA) obligations in the H-1B program to provide documentary evidence to USCIS to demonstrate that their resulting failure to maintain H-1B status was due to “extraordinary circumstances.”
  • Form I-140 petition validity. The final rule clarifies the circumstances under which an approved Immigrant Petition for Alien Worker (Form I-140 petition) remains valid, even after the petitioner withdraws the petition or the petitioner’s business terminates, including for purposes of status extension applications filed on behalf of the beneficiary, job portability of H-1B nonimmigrants, and job portability under section 204(j) of the Immigration and Nationality Act (INA), 8 U.S.C. 1154(j).

Second, the final rule made the changes consistent with the goals of AC 21 and ACWIA to further provide stability and flexibility in certain immigrant visa and nonimmigrant visa categories in the following areas:

  • Establishment of priority dates. To enhance clarity for the regulated community, the final rule provides that a priority date is generally established based upon the filing of certain applications or petitions. The new regulatory language is consistent with existing DHS practice in establishing priority dates for other Form I-140 petitions that do not require permanent labor certifications (labor certifications)—such as petitions filed under the employment-based first preference immigrant visa (EB-1) category.
  • Retention of priority dates. To enhance job portability for workers with approved Form I-140 petitions, the final rule explains the circumstances under which workers may retain priority dates and effectively transfer those dates to new and subsequently approved Form I-140 petitions. Priority date retention will generally be available as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. This provision improves the ability of certain workers to accept promotions, change employers, or pursue other employment opportunities without fear of losing their place in line for immigrant visas.
  • Retention of employment-based immigrant visa petitions. To enhance job portability for certain workers with approved Form I-140 petitions in the EB-1, second preference (EB-2), and third preference (EB-3) categories, but who are unable to obtain LPR status due to immigrant visa backlogs, the final rule provides that Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business.
  • Eligibility for employment authorization in compelling circumstances. To enhance stability and job flexibility for certain high-skilled nonimmigrant workers in the United States with approved Form I-140 petitions who cannot obtain an immigrant visa due to statutory limits on the number of immigrant visas that may be issued, the final rule allows certain beneficiaries in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization if: 1) They are the principal beneficiaries of an approved Form I-140 petition; 2) An immigration visa is not authorized for issuance for their priority date and; 3) they can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion. This employment authorization may only be renewed in limited circumstances and only in one year increments.
  • 10-day nonimmigrant grace periods. To promote stability and flexibility for certain high-skilled nonimmigrant workers, the final rule provides two grace periods of up to 10 days, consistent with those already available to individuals in some nonimmigrant classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications.
    • The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, which provides nonimmigrants in the above classifications a reasonable amount of time to enter the United States and prepare to begin employment in the country.
    • The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time for such nonimmigrants to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.
  • 60-day nonimmigrant grace periods. To further enhance job portability, the final rule establishes a grace period of up to 60 consecutive days during each authorized validity period for individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. This grace period allows high-skilled workers in these classifications, including those whose employment ceases prior to the end of the petition validity period, to more readily pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications or employment in the same classification with a new employer. The grace period also allows U.S. employers to more easily facilitate changes in employment for existing or newly recruited nonimmigrant workers.
  • H-1B licensing. To provide clarity and certainty to the regulated community, the final regulations codify current DHS policy regarding exceptions to the requirement that makes the approval of an H-1B petition contingent upon the beneficiary’s licensure where licensure is required to fully perform the duties of the relevant specialty occupation. The final rule generally allows for the temporary approval of an H-1B petition for an otherwise eligible unlicensed worker, if the petitioner can demonstrate that the worker is unable for certain technical reasons to obtain the required license before obtaining H-1B status. The final rule also clarifies the types of evidence that would need to be submitted to support approval of an H-1B petition on behalf of an unlicensed worker who will work in a state that allows the individual to be employed in the relevant occupation under the supervision of licensed senior or supervisory personnel.

Last, this final rule also automatically extends the employment authorization and validity of existing employment authorization documents (EADs) issued to certain employment-eligible individuals for up to 180 days from the date of expiration, as long as: (1) A renewal application is filed based on the same employment authorization category as the previously issued EAD (or the renewal application is for an individual approved for Temporary Protected Status (TPS) whose EAD was issued under 8 CFR 274a.12(c)(19)); (2) the renewal application is timely filed prior to the expiration of the EAD (or, in accordance with an applicable Federal Register notice regarding procedures for renewing TPS-related employment documentation) and remains pending; and (3) the individual’s eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the underlying eligibility is not a prerequisite to the extension of employment authorization. Additionally, DHS eliminates the regulatory provisions that require adjudication of the Application for Employment Authorization (Form I-765 or EAD application) within 90 days of filing and that authorize interim EADs in cases where such adjudications are not conducted within the 90-day timeframe. These changes provide enhanced stability and certainty to employment-authorized individuals and their employers while reducing opportunities for fraud and protecting the security related processes undertaken for each EAD application.

A copy of the final rule can be found 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.

Recently, the American Immigration Council (Council) and the American Immigration Lawyers Association (AILA) teamed up on a lawsuit against the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services (USCIS) seeking to “obtain the information needed to provide the public with an understanding of the operating procedures and Defendant USCIS follows when administering the H-1B lottery. AILA seeks declaratory, injunctive and other appropriate relief under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to compel the release of records …”

As stated in the complaint, with an annual limit of 65,000 visas for new hires, and 20,000 additional visas for professionals with an advanced degree from a U.S. university, employer’s demand for H-1B visas has exceeded the statutory cap for more than ten years. As a result, U.S. employers seeking highly skilled foreign professionals have to submit petitions to USCIS on the first five business day of April for the limited pool of H-1B nonimmigrant visa numbers that are available for the coming fiscal year. If USCIS determines at any time during the first five business days of the filing period that it has received more than enough petitions to meet the numerical limits, the agency will use a computer-generated random selection process (or “lottery”) to choose those petitions that will be accepted for processing according to the statutory limits, taking into account a percentage of the petitions selected which will be denied, withdrawn, or otherwise rejected. Petitions not selected will be returned to the petitioning employers.

“When petitions are submitted to USCIS in April, it’s as if they disappear into a ‘black box,’” said Melissa Crow, Legal Director of the American Immigration Council. “This suit is intended to pry open that box and let the American public and those most directly affected see how the lottery system works from start to finish, and to learn whether the system is operating fairly and all the numbers are being used as the law provides.” As stated by Benjamin Johnson, AILA Executive Director, “Despite the Obama Administration’s public commitment to the values of transparency and accountability, frankly, our attempts to see into this process have been resisted. Instead of responding to our requests for information about how the lottery is conducted, how cap-subject petitions are processed, and how the numbers are estimated and tracked, USCIS has kept the process entirely opaque. This litigation is intended to shine a necessary light on an important process in America’s business immigration system. ”

In a continuation of its effort to encourage eligible immigrants to become U.S. citizens, the Obama administration is proposing adjustments to the immigration benefit fee schedule that would raise the cost of some benefits but reduce naturalization fees for certain low-income immigrants.

The Department of Homeland Security (DHS) released its proposed changes to the U.S. Citizenship and Immigration Services (USCIS) Fee Schedule on May 4, 2016, affecting its fees for services.  The proposed rule has been published in the Federal Register (81 FR 26904, 5/4/16) and is open for comment. Comments are due by July 5, 2016. The proposed changes are likely to go into effect this fall.

According to USCIS, it conducted a comprehensive fee review, after refining its cost accounting process, and determined that current fees do not recover the full costs of the services it provides.  Accordingly, it has stated that adjustment to the fee schedule is necessary to fully recover its costs for services and to maintain adequate service levels.  DHS proposes to increase USCIS fees by a weighted average of 21 percent and add one new fee.  In addition, DHS proposes to clarify that persons filing a benefit request may be required to appear for biometrics services or an interview and pay the biometrics services fee, and make a number of other changes.  USCIS last adjusted its fee schedule in 2010.

This chart summarizes the proposed changes.  The range of fee changes varies, for example, increasing by $45 for an application for naturalization and by $195 for an application for a fiancé visa. The rules also include a new fee of $3,035 to recover the full cost of processing the Employment Based Immigrant Visa, Fifth Preference (EB-5) Annual Certification of Regional Center, Form I-924A.  In addition, the DHS proposal would clarify that people who apply for a benefit may be required to appear for biometrics services or an interview and to pay the biometrics services fee, among other changes

Largely exempt from the increases, however, are low income immigrants who wish to become U.S. citizens.  Under the proposed rule, “DHS would charge a reduced fee of $320 for naturalization applicants with family income greater than 150 percent and not more than 200 percent of the Federal Poverty Guidelines.”

“DHS is proposing this change to increase access to United States citizenship,” the proposed rule explains.  The allowance effectively cuts in half the current cost of naturalization — $680, including the $85 biometric fee for these individuals while seeking an additional $45 increase in the cost of naturalization applications for those immigrants who can afford it.

Rep. Luis V. Gutiérrez (D-IL), who has been promoting naturalization and voter registration across the country as a means for immigrants to “Stand Up to Hate,” cheered the rule.  “Right now, a lot of immigrants face a difficult choice: pay $700 or so for the chance to take all the tests and apply for citizenship, or pay $450 to renew a green-card for five years,” Gutiérrez said in a statement.

“Now, the math is much better,” he continued. “You can apply for citizenship and a fee waiver and become an American citizen – with all the rights, duties and honor of citizenship – for a more attainable price or maybe even for free.  The new calculation is going to mean that millions of those who are already eligible can finally take the step and apply for citizenship.”

Applicants can apply for a fee waiver if their income is below or 150 percent of the poverty line, they are receiving a means-tested benefit, or they are experiencing “financial hardship.”

In recent years the Obama administration has put an emphasis on encouraging the estimated 8.8 million eligible legal permanent residents in the U.S. to naturalize and become citizens. Immigration activists, like Gutiérrez, have also embarked on campaigns to help immigrants naturalize and register to vote in a bid to influence the upcoming 2016 election.

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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 has been working on mitigating the impact caused by the processing delay on I-129 petitions. In addition to transferring cases from Vermont Service Center to other Service Centers to balance caseloads, USCIS recently began allowing petitioners who filed Form I-129 requesting an extension of status or change of employer to contact USCIS after the petition has been pending for 210 days or more for an inquiry based on the petition being outside of normal processing time.

Petitioners or the legal representative of record may submit an inquiry by calling the National Customer Service Center at 1-800-375-5283 (TDD for deaf and hard of hearing: 1-800-767-1833). When making an inquiry, be prepared to provide the receipt number and specify that the case has been pending for 210 days or more.

On January 15, 2016, the Department of Homeland Security (DHS) amended its regulations to improve the programs serving the H-1B1, E-3 and CW-1 nonimmigrant classifications and the EB-1 immigrant classification, and remove unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.

This final rule, effective on Feb. 16, revises regulations affecting highly skilled workers in the nonimmigrant classifications for specialty occupations from Chile, Singapore (H-1B1) and Australia (E-3); the immigrant classification for employment-based first preference (EB-1) outstanding professors and researchers; and nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification.

Specifically, this final rule amends DHS regulations as described below:

  • DHS is authorizing continued employment with the same employer for up to 240 days for H-1B1 and principal E-3 nonimmigrants whose status has expired while their employer’s timely filed extension of stay request remains pending.
  • DHS is providing this same continued employment authorization for CW-1 nonimmigrants whose status has expired while their employer’s timely filed Form I-129CW, Petition for a CNMI-Only Nonimmigrant Transitional Worker, request for an extension of stay remains pending.
    • The prior “240 Day Rule” authorized by DHS permits an H-1B nonimmigrant worker to continue to work with same employer for up to 240 days beyond the date of expiration on the visa, so long as an extension of stay has been filed prior to the expiration date (i.e. timely filed).
  • DHS is including H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized for employment incident to status with a specific employer. This means that H-1B1 and principal E-3 nonimmigrants are allowed to work for the sponsoring employer without having to separately apply for employment authorization.
  • Existing regulations on the filing procedures for extensions of stay and change of status requests now include principal E-3 and H-1B1 nonimmigrant classifications.
  • Employers petitioning for EB-1 outstanding professors and researchers may now submit initial evidence comparable to the other forms of evidence already listed in 8 CFR 204.5(i)(3)(i), much like certain employment-based immigrant categories that already allow for submission of comparable evidence.

As a result of this regulatory change, employers will be able to reverify affected workers on Form I-9 without the need to wait for an approval of the extension petition.

What is the effective date of the new rule?

The amended regulation took effect on February 16, 2016.

What has changed, and who is affected?

The regulations were amended to add H-1B1 and principal E-3 nonimmigrants to the list of “aliens authorized for employment with a specific employer incident to status” and 8 CFR §274a.12(b)(20) was amended to add H-1B1, E-3, and CW-1 to the list of nonimmigrant visa classifications that are eligible for an automatic 240-day extension of employment authorization where the nonimmigrant’s period of authorized stay has expired but where a timely application for an extension of stay has been filed. Prior to this change, the regulation only applied to A-3, E-1, E-2, G-5, H-1B, H-2A, H-2B, H-3, I, J-1, L-1, O-1, O-2, P-1, P-2, P-3, R-1, and TN nonimmigrants.

Does this change apply to petitions pending on February 16, 2016, or only to new filings on or after that date?

Neither the preamble nor the text of the final rule provide guidance as to whether the 240-day extension applies to E-3, H-1B1, or CW-1 extension petitions filed prior to February 16, 2016 but remain pending on the effective date.

How should an employer annotate and reverify Form I-9 for an H-1B1, E-3, or CW-1 employee who wishes to rely on the 240-day extension rule?

On February 23, 2016, USCIS posted the following guidance on the I-9 Central homepage:

If an employer has timely filed an extension of stay for its H-1B1, E-3 or CW-1 nonimmigrant employee, the employer should write “240-Day Ext” and the date the employer submitted the Form I-129, Petition for a Nonimmigrant Worker, or Form I-129CW petition to USCIS in Section 2.  The employer must reverify the employee’s employment authorization in Section 3 once a decision is received on the request for an extension of stay or by the end of the 240-day period, whichever comes first.

This is consistent with general guidance on the 240-day rule contained in the April 30, 2013, version of the M-274 Handbook for Employers. The M-274 further advises employers to retain proof of timely filing of the extension with USCIS. This includes a copy of the I-129, proof of payment, proof of mailing, and/or the receipt notice from USCIS. Once the extension is approved, the employer should “Enter the document title, number and expiration date listed on the notice in Section 3 of Form I-9.”

This final rule does not impose any additional costs on employers, workers or any governmental entity. Further, changing the employment authorization regulations for H-1B1 and E-3 nonimmigrants makes them consistent with other similarly situated nonimmigrant worker classifications and minimizes the potential of employment disruptions for U.S. employers of H-1B1, E-3 and CW-1 nonimmigrant workers. Additionally, DHS expects that this change will help U.S. employers recruit EB-1 outstanding professors and researchers by expanding the range of evidence that U.S. employers may provide to support their petitions. DHS states “Attracting and retaining highly skilled workers is critical to sustaining our Nation’s global competitiveness.  By attracting the best and brightest from around the world, the United States can harness their talents, skills, and ideas to help the U.S. economy grow.”

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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.

As many are aware, H-1B nonimmigrant visa petition for FY 2017 may be filed starting April 1, 2016. For FY 2016, USCIS received approximately 233,000 cap subject petitions during the first five business days beginning April 1, 2016. This year, it is expected that more people will apply for H-1B than the number available (annual quota of 65,000 regular cap petitions and 20,000 advanced degree cap petitions). Per current regulation, if USCIS receives a sufficient number of petitions to reach the numerical limit during the first five business days in April, USCIS will conduct a random selection “lottery” to determine the petitions that will be accepted for processing. If there is a lottery for 2017, as expected based on the last year’s number, USCIS will make an announcement. Accordingly, the H-1B cap petitions must be filed and received by USCIS by April 7, 2016 in order to get a chance to be entered into the lottery processing.

Here are the answers to two common questions on the H-1B Cap filing process we normally encounter:

Q: Will Premium Processing increase the change of making the H-1B quota?

No. Filing the H-1B cap petition with premium processing will not increase the chances being selected in the lottery. Due to the high volume of filing, USCIS usually delays the starting date of the 15-day premium processing. For FY 2016, premium processing began on April 27, 2015 even the case was filed in the first five business days. However, one benefit of premium processing filing is that the petitioner and beneficiary will get the receipt notice faster than the cases which are filed under regular processing. This information may be helpful for the beneficiaries whose OPT will expire in April as they will be able to determine their cap-gap eligibility and continued working authorization.

Q: Can F-1 student remain in the US if his or her F-1 status expires before 10/1/2016?

Under the cap-gap rule, F-1 students whose OPT was valid at the time of filing the H-1B petition, but for whom the OPT will expire before October 1, will remain in valid status and can continue to stay and work through September 30 when the petition is pending or if it is approved. However, for the students whose OPT was expired and subsequently was in a valid grace period at the time the H-1B cap petition was filed, he/she will receive an automatic extension of stay until September 30 when the petition is pending or if it is approved. However, he/she will not receive the working authorization during this period.

On August 12, 2015, the US District Court for the District of Columbia held that the 2008 STEM OPT extension rule, including the cap-gap rule was invalid, but stayed vacatur of the rule until February 12, 2016. On January 23, 2016, the District Court extended the vacatur until May 10, 2016. If a final rule is published before May 10, 2016, the cap-gap provision should remain valid without interruption.

Due to the time is critical in H-1B cap petition filing, if you have an employee who requires an H-1B petition in order to remain employed, please contact Fox Rothschild immediately to allow sufficient time to prepare the H-1B visa petition and meet the filing deadline.

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.

As many of you are aware, the processing of H-1B extensions at both USCIS’ California Service Center (CSC) and Vermont Service Center (VSC) continues to be significantly delayed. Currently, the reported processing times for H-1B extensions at both service centers is mid-June 2015. This extreme delay is causing extraordinary hardship to affected employers and employees as the many pending petitions face the expiration of the automatic 240-day extension of continued status and employment authorization 8 C.F.R § 274a.12(b)(20).

American Immigration Lawyer Association (AILA) has been following up this issue with USCIS Service Center Operations (SCOPS). SCOPS has stated that “it is aware of the issue and is working closely with service centers to work through the backlog.” As to the reasons for the backlog, SCOPS reported a marked increase in H-1B filings, including Simeo filings, and noted that there has been an increase in premium processing petitions as well. SCOPS promised an update on its progress during next month’s call with AILA, which is scheduled for March 9, 2016. In the meantime, attorneys and employers should be cautious about the expiration of 240-day employment authorization and ensure that employees do not work without authorization.