Category: H-1B


USCIS Announces Suspension of H-1B Premium Processing

March 5th, 2017 — 11:24am

What Happened?

On March 3, USCIS unexpectedly announced the temporary suspension of premium processing service for all H-1B petitions filed on or after April 3, 2017. Premium processing is a USCIS program that provides for a 15 day initial review in exchange for a $1,225 filing fee. USCIS has indicated that this premium processing suspension may last for up to six months.

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. This includes extension and amendment petitions. Further, since new cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed under the fiscal year 2018 H-1B regular and master’s degree caps. The suspension also applies to petitions that may be cap-exempt, such as those filed by universities and other cap-exempt employers.

USCIS will continue to premium process H-1B petitions if the premium processing request was properly filed before April 3, 2017. Other types of petitions eligible for premium processing may continue to utilize the expedited service.

Why Did USCIS Make This Surprise Announcement?

According to USCIS, this suspension of premium processing is being implemented in order to help reduce overall H-1B processing times, which are currently running close to a full year in some instances. USCIS claims that by suspending premium processing, they will be able to focus on processing long-pending petitions that have gone unprocessed because of the large numbers of premium processing requests in the last few years. USCIS will also prioritize processing of H-1B extension petitions that are nearing 240 days pending, since the automatic extension of employment authorization only lasts for 240 days after the prior petition expiration.

Are There Any Exceptions?

During the premium processing suspension, petitioners may still request expedited processing if they meet certain criteria. USCIS reviews expedite requests on a case-by-case basis and requests are granted at their discretion. USCIS may expedite a petition or application if it meets one or more of the following criteria:

  • Severe financial loss to company or person;
  • Emergency situation;
  • Humanitarian reasons;
  • Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States;
  • Department of Defense or national interest situation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government.);
  • USCIS error; or
  • Compelling interest of USCIS.

In our experience, expedite requests are rarely granted.

What Is The Practical Impact For Companies and H-1B Employees Who Need Extensions in 2017?

Many H-1B employers routinely utilize premium processing service, in part because USCIS processing times have become so unreasonably long, and H-1B extensions can be filed no more than six months prior to expiration. Lengthy H-1B processing times during the unavailability of premium processing will present the following significant challenges:

  • Many H-1B employees will lose the ability to travel for business or pleasure because they will be unable to obtain a new visa to reenter the U.S. without an extension approval notice;
  • H-1B employees and their H-4 spouses may be unable to renew driver’s licenses;
  • H-1B employees seeking to change employers will either have to resign their current position and “port” to the new employer using the filing fee receipt from the new employer’s H-1B petition (without the certainty of an approved petition) or wait many months for the new employer’s petition to be approved.

Zulkie Partners will be working closely with clients to minimize the disruption caused by the sudden policy shift at USCIS.

Comment » | Department of Homeland Security, H-1B

Two Lawsuits Challenge the Government’s H-1B Lottery System

June 16th, 2016 — 3:33pm

Recently, two lawsuits have been filed in federal district court challenging various aspects of the H-1B lottery system. The first case is a class action filed in the U.S. District Court for the District of Oregon against USCIS and alleges that the randomized lottery system used to select a limited number of H-1B petitions for processing is “arbitrary and capricious.” The suit asks the court to hold unlawful and set aside USCIS’s regulations that require H-1B petitions to be filed during a five-day filing window and subjecting them to a random lottery in which losing lottery filings are rejected and not assigned a priority date. The case asserts that USCIS should be issuing receipts and priority dates for all cases because there is no statutory basis for the agency to require a filing window, a random lottery, and a rejection system. Indeed, the plain language of the statute requires that H-1B petitions be processed in the order in which petitions are filed. Plaintiffs argue that an orderly priority date assignment system and waiting list should be established similar to the system in place for immigrant visa petitions. The current regulatory system results, says plaintiffs, in a potentially never-ending game of chance for petitions filed during the window each year, with some unlucky individuals trying and failing each year to obtain an H-1B number, while some lucky lottery winners obtain a visa number in the very first year a petition is filed on their behalf. The plaintiffs ask the court to order defendants (USCIS) to assign priority dates to improperly rejected H-1B petitions that are resubmitted for acceptance by members of the class; order USCIS to accept H-1B petitions throughout the year and assign priority dates; and make H-1B numbers available based on the order in which they are received. In the past four years, almost 500,000 cases have been rejected.

 

The second lawsuit filed against DHS and USCIS seeks declaratory, injunctive, and other appropriate relief under the Freedom of Information Act to obtain information so that the public has a clear understanding of USCIS operating procedures and policies when administering the H-1B lottery. The suit was filed by a private law firm, the American Immigration Council (Council), and the American Immigration Lawyers Association (AILA). It alleges that USCIS has never been forthcoming in describing the selection process. The suit is intended to let the American public and those most directly affected see how the lottery system works from start to finish, in order to learn whether the system is operating fairly. Despite the government’s stated commitment to transparency and accountability, prior attempts to learn more about how the H-1B lottery process is conducted have been resisted.

Comment » | H-1B

DHS Publishes Major Regulation on High Skilled Foreign Workers

January 4th, 2016 — 9:40am

On December 31, 2015, the Department of Homeland Security (DHS) published a massive proposed regulation addressing both nonimmigrant working visa categories and green card sponsorship by employers. Comments on the proposal must be filed within 60 days.

DHS refers to the proposal as “Improvements Affecting High-Skilled Nonimmigrant Workers.” While the proposed regulation does contain some positive changes, there are other provisions that will be a step backwards from current practice (i.e., some EAD processing) or will fall far short of the promises made by President Obama in his November 2014 announcement on Executive Action on business immigration.

Job Portability for Certain Adjustment of Status Applicants

Under existing law when a foreign national has an approved immigrant visa petition and an adjustment of status application that has been pending for more than 180 days they may change jobs or even employers so long as the new position is the “same or similar” to the position for which an immigrant visa petition was previously approved.

The proposed regulation provides that an immigrant visa petition for EB-1 (but not “extraordinary ability”), EB-2, or EB-3 remains valid if the petition is approved and either:

  • The employment offer from the petitioning employer is continuing and remains bona fide; or
  • The beneficiary has a new offer of employment in the same or a similar occupational classification as the employment offer listed in the approved petition, the application for adjustment of status based on this petition has been pending for 180 days or more, and the approval of the petition has not been revoked. A new offer of employment may be from the petitioning employer, from a different U.S. employer, or based on self-employment.

A new supplementary form to the application for adjustment of status (Form I-485) will assist the Department in adjudicating “same or similar.” There is no fee attached to the supplement but DHS may consider a fee in the future.

The proposed regulation contains the following language modestly expanding the current DHS interpretation of “same or similar”:

The term “same occupational classification” means an occupation that resembles in every relevant respect the occupation for which the underlying employment-based immigrant visa petition was approved. The term “similar occupational classification” means an occupation that shares essential qualities or has a marked resemblance or likeness with the occupation for which the underlying employment-based visa petition was approved.

Note: The proposed regulation does NOT expand portability to those foreign nationals who are the beneficiary of an approved I-140 immigrant visa petition but who do not have an I-485 application for adjustment of status that has been pending for more than 180 days. For both employers and foreign national employees, this is the most disappointing aspect of the proposed regulation. The proposed regulation does not change the existing requirement that a new PERM labor certification and I-140 immigrant visa petition must be approved for any material change in job duties.

Retention of Priority Dates

The proposal clarifies that the priority date of a properly filed employment-based immigrant visa petition that does not require a labor certification is the date the completed, signed petition is properly filed with DHS.

The priority date in an EB-1, EB-2, or EB-3 petition may be used for a subsequently filed EB-1, EB-2 or EB-3 petition, unless USCIS denies the petition (or otherwise fails to approve it) or revokes the petition’s approval due to: (1) fraud or a willful misrepresentation of a material fact; (2) a determination that the petition was approved in error; or (3) revocation or invalidation of the labor certification associated with the petition.

Note: If the prior I-140 petition can be revoked by DHS if they determine the earlier petition was approved in error then uncertainty will continue on the ability of foreign nationals to recapture an earlier priority date.

Changes to Rules on Revocation of Approved Immigrant Visa Petitions

The proposed rule also provides that EB-1, EB-2, and EB-3 immigrant visa petitions that have been approved for 180 days or more would no longer be automatically revoked based only on withdrawal by the petitioner or termination of the petitioner’s business. As long as the approval has not been revoked for fraud, material misrepresentation, the invalidation or revocation of a labor certification, or USCIS error, the petition will generally continue to be valid for various purposes including: (1) the retention of priority dates; (2) job portability, and (3) extensions of status.

Exception to 6-year maximum stay rule for certain H-1B nonimmigrants

The proposed regulation implements current agency guidance and authorizes approval of H-1B status beyond 6 years, in 3-year increments, until USCIS adjudicates the adjustment of status application, for beneficiaries of approved EB-1, EB-2, and EB-3 petitions who can demonstrate that an immigrant visa is not available at the time the H-1B petition is filed because the immigrant visa classification sought is already over-subscribed. This applies only to the principal beneficiary and not any dependents who may also be in H-1B status.

The proposed regulation implements current agency guidance and authorizes approval of H-1B status beyond 6 years, in 1-year increments, for certain H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status if 365 days or more have passed since the filing of a labor certification application or employment-based immigrant visa petition. Extensions are generally available until a final decision is made to grant or deny the labor certification application or immigrant visa petition, or to grant or deny permanent resident status.

Licensure

Under the proposed regulation, DHS may approve an H-1B petition for a 1-year validity period if a state or local license to engage in the relevant occupation is required and the appropriate licensing authority will not grant such license absent evidence that the beneficiary has been issued a social security number or granted employment authorization. A beneficiary who has been approved for a 1-year validity period may not obtain an extension of H-1B status without proof of licensure.

H-1B Cap Exemption Provisions

The proposed regulation implements current agency guidance and codifies which

H-1B nonimmigrants are exempt from the cap if they are employed directly by: (a) an institution of higher education, (b) a nonprofit entity related to or affiliated with such an institution, (c) a nonprofit research organization, or (d) a governmental research organization.

Miscellaneous H-1B Provisions

The proposed regulation implements current agency guidance and authorizes:

  • H-1B nonimmigrants who are beneficiaries of new H-1B petitions seeking an amendment or extension of their stay in H-1B status to commence new or concurrent employment upon the filing of a non-frivolous H-1B petition.
  • H-1B beneficiaries to recapture time spent outside the United States during the validity of an H-1B petition.

Grace Periods

The proposed rule provides a 10-day grace period (similar to that which is currently extended to H-1B nonimmigrants) to individuals in E-1, E-2, E-3, L-1, and TN classifications and their dependents.

It also authorizes a one-time grace period, up to 60 days, curing the period of petition validity (or other authorized validity period) for E-1, E-2, E-3, H-1B, H-1B1, L-1, and TN nonimmigrants whose employment has ended. Such nonimmigrants may seek new employment, seek a change of status to a different nonimmigrant classification, or make preparations for departure from the United States.

Employment Authorization (EAD Cards) for Certain Employment-Based Nonimmigrants

The proposed regulation permits one year of employment authorization for an individual who: (1) is currently in the U.S. in valid E-3, H-1B, H-1B1, O-1 or L-1 nonimmigrant status; (2) is the beneficiary of an approved EB-1, EB-2 or EB-3 immigrant visa petition; (3) does not have an immigrant visa number immediately available under the quota; and (4) can demonstrate compelling circumstances that justify an independent grant of employment authorization.

A limited number of individuals will be able to demonstrate compelling circumstances justifying an independent grant of employment authorization. The fact that the individual is approaching or has reached the statutory maximum period of time in nonimmigrant status is not deemed to be compelling. Employment authorization generally would not be available if the tendered compelling circumstances are within the individual’s control.

The proposed regulation does not define “compelling circumstances” in order to “retain flexibility” but DHS has identified four circumstances in which it may consider granting employment authorization under the proposed change:

  • Serious Illnesses and Disabilities. The nonimmigrant or his or her dependent is facing a serious illness or disability that entails moving to a different geographic area for treatment or otherwise substantially changing his or her employment circumstances.
  • Employer Retaliation. The nonimmigrant is involved in a dispute regarding the employer’s illegal or dishonest activity as evidenced by, for example, a complaint filed with a relevant government agency or court, and the employer has taken retaliatory action.
  • Other Substantial Harm to the Applicant. Due to compelling circumstances, the nonimmigrant is unable to timely extend or otherwise maintain status, or obtain another nonimmigrant status, and absent continued employment authorization under this proposal the applicant and his or her family would suffer substantial harm.
  • Significant Disruption to the Employer. Due to compelling circumstances, the nonimmigrant is unexpectedly unable to timely extend or change status, there are no other possible avenues for the immediate employment of such worker with that employer, and the worker’s departure would cause the petitioning employer substantial disruption to a project for which the worker is a critical employee.

The one-year EAD card can be renewed only if the individual can show that he or she continues to be the principal beneficiary of an approved EB-1, EB-2 or EB-3 immigrant visa petition and either: (1) the worker continues to face compelling circumstances; or (2) the worker has a priority date that is less than one year from the current cut-off date for the relevant employment-based category and country of nationality in the most recent Visa Bulletin.

The proposal prohibits employment authorization (initial or renewal) if at the time of filing the EAD application, the beneficiary’s priority date is more than 1 year beyond the date on which immigrant visa numbers were authorized to be issued to individuals with the same priority date for the relevant employment-based category and country of nationality. The proposal also prohibits employment authorization if the applicant has been convicted of a felony or two misdemeanors.

The proposal requires biometrics and payment of biometrics fee. Also, it extends employment authorization eligibility to those dependent spouses and children who are also present in the United States in nonimmigrant status, but only if the principal spouse or parent is granted employment authorization under this rule and such authorization has not been terminated or revoked.

Note: Obtaining an EAD under this provision would require relinquishment of nonimmigrant status, thus restricting the ability to change status in the future. Also, the proposal does NOT provide the blanket EAD eligibility for all those with an approved I-140 immigrant visa petition that many immigrant advocates had hoped for.

Employment Authorization (EAD Card) Adjudication

 The proposed regulation authorizes an automatic 180 day extension of EAD of employment authorization if:

  • The individual files a request to renew his or her EAD prior to the expiration date.
  • The individual is requesting renewal based on the same employment authorization category under which the expiring EAD was granted, or the individual has been approved for Temporary Protected Status.
  • The individual either continues to be employment authorized incident to status beyond the expiration of the EAD or is applying for renewal under a category that does not first require adjudication of an underlying application, petition, or request.

The 180-day extension is automatically terminated upon issuance of a decision denying the individual’s renewal application, upon written notice to the applicant, notice published in the Federal Register, or any other applicable authority.

The expired EAD, in combination with a Notice of Action (Form I-797C) indicating timely filing of the renewal EAD application would be considered an unexpired EAD for purposes of complying with Employment Eligibility Verification (Form I-9) requirements.

The proposal removes the current regulatory requirement that DHS complete the adjudication of EAD applications within 90 days of receipt and the requirement that it issue interim EADs with validity periods of up to 240 days when such an application is not adjudicated within the 90-day period.

DHS will instead address processing timeframes through operational policy guidance that reinforces the Department’s continued commitment to a 90-day processing timeframe and provides recourse to individuals whose case is nearing the 90-day mark, including the ability to contact USCIS to request prioritized processing.

Note: DHS cannot process EAD applications in a timely basis and their approach to “fixing” the problem is to remove the 90-day mandate and treat EAD extension applications like H-1B extensions for I-9 purposes. This should work for those seeking an EAD extension but is likely bad news for those filing an initial EAD application such as newly arrived L-2 spouses.

Comment » | Department of Homeland Security, H-1B, I-129, I-140, I-485

When H-1B Workers Complete a Team, Everyone Wins

August 18th, 2015 — 4:22pm

Finding the right employees is an ongoing challenge for most companies. As workers come and go, knowledge and skillsets shift across teams. And with more specialized skills, it’s even harder to find the right talent, especially when limited by geography.

As a result, many companies recruit highly-skilled H-1B visa workers to complement their existing workforces and fill the gaps that pose barriers to growth. Filling these positions helps companies unlock their full potential and increase productivity. The results? Increasingly, economists and companies report that more H-1B visa holders translate to more jobs for native-born workers, higher wages and overall economic growth.

Even when unemployment trends higher, the U.S. experiences a continuing shortage of knowledge workers in the STEM fields of science, technology, engineering and math. In response, Congress created the H-1B program in 1990 to help companies fill this need by sponsoring visas for qualified knowledge workers. Currently, 65,000 visas are granted annually, plus an extra 20,000 for workers with advanced degrees earned from U.S. universities. However, demand for these workers continues to far outstrip supply.

When companies need to fill STEM-related positions, they struggle to find native-born workers with the right skills. Based on 2011 data, the Brookings Institute found that 43 percent of STEM occupations with H-1B requests are reposted on job boards after one month, “implying that they are unfulfilled.” As a result, 90 percent of all H-1B visas seek to fill STEM-related positions. [1]

Once a company assembles a complete team that blends native-born talent with specialized H-1B worker skillsets, everything starts to click. The company can overcome hurdles that previously slowed growth and innovation, leading to greater productivity, higher wages and more jobs.

Economists found that between 1990 and 2010, “growth in foreign STEM workers may explain between 10 and 25 percent of the aggregate productivity growth.” Meanwhile, over the same period, the same study found that increasing foreign STEM workers by one percent of total employment increased wages of all native college-educated workers by four to six percent.[2]

According to the American Enterprise Institute and Partnership for a New American Economy, every 100 H-1B workers were associated with an additional 183 jobs for native-born workers, leading the study to conclude that more H-1B visas “correspond to greater job opportunities for U.S.-born workers.” Indeed, Bill Gates reported a greater effect within Microsoft, noting, “For every H-1B hire we make, we add on average four additional employees to support them in various capacities.”[3]

For smaller technology companies, the impact can be more extreme. Tech companies with fewer than 5,000 employees report that recruiting an H-1B visa holder unlocks the company’s productivity, to the tune of 7.5 new workers for every H-1B position.[4]

When a company has a team on the verge of great things, identifying the missing pieces – and filling those roles – can have a tremendous impact on the whole enterprise. Smartly leveraging the H-1B visa program to complement native-born employees can improve fortunes for all, resulting in greater productivity, higher wages, more jobs – and more success.

 

 

 

Access resources

http://immigrationimpact.com/2015/08/03/h-1b-workers-compliment-native-born/

http://www.brookings.edu/research/papers/2013/05/10-h1b-visas-stem-rothwell-ruiz

http://www.immigrationpolicy.org/just-facts/h-1b-visa-program-primer-program-and-its-impact-jobs-wages-and-economy

[1] Rothwell, Jonathan and Neil G. Ruiz, “H-1B Visas and the STEM Shortage.” The Brookings Institute, May 10, 2013. http://www.brookings.edu/research/papers/2013/05/10-h1b-visas-stem-rothwell-ruiz

[2] Anderson, Stuart. “H-1B Visas Essential to Attracting and Retaining Talent in America.” National Foundation for American Policy – May 2013. Study conducted by Economists Giovanni Peri (UC, Davis), Kevin Shih (UC, Davis), and Chad Sparber (Colgate University).

[3] Anderson, Stuart. “H-1B Visas Essential to Attracting and Retaining Talent in America.” National Foundation for American Policy – May 2013

[4] Nowrasteh, Alex. “H1-B Visas: A Case for Open Immigration of Highly Skilled Foreign Workers.” – Competitive Enterprise Institute, October 2010. https://cei.org/sites/default/files/Alex%20Nowrasteh%20-%20H1-B%20Visas.pdf

Comment » | H-1B, Immigration reform

Decreasing American Unemployment by Hiring Foreign Workers

June 23rd, 2015 — 2:49pm

In the U.S., the topic of employing foreign-born workers can cause a bit of a divide, with some leaning more for it and others against it. For those who may oppose employing these workers, it often comes down to the belief that they are taking jobs away from U.S.-born citizens. Recent research, however, finds that this is not necessarily the case.

The H-1B visa program aims to offer employment to foreign professionals whose occupations call for highly-educated candidates. Each year, the U.S. makes 65,000 visas available to foreign-born workers, with an additional 20,000 for those who hold a Master’s or Doctorate from a U.S. university.

This may seem like enough visas, especially considering the recent high levels of unemployment in the U.S., but research shows that increasing the number of visas for foreign-born workers would actually increase the total number of jobs. In fact, estimates show more than 230,000 jobs could have been created for U.S. born workers between 2007 and 2008 had the hundreds of thousands of visas that were to be put in a lottery not been rejected. Looking ahead, it is estimated that 1.3 million new jobs may be created by 2045 if the numbers of H-1B visas per year is increased.

The reason for this? Many of these jobs are in the fields of Science, Technology, Engineering and Math (STEM). Not only is unemployment is extremely low in STEM occupations, showing an unmet need for labor, but the economic impact of these knowledge jobs increases both the overall number of jobs and the GDP. According to a report prepared by Regional Economic Models, Inc., an increase in H-1B visas could create an estimated 1.3 million new jobs and add around $158 billion to the GDP by 2045.

It is not solely STEM jobs that are calling for H-1B employees. Along with research universities, many companies across the country have a demand for these workers — companies like Caterpillar Inc., Bank of America and the Mayo Clinic to name a few. And with more H-1B petitions comes more wage growth. According to the American Immigration Council, the Computer Systems Design and Related Services category saw a “5.5 percent wage growth since 1990” and a “7.0 percent wage growth since 2009.”

With issues such as unemployment at the forefront of many Americans’ minds, perhaps its time to change how we look at foreign-born workers. Allowing for more H-1B visas isn’t a complete solution, but it would definitely create more positive effects for all involved.

Comment » | H-1B, Immigration reform

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