Employers can request that USCIS predetermine that they meet the requirements for certain nonimmigrant and immigrant employment-based visa categories under a new pilot program announced by the Department of Homeland Security (DHS) on March 3, 2016.

The agency’s stated purpose of this program is to streamline the visa process by reducing costs, paperwork, and delays in case processing.

The program would allow a select group of employers to create profiles in the web-based “Known Employer Document Library” (KEDL) and upload documents relating to the relevant requirements. USCIS officers will review the profiles to determine if the employer meets the requirements for certain visa classifications. If the USCIS approves the Known Employer for filings under the specified visa classification, then the Known Employer can proceed with filing individual employee petitions without having to resubmit all of the company information. Documents uploaded into the KEDL also will be available for review by CBP and DOS officers in support of their own adjudications.

The program also will strive to promote consistency in the adjudication of employment-based petitions and provide greater support to CBP and DOS for greater efficiency and consistency at ports of entry and consular posts.

The employment-based visa categories included in this program are:

Nonimmigrant Work Visa Categories:

  • H-1B
  • L-1B
  • L-1A
  • TN

Employment-Based Immigrant Visa Categories:

  • EB-1(B) – Outstanding Researchers and Professors
  • EB-1(C) – Multinational Managers and Executives

Currently, the following five employers have confirmed participation in this limited, invitation-only program.

Jackson Lewis will continue to monitor the progress of this program. If you have any questions about streamlining your company’s immigration case filings and minimizing paper and costs, please contact one of our Jackson Lewis Immigration attorneys for more information.

The H-1B visa category is the most popular nonimmigrant work visa category in the U.S. under which employers sponsor skilled, professional workers for employment. This is largely because it allows foreign graduates in the U.S. for university undergraduate and graduate education to work in the U.S. after graduation. H-1B regulations stipulate that to qualify for an H-1B visa, the employer must have a professional position that requires at least a Bachelor’s degree (or equivalent) in a specific field, and that the candidate meets that requirement.

Approximately 65,000 H-1B visas are available each year, and an additional 20,000 are available to foreign nationals who have graduated from a U.S. Master’s program, or any other U.S. graduate degree program (e.g., Ph.D. and M.D.). For the last several years, more petitions have been filed than H-1B visa numbers have been available, and a regulated, mandatory lottery was applied to determine which, cases would be accepted for H-1B processing.

In 2015, just over a third of H-1B cases filed under the visa cap for fiscal year 2016 were accepted for processing. Nearly 150,000 cases were rejected under the lottery. No improvement is expected this year.

Unfortunately, the situation can get worse. Over the last five months, members of both houses of Congress have proposed legislation to tighten H-1B regulations. These bills propose to:

  • reduce the number H-1B visas available each year (from 65,000 to 50,000);
  • bar employers from using the H-1B program to sponsor foreign workers within two years of a layoff, furlough, or employees strikes;
  • bar employers from using the H-1B program to bring foreign workers to the U.S. for training, then transfer them overseas and lay off the U.S. workers who trained them; and
  • require employers to make a good-faith effort to recruit U.S. workers before filing H-1B petitions to hire foreign workers.

One bill also proposes to eliminate the Optional Practical Training program, which allows foreign nationals who graduate from a U.S.-degree program to work in the U.S. for up to one year after graduation.

The fiscal year 2017 H-1B visa filing window opens on April 1, and USCIS will accept all cases filed until April 7, 2016. During April, USCIS will conduct the lottery for all Master’s Cap cases, and then for all remaining H-1B cases filed. Cases that are rejected for processing will be returned. Any foreign national graduate working on OPT and awaiting change to H-1B status may continue working, even after the OPT work authorization expires, until a decision is made on his or her H-1B case.

The Immigration and Reform Control Act (IRCA) requires all employers to complete a Form I-9 for all employees hired after November 6, 1986. The law prohibits an employer from knowingly hiring or continuing to employ an unauthorized alien. The severity of the consequences awaiting employers who violate this law was evident recently in two cases in Nebraska federal court. U.S. v. Younes and U.S. v. Kearney Hospitality Inc.

A hotel operator, Paul Younes, has pled guilty to charges that he knowingly hired and continued to employ an individual who was not authorized to work in the U.S. The employee was a housekeeping supervisor who quit one of the hotels owned by Mr. Younes to avoid a social security investigation. The government claimed she began working for a second, related hotel under another false identity with the assistance of Younes. Younes reclassified the housekeeper as an “independent contractor” for payroll purposes (skirting the need for Form I-9), though she was the only person in the housekeeping department who worked under that status.

Younes and his company were each charged with and pled guilty to violating the prohibition on knowingly hiring or continuing to employ an unauthorized alien. Younes now faces up to six months in prison and a $3,000 fine; the company is looking at five years’ probation and a potential fine of $500,000.

A “knowingly hiring” violation can be based on an employer’s actual or constructive knowledge. Therefore, if an employer has knowledge of facts that would lead a person exercising reasonable care to know about the employee’s unauthorized status, it may be said to possess the constructive knowledge needed to support a violation. While any number of known facts could establish constructive knowledge, the most fundamental (and the first listed in the regulations) is when an employer fails to properly complete an Employment Eligibility Verification Form, I-9. Simply, employers invite trouble by ignoring their obligation to complete I-9s. With the government clamping down on misclassification of employees as independent contractors, employers cannot avoid the I-9 verification requirement without risking wage and hour, IRS and civil and criminal immigration consequences. At the end of the day, one little two-page form has a lot of power.

The United States has begun implementing changes to its visa policies that will make it harder for some travelers to enter the country under the Visa Waiver Program (VWP). One result of the changes means certain countries’ nationals are no longer eligible to enter the U.S. under the VWP.

The VWP allows eligible nationals of 38 VWP countries to travel temporarily, for up to 90 days, to the U.S. without a visa. Effective January 21, 2016, changes based on the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 require certain nationals of VWP countries to apply for a visa at a U.S. embassy or consulate.

Affected persons are nationals of VWP countries who have visited Iran, Iraq, Syria, or Sudan on or after March 1, 2011, and nationals of the VWP countries who have dual citizenship from any of these four countries. Under these changes, a traveler’s currently valid Electronic System for Travel Authorization (ESTA) will be revoked if he or she has previously indicated holding dual nationality with one of these four countries on his or her ESTA application.

An exception exists for those who travelled to one of these four countries for military or diplomatic purposes on behalf of a VWP country. The Act also authorizes the U.S. Department of Homeland Security to grant a waiver on a case-by-case basis if the agency determines that doing so would be in the interest of U.S. law enforcement or national security.

The U.S. Citizenship and Immigration Services (USCIS) has proposed new guidance for adjudicating O-1 visa petitions for athletes and other individuals of extraordinary ability in certain fields. If the proposal becomes effective, athletes will have greater flexibility in satisfying the O-1 visa criteria.

Under current USCIS regulations, an athlete may qualify for an O-1 visa by demonstrating extraordinary ability in his or her field in one of three ways: (A) by reason of a nomination or receipt of a significant national or international award; (B) by meeting a certain number of listed criteria; or (C) by submitting “comparable evidence” when the listed criteria in part (B) do not readily apply.

Part (A) is fairly straightforward. For example, winning a Gold Glove award would qualify the athlete. The same goes for league MVP or an Olympic gold medal. If an athlete does not meet Part (A), Part (B) requires meeting at least three of the USCIS criteria,  such as receiving lesser but still nationally or internationally recognized prizes or awards, membership in associations requiring outstanding achievements, being written about in major media, making athletic contributions of major significance, being employed in a critical capacity for a prestigious organization, and commanding a high salary.

If an athlete does not meet Part (B), then Part (C), the catch-all “comparable evidence,” aka “alternate but equivalent,” should be considered. But here’s the rub: the regulatory text is not clear as to exactly when comparable evidence may be considered. Can applicants go directly to Part (C) or must they meet a certain number of the Part (B) criteria before comparable evidence could be considered? Moreover, must an athlete show that all or a majority of the Part (B) criteria do not readily apply?

The proposed guidance attempts to clarify this ambiguity, stating that comparable evidence can be considered on a criterion-by-criterion basis. That is, to an athlete need not first satisfy a minimum number of the Part (B) criterion before moving on to Part (C). An athlete must show only that any single criterion does not readily apply to his or her field before offering comparable evidence as to that criterion, as well as why the submitted evidence is “comparable” to the Part (B) criterion listed in the regulations. In addition, a petitioner relying upon comparable evidence still must establish the beneficiary’s eligibility by satisfying at least three separate evidentiary criteria, as required under the regulations.

According to the proposal, even if awards aren’t given for the league’s best on-base percentage or for singlehandedly increasing ticket sales, it’s certainly comparable evidence. It’s time to start thinking outside the batter’s box. This proposed guidance would make the path to an O-1 visa a little clearer.

Recognizing the significant hardship a regulatory gap would cause current and future participants in the STEM OPT program, the U.S. District Court for the District of Columbia has given the Department of Homeland Security an additional three months to issue a new rule to cure the defects in the STEM OPT rule extension that the court vacated on August 12, 2015.

The August vacatur was to take effect on February 12, 2016, unless DHS issued a new rule to cure the defects found. Now, DHS will have until May 10, 2016.

On August 18, 2015, the Washington Alliance of Technology Workers (WashTech) filed a notice of appeal with the Court of Appeals for the District of Columbia Circuit challenging the scope of DHS’s regulatory authority in initially establishing the STEM OPT benefits in 2008.

On January 11, 2016, WashTech filed a motion to reject DHS’s previous request for extension, arguing the district court had no jurisdiction to extend its stay of vacatur because WashTech’s pending appeal with the D.C. Circuit Court automatically divested the lower court of jurisdiction to grant the relief requested by DHS, unless the district court first issued an indicative ruling and sought to remand the case from the circuit court. DHS argued that the district court has discretion under Federal Rules of Civil Procedure Rule 60(b) to relieve a party from a final order for a series of specific, enumerated reasons or for “any other reason that justified relief.” See Murray v. Dist. of Columbia, 52 F.3d 353, 355 (D.C. Cir. 1995).

DHS argued its unexpected inability to promulgate a replacement rule before the stay’s expiration constitutes extraordinary circumstances, citing an unexpected and unprecedented public response to its October 19, 2015, Notice of Proposed Rulemaking. F.R.C.P. Rule 60(b)(5) provides that a party may ask a court to modify or vacate a judgment or order if a significant change either in factual conditions or in law renders continued enforcement detrimental to the public interest.

In its January 23, 2016, Order, the district court stated that although a filing of notice of appeal would confer jurisdiction on the court of appeals, the district court only surrenders “its control over those aspects of the case involved in the appeal.” The court concluded that it retained jurisdiction over DHS’s motion and need not seek remand as the extension of stay would not affect the issues on appeal. In other words, a three-month extension would protect D.C. Circuit’s jurisdiction, possibly allowing the circuit court to rule on the stay’s propriety before that issue becomes moot.

The court found no merit to WashTech’s argument that the changes proposed by DHS — or the uncertainty those changes have occasioned — disqualify DHS from the limited relief it sought.

DHS said the STEM OPT program’s approximately 23,000 participants, 2,300 dependents of participants, 8,000 pending application for extensions, and 434,000 foreign students who might be eligible for STEM OPT authorizations would be adversely affected if the extension is not granted. Similarly, the U.S. tech sector and educational institutions would suffer competitively due to the resultant loss of talent. The court said the limited modification requested in this case is warranted.

The U.S. Supreme Court agreed today to hear a case challenging President Barack Obama’s executive action on immigration. The Supreme Court will decide whether President Obama can proceed with plans to defer deportation and provide work authorization to millions of individuals currently in the United States without lawful status.

The Supreme Court granted certiorari in Texas et al. v. U.S. et al. today and indicated that it will take up an additional issue on whether the Obama administration’s action violates a constitutional clause that requires the president to faithfully execute the law (i.e., the Take Care Clause in Article II of the Constitution). The Court will hear arguments this April and a decision is likely to be issued this June, before the end of the Court’s current session.

In November 2014, the Obama Administration issued new policies allowing certain undocumented immigrants to apply for deferred action and work authorization allowing them to remain and work legally in the United States.  These programs were to apply to certain individuals brought to the U.S. when they were under the age of sixteen (Deferred Action for Childhood Arrivals), and also to undocumented individuals who are parents of U.S. citizens or lawful permanent resident children (Deferred Action for Parents of Americans and Lawful Permanent Residents).  Twenty six states filed suit to stop these policies from being implemented in December 2014. The United States District Court for the Southern District of Texas issued a preliminary injunction in February 2015, and, on November 9, 2015, the U.S. Court of Appeals for the Fifth Circuit affirmed the injunction. The Obama administration petitioned the Supreme Court on November 20, 2015 seeking immediate review of the Fifth Circuit’s decision

Each year, USCIS issues 65,000 H-1B visas and 20,000 “master’s cap” visas. April 1, 2016 is he first date on which an H-1B petition may be filed for FY 2017, in anticipation of an October 1, 2016 start date. Last year, USCIS accepted 233,000 petitions in the first week. A lottery was conducted and over 60% of all petitions were rejected.

What does this mean?

Employers need to be prepared to file H-1B petitions on April 1. Now is the time to review your employees’ immigration status and start talking to your managers and HR teams to identify employees who may need H1B sponsorship in 2017.   Many possible candidates may be working pursuant to an Optional Practical Training (OPT) work authorization card that may not expire until sometime in 2017. We nevertheless strongly suggest filing petitions for these employees for this fiscal year as well to maximize their chance for selection in the H-1B lottery.

On January 13, 2016, the Department of Homeland Security (“DHS”) released an advance copy of an updated rule providing additional flexibility and enhanced opportunities for certain highly skilled workers. It covers workers who are in the U.S. in H-1B1 (from Chile and Singapore), E-3 (from Australia), temporary workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transition Worker (CW-1), and immigrant classification for outstanding professors and researchers (EB-1).

Current regulation (8 CFR § 2741.12(b)(20)) allows other high skilled workers in the following nonimmigrant visa categories to continue to work for up to 240 days beyond their current expiration date as long as they file a timely extension request before the expiration date:

  • H-1B specialty occupation workers,
  • L-1 intracompany/multinational corporation transferees,
  • O-1 extraordinary ability aliens,
  • E-1/E-2 treaty traders and investors,
  • TN NAFTA professionals, and
  • Certain international organizational workers and so on.

Because the nonimmigrant visa categories of H-1B1 and E-3 were created after the prior regulation was published, visa holders in these categories have not been able to continue to work unless they submitted their extension requests early or paid an additional $1,225 USCIS premium processing fee for expedited services.

Additionally, DHS added in its regulation allowing immigrant visa (“green card”) applicants to include important patents or prestigious peer-reviewed funding grants as evidence to establish their eligibility as an internationally recognized outstanding professor or researcher in their specialized academic field. Under 8 CFR 204.5(i)(3)(i), USCIS would accept an applicant’s claim to have met the statutory requirement for having satisfied two of the six criteria, such as receipt of major prizes or awards, original authorship of scholarly articles, serving as a judge of the work of others. Although important patents or prestigious peer-reviewed funding grants previously could be used to support the international recognition criterion for final merits review by USCIS, DHS has now codified this as threshold eligibility evidence to meet the statutory requirement.

The final rule is scheduled to be published in the Federal Register on January 15, 2016 with an effective date of February 16, 2016.

The Department of Homeland Security has issued proposed regulations to address retention and portability of high-skilled workers in the U.S. in response to President Barak Obama’s November 2014 directives to relieve the worst ills of the immigration code.

The proposed changes target U.S. businesses and their employees. According to DHS, the laws are “intended to better enable US employers to employ and retain high-skilled workers who are beneficiaries of employment-based immigration visa petitions, while increasing the ability of such workers to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.” However, DHS clearly indicates that most of the changes simply codify current practices. Many of the proposed changes will have no practical effect, including the seemingly most dramatic change relating to work authorization for certain individuals with approved I-140s.

Highlights of the proposed regulations include provisions:

Codifying and clarifying how to extend beyond the sixth year of H-1B, when an H-1B nonimmigrant can change jobs or employers without affecting his or her approved immigrant visa petition, how to calculate H-1B recapture time, and who qualifies as “cap-exempt” employers.

  1. Codifying that a beneficiary may port and retain after 180 days from approval the priority date of an approved I-140, regardless of whether the I-140 petitioner has withdrawn the approval. Exception: if the I-140 is withdrawn for fraud or misrepresentation or if the underlying labor certification is invalidated.
  2. Offering a one-time 60-day grace period, during an authorized validity period, for individuals in E-1, E-2, E-3, H-1B, L-1, or TN status, where employment ends due to voluntary or involuntary termination or lay off. These individuals are not authorized to work during the grace period.
  3. Extending the 10-day grace period granted before and after H-1B status to individuals in E-1, E-2, E-3, L-1, or TN status. These individuals are not authorized to work during the grace period.
  4. Permitting issuance of one-year Employment Authorization Documents (EAD) for individuals in E-3, H-1B, H-1B1, L-1 or O-1 status with an approved I-140 and no available visa numbers if the individual can show compelling circumstances. The definition of compelling circumstances is not included in the regulations, but DHS includes examples, such as serious illnesses and disabilities, employer retaliation, and other substantial harm to the applicant or to the employer. If these nonimmigrants start to work pursuant to the EAD, they are considered to have abandoned their nonimmigrant status and cannot adjust status to permanent residence in the U.S. The beneficiary must apply for an immigrant visa abroad. EAD also is available to spouses and children, but can be granted EADs only if the principal beneficiary has been approved for an EAD. Renewals are allowed in certain circumstances.
  5. Eliminating the 90-day processing time required of USCIS for EADs and automatically extending most EADs 180 days beyond the expiration if the extension was timely filed, the extension is based on the same eligibility, and the eligibility of the EAD extends beyond the expiration of the EAD.

 

Jackson Lewis will provide further updates as warranted.