C&R Archives

Trump’s “Buy American, Hire American” Executive Order

Many of our clients are concerned about the President’s most recent Executive Order as it pertains to the immigration system, specifically the H-1B Temporary Worker category.

The Executive Order directs the heads of the agencies involved (DHS, USCIS, and DOL) to develop proposals in the coming months to modify the program to ensure that the most highly skilled and highly paid applicants have access to the H-1B visa. This will involve updating regulations, memos and other guidance to comport with the objectives of the Order. This will take time.

In the short term, nothing has changed as a result of this Order.

Also, USCIS announced on April 7, 2017 that it has received enough H-1B petitions to reach the statutory cap of 85,000 visas for fiscal year (FY) 2018 for both the regular cap and the master’s cap. As such, cap-subject employers may only file H-1B transfer applications or extension requests for applicants who have already been counted in a prior year’s cap.

Academic institutions and related non-profit organizations not subject to the cap can also continue to file until new regulations are adopted and implemented.

Please contact our office if you have any questions.

USCIS Updates Employment-Based Visa Regulations

USCIS published a Final Rule in the Federal Register on November 18, 2016 implementing a number of provisions proposed at the end of 2015. USCIS described the stated goal of the rule changes as follows:

“These changes are primarily intended to better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of employment-based immigrant visa (Form I-140) petitions, while increasing the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.”

The most important provisions of the new regulations are set forth below.

Retention of I-140 Priority Dates

The Beneficiary of an approved I-140 Visa Petition is entitled to retain the Priority Date in connection with a future I-140 in any employment category regardless of how much time has passed since the Petition was approved, unless the Petition was revoked for fraud, misrepresentation, or “material error.”

Retention of I-140 Petition Approval

In addition to retaining the Priority Date, the Petition remains approved despite withdrawal by the Petitioner or termination of the Petitioner’s business, if the withdrawal or termination of the Petitioner’ business occurs more than 180 days after the Petition was approved OR more than 180 days after an I-485 Adjustment of Status has been filed.

Employment Authorization (EAD) based on compelling circumstances

An EAD valid for one year may be available for the Beneficiary of an approved I-140 and family members if (1) the applicant is in E-3, H-1B, H-1B1, O-1 or L-1 status (2) there is no visa number available and (3) the applicant can show “compelling” circumstances.” While not defined, some examples provided include serious illness or disability, employer dispute or retaliation, serious harm to the applicant, and substantial disruption to the employer.

Applicants granted an EAD based on compelling circumstances will not be maintaining nonimmigrant status and will therefore generally be ineligible for Adjustment of Status. However, they will not accrue unlawful presence while remaining in the US and working with the EAD.

Automatic Extension of Expiring EADs

An application to extend an EAD may be filed up to 180 days prior to expiration. For certain nonimmigrant classifications, the EAD is automatically extended for up to 180 days beyond the stated expiration date provided a request for extension is timely filed. Unfortunately, this provision does not extend to all classes of foreign nationals who are eligible for EADs, including L-2 spouses and qualifying H-4 spouses. NOTE: DHS has eliminated the requirement that the USCIS adjudicate I-765 EAD applications within 90 days.

Supplement J to I-485

This new form will be required to confirm existence of a valid job offer if claiming I-485 portability, and can also be requested by the adjudicator to confirm the original I-140 job. This form will solicit very specific information about the job offer and the employer to insure that the offered position is consistent with the original approval.

H-1B Visa Status

The Beneficiary of an H-1B Petition may start work with a new Petitioner if a new H-1B Petition is filed while maintaining H status, OR while a timely filed Petition Extension is pending.

An extension of stay beyond the normal six year limitation in one year increments is available if a Labor Certification or I-140 Visa Petition is filed at least 365 days prior to the start date requested in the petition, even if that date is less than 365 days before the 6 year limitation is reached.

An extension of stay beyond the normal six year limitation in three year increments is available for H-1B workers who are the beneficiaries of an approved I-140 Petition and for whom, at the time the H-1B extension is requested, an immigrant visa number is not available due to per country limitations.

A position requiring state licensing may be approved without the license if the job duties can be fully performed under the supervision of a licensed professional OR failure to obtain a license is due to technical reasons such as lack of a Social Security number or employment authorization.

A Beneficiary counted under the H-1B cap may recapture any time spent outside the US in order to utilize the full 6 years available.

A Beneficiary counted under the H-1B cap who is absent from the U.S. for more than one year has the option to recapture time remaining within the six year limit without being subject to the cap. The Beneficiary also has option to seek a new 6 year period of stay by subjecting to the cap.

Grace Periods for Nonimmigrant Workers

A 10 day grace period allowed for E-1, E-2, E-3, L-1, and TN before and after their authorized period of stay. This is the same as the existing rule for H-1B, O-1, and P status.

A 60 day grace period for E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, and TN is provided upon termination of employment. This is limited to one 60 day period per authorized validity of underlying petition.

USCIS Filing Fees Increase December 23, 2016

USCIS has increased filing fees for most petitions and applications postmarked or filed on or after December 23, 2016. Some of the increases are substantial. Following is a list of the new fees for some of the most commonly used petitions and applications:

Form I-90 Replace Green Card $540*
Form I-129 H-1, L-1 or TN Petition $460
Form I-130 Relative Visa Petition $535
Form I-140 Employment Visa Petition $700
Form I-485 Adjustment of Status $1,225*
Form I-485 Adjustment of Status-child $750
Form N-400 Naturalization $725*
Form I-131 Advance Parole $575
Form I-131 Reentry Permit $660*
Form I-539 Extension of Stay or C/S $370
Form I-751 Remove CR Status $680*

*includes biometrics fee

Diversity Visa Lottery for FY 2018 Underway

The Department of State has announced the procedures for the FY 2018 Visa Lottery, currently underway. Detailed information is available on the Department of State website at:

https://travel.state.gov/content/dam/visas/Diversity-Visa/DV-Instructions-Translations/DV-2018-Instructions-Translations/DV-2018%20Instructions%20English.pdf

The Visa Lottery enables 50,000 individuals from most countries of the world an opportunity to obtain a green card provided they meet certain minimal qualifications. In addition, they must not be “excludable” from the U.S. as a result of such factors as criminal record, immigration violations, etc. For fiscal year 2018, 50,000 DVs will be available.

Applicants are chosen by a computer-generated random drawing after submitting a simple application and photograph via an online system established by the State Department. The visas are distributed among six geographic regions, with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. No single country may receive more than seven percent of the available Diversity Visas in any one year.

For DV-2018, natives of the following countries are NOT eligible to apply because the countries sent more than 50,000 immigrants to the United States in the previous five years:

Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

Persons born in Hong Kong SAR, Macau SAR, and Taiwan are also eligible.

For DV-2018, natives of Ecuador are now eligible to enter the program.

A “native” is a person born in a country, or entitled to be “charged to” the country under the rules of “alternate chargeability.” Under the rules of alternate chargeability, an alien applicant born in an ineligible country may “use”

• the country of birth of his or her spouse, if the alien applicant is married to a native of an eligible country-provided the spouse is eligible for a visa and will immigrate to the U.S. with the applicant; or

• the country of birth of either parent, if the alien applicant was born in a country in which neither of his or her parents had established a residence at the time of the applicant’s birth.

The spouse or children (a “child” is an unmarried person under 21 years of age) of a successful applicant will also be eligible for immigrant status, regardless of their place of birth.

If selected, applicants will be instructed to apply for an immigrant visa at the U.S. Consulate in their country of residence. However, applicants who are in the U.S. will, in many cases, be eligible to adjust their status through a local Immigration office.

A successful applicant must prove that he or she has at least a high school education or its equivalent, or two years of work experience during the past five years in a job which, according to the Department of Labor’s O*Net OnLine database, requires at least two years of training or experience. An applicant must also establish that she/he meets the usual qualitative requirements for entry to the U.S. For example, an applicant with a criminal record may be barred.

Entries for the DV-2018 DV program began on noon Eastern Daylight Time (EDT) (GMT-4), Tuesday, October 4, 2016, and will close at noon, EDT, Monday, November 7, 2016. Applicants must submit entries electronically during this registration period using the electronic DV entry form (E-DV) or DS-5501 at www.dvlottery.state.gov. Paper entries will not be accepted. We strongly encourage applicants not to wait until the last week of the registration period to enter. Heavy demand may result in website delays. No entries will be accepted after noon, EDT, on November 7, 2016.

Beginning May 2, 2017, DV-2018 entrants will be able to use their unique confirmation number provided at registration to check online through Entry Status Check at http://www.dvlottery.state.gov to see if their entry was selected. Successful entrants will receive instructions for how to apply for immigrant visas for themselves and their eligible family members. Confirmation of visa interview appointments will also be made through Entry Status Check.

We believe that anyone with access to the internet can complete the entry process without hiring an attorney or paying a fee to a third party, though it may be worthwhile for some individuals who are not computer savvy to pay a small fee to have someone assist them with the process. PAYMENT OF A FEE TO A THIRD PARTY WILL NOT INCREASE YOUR CHANCE OF BEING SELECTED.

However, we strongly recommend that anyone selected in the lottery consult with an experienced immigration attorney to determine the best course of action and to identify any issues which may derail their application for a green card.

Please feel free to contact our office if you have any questions.

Backlogs Grow in India Nonimmigrant Visa Processing

The State Department has advised that wait times for a nonimmigrant visa appointment at Posts in India have grown substantially. Wait times at the various posts range from 75 to 100 days.

Applicants seeking a petition-based visa (H-1 or L-1) must have a petition approved before requesting an appointment.

In light of this, Indian citizens contemplating travel home and who will require the issuance of a new entry visa are advised to consider avoiding unnecessary travel until the situation approves.

Expedited appointments may be available for cases involving urgent humanitarian issues (e.g. medical issues) or true business emergencies. Applicants should be prepared to explain why advance planning was not possible.

Alternatives to the H-1B Visa

USCIS has recently announced that it has completed the random selection process for cap-subject H-1B Petitions filed during the first five days of April. The Service will begin returning cases that were not selected to Petitioners in the coming days along with all filing fees tendered.

H-1B visas are still available in the following circumstances:

Extensions of H-1B status for aliens currently employed in H-1B status by the petitioner

New employees who currently maintain H-1B status with another employer, OR who have previously been in H-1B status in the past six years and have not subsequently been absent from the U.S. for more than one year [note: if the prior H-1B employer was an exempt employer as described below, the new petition does require a number under the cap and can only be filed when H-1B visa numbers are available].

H-1 Petitions filed on behalf of citizens of Chile and Singapore (based on treaty obligations).

New Petitions filed by “Exempt” Petitioners: the following organizations are exempt from the “cap” and may obtain H-1B status for new employees at any time:

institutions of higher education

a nonprofit organization related to or affiliated with an institution of higher education

a nonprofit research organization or governmental research organization

(These exempt classes are often referred to informally as “educational H-1B” cases, though this label is somewhat misleading.)

Note carefully: this does not exempt all nonprofit organizations; only those affiliated with an institution of higher education

Alternatives to the H-1B

The unavailability of private H-1B visa numbers will require a closer look at other visa alternatives. Briefly, these include:

TN visa status for citizens of Canada or Mexico

L-1 status for employees who have worked abroad for the same or affiliated employer for at least one year

E-1 (Treaty Trader) for citizens of countries having a commercial treaty with the US who are engaged in a substantial amount of trade principally with the country of nationality, or employed by a company of the same nationality engaged in such trade.

E-2 (Treaty Investor) for citizens of countries having a commercial treaty with the US who have invested a substantial amount of money in a US business they are managing or directing, or employed by a company of the same nationality which has made a substantial investment in the US.

E-3 visa status for citizens of Australia

J-1 status available to employers who have their own J-1 visa program in place (these are generally academic institutions)

J-1 status through third party sponsors where the goal of the employer is to train the visa applicant

O-1 visa status for aliens of extraordinary ability

Finally, some applicants who might have been considered for H-1B status may have the ability to obtain an Employment Authorization Document (EAD) independent of the prospective employer. There are many examples, the most common of which are the following:

The H-4 spouse of an H-1B who will, effective this month, be eligible for an Employment Authorization Document (EAD provided the H-1B principal is in the latter stages of a green card application.

The L-2 dependent spouse of an L-1 who is eligible to obtain an Employment Authorization Document (EAD

An alien whose spouse is applying for a green card through his or her employer and who as a result is already an applicant for “Adjustment of Status.”

An alien who may have (or will consider) filing a “self petition” for a green card as an alien of Extraordinary Ability or on the basis of a National Interest waiver

An alien who has married or will marry a U.S. citizen and will be eligible to obtain an EAD on that basis.

USCIS FInal Rule on STEM OPT Extensions

USCIS has today published its Final Rule governing Optional Practical Training (OPT) for F-1 students who have obtained a degree in a STEM field (Science, Technology, Engineering, and Math). Highlights of the Final Rule are as follows:

A STEM extension may be granted for an additional 24 months AFTER an initial 12 month period of OPT.

The extension may be based on the student’s most recent degree, or on a STEM degree earlier in his/her academic career.

The employer must be enrolled in E-Verify.

The employer must work with the student to implement a formal training program to insure that the employment will augment and benefit the student’s education. This information will be provided on a new Form I-983, Training Plan for STEM OPT Students.

The employer must attest that (1) it has sufficient resources and personnel to provide appropriate training (2) the student will not replace a full or part-time US worker and (3) the opportunity will help the student achieve his or her training objective.

The student and their Designated School Official (DSO) must comply with several new reporting requirements to insure that progress is being made toward their training objective.

DHS may conduct site visits after providing 48 hours’ notice to the employer to insure compliance with the program. Unannounced site visits may take place in the event of a complaint or other evidence of noncompliance with the program.

Current rules governing STEM extensions remain in effect until May 9, 2016. The new rules are effective on May 10, 2016.

Applications for a STEM extension which are in process and still pending on May 10, 2016 will receive a Request for Evidence, allowing students’ time to amend their applications to comply with the new rules without having to refile.

Please contact our office if you have any questions.

New Requirements for Temporary Entry to Canada

The Government of Canada recently announced a new requirement for foreign nationals who seek to fly to OR transit through Canada by air. Effective March 15, 2016, these travelers must first obtain an Electronic Travel Authorization (“eTA”) prior to embarking on their trip. This requirement does not apply to:

U.S. citizens,
Foreign nationals who already require a visa to enter Canada, or
Entries across a land border or by sea

Lawful Permanent Residents or temporary residents of the U.S. who seek to fly to OR transit through Canada by air must apply for an eTA unless they have a valid visa for entry to Canada or are required to obtain a visa.

For additional information or to apply for an eTA, you may visit the Government of Canada website:
http://www.cic.gc.ca/english/visit/eta.asp
Please feel free to contact our office if you have any questions.

USCIS Final Rule Clarifies Requirements for H-1B1 (Chile and Singapore), E-3 (Australia), and EB-1B (Outstanding Professors and Researchers).

On January 15, 2016 USCIS amended its regulations affecting the above classifications to harmonize the treatment of these individuals with similar categories:

H-1B1 and E-3 individuals seeking an extension of stay in the U.S. may continue to work for up to 240 days following the expiration of their status as long as the petitioning employer filed a timely request for extension of stay which is still pending. This is now consistent with the treatment of the “regular” H-1B category.

Individuals seeking classification as an EB-1B Outstanding Professor or Researcher may submit “comparable evidence” of their claim to international recognition in lieu of, or in addition to, evidence that they meet at least two of the five specific categories specified in the regulation. This is consistent with the regulations governing evidence required for the EB-1A Extraordinary Ability and the EB-2 Exceptional Ability categories.

The effective date of the final rule is February 16, 2016.

Please contact our office if you have any questions.

H-1B Filing Season to Begin April 1, 2016 for October 1 Start Date

Immigration regulations permit the filing of an H-1B petition as early as six months before the intended start date of the employment. Therefore, it will be possible to file H-1B petitions seeking an October 1, 2016 start date for “new” petitions on April 1.

Now is the time to begin preparation of an H-1B petition. Job descriptions and requirements have to be carefully drafted before a Prevailing Wage Determination is sought. The Department of Labor may experience delays in processing the required Labor Condition Application. Organizations that provide wage surveys (where required) or educational evaluations may become backlogged.

If you are considering retaining our office to assist with an H-1B petition, please contact Melissa Glassbrenner (melissaf@costariccio.com) or one of our attorneys as soon as possible.

As before, there are 65,000 H-1B numbers available each year, plus an additional 20,000 for applicants who possess a Master’s Degree from a U.S. university.

Last year, numbers were exhausted within the first couple of days. We expect the same thing to happen this year.

Filing early in April is strongly encouraged in the following situation:

• The applicant is currently working for the employer in student (F-1 OPT) status;

• The OPT employment authorization will expire before October 1;

• The employer is confident of its desire to retain the nonimmigrant worker without interruption beyond the expiration of the OPT status; and

• The applicant is a highly skilled worker who may consider an offer from a competitor who is willing to proceed with an H-1B petition without delay.

Once the new numbers are gone, it will no longer be possible to obtain “new” H-1B status prior to October 1, 2017 unless one of the following exceptions apply.

• “New” employees who currently maintain H-1B status with another employer, OR who have previously been in H-1B status in the past six years and have not subsequently been absent from the U.S. for more than one year [note: if the prior H-1B employer was an exempt employer as described below, the new petition will require a number under the cap and will not be approvable when the numbers run out!].

• “New” employees for a private employer who would normally be subject to the “cap” but who will be employed “at” (on the physical premises of) an exempt employer as described below.

• “New” employees currently employed in H-1B status with an exempt employer as described below who will continue in that exempt employment and who are seeking concurrent, part-time employment with an otherwise cap-subject employer.

• Petitions on behalf of citizens of Chile and Singapore (those numbers remain current even now for the current fiscal year!). There are some features of these Petitions that differ from “regular” H-1B’s.

The following organizations are exempt from the “cap” and may continue to obtain H-1B status for new employees:

• institutions of higher education

• a nonprofit organization related to or affiliated with an institution of higher education. Caution: this does not exempt all nonprofit organizations; only those affiliated with an institution of higher education. During the past year we’ve observed that the Immigration Service has taken a stricter view of what constitutes “affiliation” for this purpose.

• a nonprofit research organization or governmental research organization

Reminder: for existing H-1B workers, employers MUST file an amended petition in order to maintain the worker’s lawful status BEFORE a material change occurs such as:

• A significant change in job duties (e.g. a promotion), or
• A move to a new worksite.

Alternatives to the H-1B

The eventual shortage of H-1B visa numbers will require a closer look at other visa alternatives. Briefly, these include:

• TN visa status for citizens of Canada or Mexico (now available in increments of three years)

• L-1 status for employees who have worked abroad for the same or affiliated employer for at least one year in a qualifying capacity

• E-3 visa status for citizens of Australia

• J-1 status available to employers who have their own J-1 visa program in place (these are generally academic institutions)

• J-1 status through third party sponsors where the goal of the employer is to train the visa applicant

• O-1 visa status for aliens of extraordinary ability

• E-1 (Treaty Trader) and E-2 (Treaty Investor) for citizens of countries having the appropriate treaty with the US.

Further details about these options may be found on our web site at www.costariccio.com.

Finally, some applicants who might have been considered for H-1B status may have the ability to obtain an Employment Authorization Document (EAD) independent of the prospective employer. There are many examples, the most common of which are the following:

• An alien whose spouse is applying for a green card through his or her employer and who as a result is already an applicant for “Adjustment of Status.”

• An alien who may have (or will consider) filing a “self petition” for a green card as an alien of Extraordinary Ability or on the basis of a National Interest waiver

• An alien who has married or will marry a U.S. citizen and will be eligible to obtain an EAD on that basis.

Please feel free to contact us if you have any questions.