All posts by costa riccio

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.

Diversity Visa Lottery Registration Period Ends Soon

The registration period for the DV 2017 Visa Lottery will close at 12 noon EST on November 3, 2015. No applications will be possible after that date.

The online entry form may be found at https://www.dvlottery.state.gov/entry.

For more detailed information about the Diversity Visa Lottery, please visit the Department of State at http://travel.state.gov/content/visas/en/immigrate/diversity-visa/instructions.html.

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

Latest Update on Visa Bulletin Changes

The Visa Bulletin, published monthly by the U.S. Department of State, summarizes the availability of visa (i.e. “green card”) numbers under the employment and family based quota system for the following month. In September 2015 on the October Visa Bulletin the Department began publishing two versions of the chart covering each of the individual categories. The distinction is critical for applicants in backlogged categories who are in the U.S. and are waiting for their “priority date” to be reached so that they can file an Application for Adjustment of Status (Form I-485) with USCIS.

The Application Final Action Date chart: this chart specifies the cut-off date for cases which can be approved during the following month. Prior to September 2015, this was the ONLY chart published and effectively dictated which cases could be filed during the following month.

The Date for Filing Visa Application chart: the new chart specifies the cut-off date for Adjustment of Status cases which can be filed with USCIS during the following month. This chart will typically post cutoff dates that are more recent than the dates on the Final Action Date chart and would therefore allow some applicants to file their applications sooner. This is critical because the filing of the Adjustment of Status application has a number of important consequences, such as the ability of the applicant and eligible family members to obtain an Employment Authorization and Advance Parole document allowing travel abroad.

USCIS has now confirmed the following:

Applicants whose priority date has been reached on the Application Final Action Date chart may count on filing their Adjustment of Status application during the following month.

Applicants whose priority date has been reached on the Date for Filing Visa Application chart MAY be able to file their Adjustment of Status application during the following month but only if this is confirmed by USCIS on their website. They expect to make this decision within a week or so of the publication of each Visa Bulletin.

For the months of October and November 2015 USCIS has confirmed that Adjustment of Status applicants may rely on the Date for Filing Visa Application chart.
For more detailed information about the Visa Bulletin, please visit the Department of State at http://travel.state.gov/content/visas/en/law-and-policy/bulletin.html.

U.S. State Department Travel Advisory

The Department of State is experiencing technical problems with its visa issuance system which makes it impossible to issue visas. Applicants are being advised that the Department is urgently trying to fix the problem but that they do not know how long this will take. Applicants already outside the U.S. requiring a visa will have to wait outside the U.S. until the problem is resolved.

If you are contemplating travel abroad and will require a visa to reenter the U.S., you should carefully reevaluate your travel plans until the situation is resolved.

USCIS To Temporarily Suspend Premium Processing for H-1B Extension of Stay Petitions

Starting May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B Extension of Stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant. USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.

USCIS will refund the premium processing fee if:

• A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and
• USCIS did not act on the case within the 15-calendar-day period.

Premium processing remains available for all other Form I-129 H-1B petitions, including petitions subject to the H-1B cap that are requesting a change of nonimmigrant status or consular notification.

This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations.

Please contact our office if you have any questions

USCIS Completes Selection of H-1B Cap Cases

The Immigration Service has announced that as of May 4, 2015, 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

• 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:

•F-1 visa for students on Optional Practical Training (OPT) who are eligible for a STEM extension.

•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 (in some cases, six months if the petitioner has a “Blanket L-1 Petition” approved).

•E-1 (Treaty Trader) for citizens of countries having a commercial treatywith 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 treatywith 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.

As always, please contact our office if you have any questions.

USCIS Announces Employment Authorization For Certain H-4 Dependants

The Immigration Service has announced that effective May 26, 2015, certain H-4 dependent spouses of H-1B visa holders will be able to apply for an Employment Authorization Document (EAD). This does NOT apply to all H-4 dependent spouses. They will be eligible only in the following situations:

Where the H-1B principal is the beneficiary of an approved I-140 Immigrant Visa Petition,

or

Where the H-1B principal is the beneficiary of an Application for Labor Certification OR an Immigrant Visa Petition which has been pending with the Immigration Service for more than 365 days AND as a result has been granted an extension of stay beyond the normal six year limitation.

In order to obtain the EAD, the applicant must submit Form I-765, Application for Employment Authorization together with the filing fee (currently, $380).

It will not be possible to submit the Application before May 26, 2015.

We expect more specific guidance to follow in the coming weeks. In the meantime, please contact our office if you have any questions.

H-1B Filing Season to Begin April 1, 2015

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, 2015 start date for “new” petitions on April 1.

It is not too soon 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 Masters Degree from a U.S. university.

Last year, numbers remained available only until April 5. We expect an increase in demand 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, 2015 unless one of the following exceptions apply.

• The foreign national is currently employed by the petitioner in H-1B status and is eligible for a extension of stay.

• “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!)

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.

Summary of Obama’s Executive Action

On November 20, 2014 the President issued his long awaited announcement of steps he would take using his executive authority to provide administrative relief to certain classes on foreign nationals currently in the US without legal status. He also announced plans to modify the employment based immigration system to better serve the needs of US employers, enhancing our ability to attract and retain needed highly skilled workers and entrepreneurs. Some of the key steps that will be taken include:

1. Creating a new Deferred Action for Parents (DAPA) of US citizen or Lawful Permanent Resident children who:

(1) Entered the US before January 1, 2010 and have resided here continuously since that time

(2) Have no legal status at the time of application

(3) Have a US citizen or Lawful Permanent Resident child as of November 20, 2014

(4) Have no criminal record and present no serious threat to the US, and

(5) Are willing to pay a fee and undergo background checks.

These applicants will be granted an Employment Authorization Document valid for three years.

2. Expanding the Deferred Action for Childhood Arrivals (DACA) program to include children who entered the US under the age of 16 prior to January 1, 2010 (the previous date was June 15, 2007); remove the age cap for DACA applicants (the original program was limited to applicants born after June 15, 1981); and grant temporary employment authorization for a three year period (increased from the current two years). Unfortunately, parents of DACA-eligible children are NOT included in the expanded program.

3. Expanding the Provisional Waiver Program* to include the spouses and children of Lawful Permanent Residents as well as the adult children of US citizens and Lawful Permanent Residents.

*This program allows applicants who have accrued unlawful presence in the US and would therefore invoke the 3 or 10 year bar to reentry to the US if they travel abroad to obtain an immigrant visa, to seek a waiver of the bar before leaving the US, thereby avoiding a lengthy separation from family members.

4. Modernizing the employment-based immigration system to ensure that all visa numbers authorized under the quota system are used. This could include allowing applicants with approved visa petitions to file an Adjustment of Status application before their Priority Date is reached, thereby gaining the benefits of an Employment Authorization Document and Advance Parole authorization.

5. Expanding Optional Practical Training for F-1 students with STEM degrees, and at the same time, expanding the list of degree programs that qualify for STEM extensions.

6. Clarify the criteria for approval of a National Interest Waiver petition with the goal of promoting its greater use.

7. Grant parole status pursuant to the “significant public interest” provision to inventors, researchers, and founders of start-up companies with substantial US funding to facilitate job creation in the US.

8. Provide clearer guidance on the criteria for L-1B specialized knowledge visas to enhance the business community’s confidence in their ability to depend on the classification to bring needed workers to the US.

9. Refining the “same or similar” portability provisions for long pending Adjustment of Status applications to allow workers greater flexibility to seek new opportunities and accept promotions.

10. Allow certain H-4 dependents to apply for an Employment Authorization Document (this was published as a proposed rule in the Federal Register months ago, and could be implemented quickly as a final rule).

With few exceptions, these changes will require the publication of rules and regulations in the Federal Register before implementation. In the meantime, potential applicants for the newly expanded deferred action programs should begin to collect documents proving their presence in the US since prior to the cut-off date, and of course, refrain from travelling outside the US.

We are prepared to assist applicants with the expanded deferred action programs. We represented hundreds of applicants during the 1986 amnesty program and are very familiar with the issues likely to arise.

Please contact any of our attorneys if you have any questions.

Executive Action on Immigration

On November 20, 2014 the President issued his long awaited announcement of steps he would take using his executive authority to provide administrative relief to certain classes on foreign nationals currently in the US without legal status. He also announced plans to modify the employment based immigration system to better serve the needs of US employers, enhancing our ability to attract and retain needed highly skilled workers and entrepreneurs. Some of the key steps that will be taken include:

1. Create a new Deferred Action for Parents (DAPA) of US citizen or Lawful Permanent Resident children who:

(1) Entered the US before January 1, 2010 and have resided here continuously since that time
(2) Have no legal status at the time of application
(3) Have a US citizen or Lawful Permanent Resident child as of November 20, 2014
(4) Have no criminal record and present no serious threat to the US, and
(5) Are willing to pay a fee and undergo background checks.

These applicants will be granted an Employment Authorization Document valid for three years.

2. Expanding the Deferred Action for Childhood Arrivals (DACA) program to include children who entered the US under the age of 16 prior to January 1, 2010 (the previous date was June 15, 2007); remove the age cap for DACA applicants (the original program was limited to applicants born after June 15, 1981); and grant temporary employment authorization for a three year period (increased from the current two years). Unfortunately, parents of DACA-eligible children are NOT included in the expanded program.

3. Expand the Provisional Waiver Program* to include the spouses and children of Lawful Permanent Residents as well as the adult children of US citizens and Lawful Permanent Residents.

*This program allows applicants who have accrued unlawful presence in the US and would therefore invoke the 3 or 10 year bar to reentry to the US if they travel abroad to obtain an immigrant visa, to seek a waiver of the bar before leaving the US, thereby avoiding a lengthy separation from family members.

4. Modernize the employment-based immigration system to ensure that all visa numbers authorized under the quota system are used. This could include allowing applicants with approved visa petitions to file an Adjustment of Status application before their Priority Date is reached, thereby gaining the benefits of an Employment Authorization Document and Advance Parole authorization.

5. Expand Optional Practical Training for F-1 students with STEM degrees, and at the same time, expanding the list of degree programs that qualify for STEM extensions.

6. Clarify the criteria for approval of a National Interest Waiver petition with the goal of promoting its greater use.

7. Grant parole status pursuant to the “significant public interest” provision to inventors, researchers, and founders of start-up companies with substantial US funding to facilitate job creation in the US.

8. Provide clearer guidance on the criteria for L-1B specialized knowledge visas to enhance the business community’s confidence in their ability to depend on the classification to bring needed workers to the US.
Refine the “same or similar” portability provisions for long pending Adjustment of Status applications to allow workers greater flexibility to seek new opportunities and accept promotions.

9. Allow certain H-4 dependents to apply for an Employment Authorization Document (this was published as a proposed rule in the Federal Register months ago, and could be implemented quickly as a final rule).

With few exceptions, these changes will require the publication of rules and regulations in the Federal Register before implementation. In the meantime, potential applicants for the newly expanded deferred action programs should begin to collect documents proving their presence in the US since prior to the cut-off date, and of course, refrain from travelling outside the US.

We are prepared to assist applicants with the expanded deferred action programs. We represented hundreds of applicants during the 1986 amnesty program and are very familiar with the issues likely to arise.