Preparing for H-1B Cap Season

H-1B cap season is nearly upon us, and it’s in your best interest to get a head start on preparing your petition to ensure a timely submission.

United States Citizenship and Immigration Services (USCIS) begins accepting H-1B applications for FY 2019 on April 2nd, 2018. The H-1B Regular quota is 65,000 visas, and the H-1B Master’s quota is 20,000 visas.

If more than 65,000 petitions are submitted during the first five days of the acceptance period, USCIS uses a lottery system to select applicants. The lottery system is conducted through a random, computer-generated process. The likelihood of the need for a lottery is high – for FY 2017, USCIS received 236,000 H-1B applications within five days of opening application acceptance, and 199,000 applications for FY 2018.

In the case of a lottery, USCIS handles it in two segments. First is the lottery for individuals qualifying for the 20,000 set aside for those with advanced U.S. degrees. Once that lottery is complete, any unselected in the advanced cap are put into the regular lottery of 65,000. USCIS will issue receipt notices on cases selected in the lottery. We expect to start seeing receipt notices toward the end of April, and more steadily through May. Unfortunately, USCIS does not begin issuing rejection notices on cases not selected in the lottery until most receipts have gone out, so there tends to be a period of uncertainty toward the end of May and into June.

USCIS has telegraphed that there will be a higher level of scrutiny on case review than we have seen in years past. We are aware of the areas of emphasis and will plan to prepare cases accordingly to reduce the number of requests for evidence and avoid denials.

For the greatest chance of obtaining an H-1B, the most important step is timely filing. In the weeks and months leading up to the April 2nd acceptance date, be sure to stay on top of all required paperwork. The attorney handling your case can help guide you through the process and keep you informed of everything that is needed before submitting. Setting aside a reasonable amount of time to get required forms completed thoroughly will save you plenty of stress come April 2nd.

Sam Adair Talks to Bloomberg BNA About the Travel Ban’s Impact on Businesses

Sam Adair was recently quoted in Laura Francis’s Bloomberg BNA article “More Uncertainty for Businesses Now That Travel Ban Allowed.” In the article, Sam explains how businesses and employers will be impacted by the Supreme Court’s decision to put President Trump’s travel ban into effect, and discusses which countries will be affected the most. “This is really the first of the travel bans that’s going to be allowed to take essentially full effect,” he says.

Click here to read the full article.

Supreme Court Rules to Allow President Trump’s Travel Ban to Take Full Effect

The Supreme Court of the United States (SCOTUS) has lifted the injunctions on President Donald Trump’s travel ban, which targets people from six countries, while legal challenges continue in lower courts. The 4th and 9th U.S. Circuit Court of Appeals will be holding arguments on the legality of the ban this week. What is not clear today is whether previous exemptions for those with a significant tie to the U.S. (through employment or immediate family members) would be applicable in this case. We will be providing updates here as they become available.  

Read our previous update for more information about the travel ban.

Sam Adair Speaks with Voice of America News on Greater Scrutiny of Nonimmigrant Work Visas

Sam Adair was recently quoted in Esha Sarai’s Voice of America article “Greater Scrutiny Set for Nonimmigrant Work Visa Renewals.” In the article, Sam discusses potential effects of the USCIS’s new policy that visa renewal applications must face the same scrutiny as the original applications.

“…I think what we’ll see is just an increase in the number of requests for evidence, an increase in the delays on the adjudication of these petitions, and really it’s going to just result in more costs for the employers who are filing these petitions,” Adair told VOA.

Click here to read the full article.

Sam Adair Talks to Daily Journal on Tightened Nonimmigrant Visa Scrutiny

 

Sam Adair was quoted in the following article, which appeared in the Los Angeles and San Francisco Daily Journal on October 26, 2017.

US government tightens nonimmigrant work visa scrutiny

By Chase DiFeliciantonio

In a policy shift, the federal government announced that applications to extend certain work visas will now be scrutinized in the same way as the initial applications.

U.S. Citizenship and Immigration Services said the change would apply to certain nonimmigrant visas and is needed to combat fraud and protect U.S. workers.

According to Sharon Rummery, a spokesperson for the agency, the change was implemented Monday to comply with an executive order signed in April by President Donald J. Trump.

“The burden of proof is and should rightly be on the petitioner regardless of whether we’ve approved the request in the past,” Rummery said. “Our determination should be based on the merits of each case.”

Some business immigration attorneys decried the move as political and said it will create more work for them and increase expenses for their clients without real benefits.

Mitch Wexler, a Los Angeles- and Irvine-based partner at Fragomen, Del Rey, Bernsen & Lowey LLP, wrote in an email that the change is unnecessary and counterproductive.

“[It’s] ridiculous for the agency to no longer give deference to its previous adjudications,” Wexler wrote. “They get no additional filing fees for RFEs [Requests for Evidence] and will introduce even more uncertainty into the workforce of the biggest U.S. employers.”

The immigration service can ask for more information about an application through a Request for Evidence when it believes and application lacks required documentation or evidence.

According to a news release from the agency, the previous policy deferred to the findings of an already approved application, as long as the key elements were unchanged and there was no evidence of a material error or fraud.

Rummery said the change was needed to verify nothing had changed between an initial application and an application for an extension, adding in an email that the previous policy was outlined in an April 2004 policy memo and added to in a subsequent August 2015 policy memo.

“We think this is going to result in an increase in delays and an increase in expenses for employers who are filing these extension applications for their employees,” said Sam Adair, a business immigration attorney and an Austin, Texas-based partner at Graham Adair Inc.

Adair said L-1 intracompany transfer visas, O-1 extraordinary ability visas, TN visas based on the NAFTA treaty, and H-1B nonimmigrant work visas could be affected by the change.

“This will be especially true in O-1 and L-1 applications when there’s a fair amount of subjective evidence that’s going to be required for those petitions,” Adair said, adding he was less concerned about increased scrutiny of H-1B visas because they require a more objective standard for evidence.

“This is very much in line with previous efforts by the administration on immigration,” Adair added. “It’s going to create additional uncertainty for people who are already here.”

Switzerland: Increased Work Permit Quotas for 2018

The Swiss Federal Council has released the following work permit quotas effective January 1, 2018:

 

Non-EU (European Union)/EFTA (European Free Trade Area) Nationals

  • B Permits: 3500 long term permits (an increase of 500);
  • L Permits: 4500 short term permits (no increase);

EU/EFTA Nationals

  • B Permits: 500 long term permits (an increase of 250);
  • L Permits: 3000 short term permits (an increase of 1000).

 

The above permits apply for assignments of greater than four months or 120 days. 

In light of the increased and consistent demands for work permits in Switzerland, the increase in quota levels may still not be enough to meet the demand.  Shortages are still expected towards the end of the next calendar year once the quota levels run low.

Please reach out to the attorney overseeing your case or Meg Jalandoni for advice on next steps, and follow us on Twitter for real-time updates as they become available.

Suspension of Non-Immigrant Visas for U.S. Citizens to Turkey

The United States and Turkey have both suspended all non-immigrant visas effective immediately on October 8, 2017. The indefinite suspension prevents Turks from traveling to the US, and vice versa, on non-immigrant visas, which include tourist, business, student, and official/diplomatic visas. This applies to all sticker visas, electronic visas, and border visas.

The suspensions were prompted by the recent arrest in Istanbul of a U.S. consulate employee, who is a Turkish national. The arrest was made in connection with the employee’s alleged ties to cleric Fethullah Gulen, who has been in exile from Turkey and living in the U.S. since 1999. The Turkish president has blamed Gulen for last year’s military coup attempt in the country, and has pushed for the US to extradite him.

Please reach out to the attorney overseeing your case or Sam Adair for advice on next steps, and follow us on Twitter for real-time updates as they become available.

Graham Adair Named a 2017 Fastest Growing Private Company in Silicon Valley

Graham Adair has been recognized by the Silicon Valley Business Journal as one of the top 50 fastest growing private companies in Silicon Valley for 2017. The rankings of these companies, based on percentage growth from 2014 to 2016, will be announced on October 19.

Every year, the Silicon Valley Business Journal compiles a list of the 50 fastest growing private companies in Silicon Valley. In 2016, Graham Adair was ranked as the 20th fastest growing private company.

See the complete, unranked list of fastest growing private companies for 2017 here.

Presidential Proclamation Further Restricts Travel into United States

On Sunday, September 24, 2017, the president, Donald J. Trump, issued a Proclamation that will have an impact on some of our clients. This Proclamation replaces the previous Executive Orders restricting admissions to the U.S. of citizens of certain designated countries.

Who is Impacted

The new Proclamation will restrict admission to the United States for an indefinite period for certain citizens of the following countries: Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia. The travel restrictions under this proclamation vary depending on the country of citizenship and will be outlined in more detail below for each country.

  1. Chad: The entry into the U.S. of nationals of Chad is suspended for both immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
  2. Iran: The entry into the U.S. by Iranian nationals as both immigrants and nonimmigrants is suspended. One exception to this for Iranian nationals are those who are coming to the U.S. on valid student (F and M) and exchange visitor (J) visas.
  3. Libya: The entry into the U.S. of nationals of Libya is suspended for both immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
  4. North Korea: The entry into the U.S. of nationals of North Korea as immigrants and nonimmigrants is suspended.
  5. Syria: The entry into the U.S. of nationals of Syria as immigrants and nonimmigrants is suspended.
  6. Venezuela: The entry of certain government employees of the government of Venezuela and their immediate family members are suspended as well as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas. Other travelers from Venezuela will be subjected to additional security measures which will likely mean delays in visa issuance and secondary inspection upon arrival at the airport.
  7. Yemen: The entry into the U.S. of nationals of Yemen is suspended for both immigrants, and as nonimmigrants on business (B-1), tourist (B-2), and business/tourist (B-1/B-2) visas.
  8. Somalia: The entry of nationals of Somalia as immigrants is suspended. Additionally, visa adjudications for nationals of Somalia and decisions regarding their entry as nonimmigrants will be subject to additional scrutiny and delays. They are likely to face secondary inspection upon arrival in the U.S.

The order specifically exempts the following categories of people:

  • Lawful permanent residents of the United States;
  • Any foreign national who is admitted to or paroled into the United States on or after the effective date of this order;
  • Any foreign national holding a document other than a visa that is valid on the effective date of this order or issued at any time there after that permits travel to the U.S. (such as an advanced parole document);
  • Any dual national of a designated country who travels to the U.S. on their passport from a non-designated country;
  • Any foreign national who has been granted asylum; any refugee who has already been admitted to the United States; or anyone granted coverage under the Convention Against Torture; or
  • Anyone traveling on a diplomatic or diplomatic-type visa.

The proclamation does list out possible waivers available in limited circumstances that may be available to those impacted by this travel ban, however, at this time it is not clear what the process will be to apply for a waiver and how regularly or freely they will be given. We will continue to monitor developments on this front and update clients accordingly. If you have questions about whether you are covered under this travel ban you should reach out to the attorney overseeing your case or Sam Adair for advice on next steps. Graham Adair is closely monitoring any new developments and we will release information as it becomes available. Please check back to our website for further updates and follow us on Twitter for real time updates as they become available.

USCIS Resumes Premium Processing for Some Categories of Applicants Seeking H-1B Visas

U.S. Citizenship and Immigration Services (USCIS) has resumed premium processing of all H-1B visa petitions that fall under the Fiscal Year 2018 cap. Set at 65,000 visas, the 2018 cap was reached in April. Premium processing was also resumed for the 20,000 petitions annually set aside for workers with a master’s degree or higher educational degree from the United States.  If your H-1B petition was filed under the FY2018 cap and has not yet been adjudicated it is now eligible for premium processing.  

Additionally, USCIS had previously resumed premium processing for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program, H-1B cap exempt employers and for interested government agency waivers. Processing for all other H-1B petitions remains temporarily suspended; however, USCIS indicates that premium processing for other H-1B applications will resume in the near future.  

Please reach out to the attorney overseeing your case or Sam Adair for advice on next steps, check our website for further updates, and follow us on Twitter for real-time updates as they become available.

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