DHS Proposes Rule Affecting H-1B Selection Process

Today, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking that affects all H-1B visa petitioners subject to the cap.

Electronic Registration
The proposed rule would require H-1B visa petitioners to electronically register with U.S. Citizenship and Immigration Services (USCIS) during a registration period. It is important to note that this rule provides significant leeway for USCIS to not implement this registration requirement for H-1B cap cases filed in April 2019. Considering the mandatory notice and comment period, followed by system testing, there likely will not be much advance notice. Companies should plan accordingly and be prepared for either scenario. USCIS anticipates that this change would help reduce the wait time for notifying applicants of cap selection.

Reversal of Selection Order for Advanced Degree Holders
The proposed rule also reverses the order by which H-1B petitions counted towards the cap are selected. Currently, when the H-1B cap and advanced degree exemption are both reached within the first five days of the filing period, petitions towards the advanced degree exemption are selected first. Under the proposed rule, all registrations or petitions would be counted towards the H-1B cap first. Once the cap is reached, USCIS would select registrations or petitions towards the advanced degree exemption. According to USCIS, the proposed change would lead to an estimated increase of up to 16 percent, or about 5,340 workers, in successful H-1B petitioners with a master’s degree or higher from a U.S. institution.

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

San Ysidro Port of Entry Reopened After 11/25 Closing

On Sunday, November 25, service at the San Ysidro Port of Entry on the Mexican border was suspended for several hours due to escalating tensions between migrants and U.S. Border Patrol in Tijuana.

U.S. Customs and Border Protection closed northbound, southbound, and pedestrian access to the Port around 11:30AM, reopening pedestrian access at 3:45PM and reopening the rest of north- and southbound vehicle access by 6PM. Extra personnel, including officers from Customs and Border Protection, Border Patrol, the Air Force, and the Marine Corps, were also deployed in response.

While the Port is currently open, clients should monitor the situation and plan accordingly, as complications may arise in the future without warning.

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

DOL Updates H-1B Labor Condition Application and Worker Complaint Form

The United States Department of Labor (DOL) has announced updates to the H-1B Labor Condition Application form (Form ETA-9035) and the worker complaint form (Form WH-4), intended to promote business compliance and transparency with the H-1B program.

The Labor Condition Application Form will require new details about H-1B worker employment, including the following:

  • All places of employment for H-1B workers, including short-term positions.
  • Estimated number of H-1B workers at each intended place of employment.
  • Clear identification of secondary entities using H-1B workers.
  • Documentation of H-1B workers’ degrees, for employers who claim exemption solely on the basis of education.

The worker complaint form will include new fields for further details about alleged H-1B program violations.

The Office of Foreign Labor Certification will announce the date of the new forms’ availability on their website in the coming weeks.

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Residence Permits for Hong Kong, Macao, and Taiwan Employees in Mainland China

On September 1, 2018, the State Council set forth rules governing how HMT Residents apply for residence permits. HMT Residents may apply at local public security authorities for residence permits if they meet two requirements:

  1. They have resided on mainland China for more than 6 months.
  2. They meet one of three conditions: having employment, a stable residence, or continuously studying at a school.

Required documentation includes: an employment agreement or a certificate from the employer which can be used to prove the HMT Resident’s employment in the mainland; a housing lease or purchasing contract as proof of the resident’s stable residential address; and a student card or certificate from the school demonstrates the resident’s continuous study. An unexpired work permit may still serve as documentation of employment in the mainland until December 31, 2018.

Importantly, HMT Residents employed in the mainland can now use residence permits or their mainland travel permits to enroll in social insurance and housing fund programs. In accordance with Social Insurance Law, HMT Resident’s employed in the mainland should be enrolled in social insurance programs (except currently in Shanghai, as it has yet to implement the requirement). Housing fund enrollment is still on a voluntary basis.

It should be noted that HMT Resident’s do not include Chinese nationals who reside in Taiwan, Hong Kong, or Macao who possess a hukou (household registration in mainland China.)

Switzerland: New Quotas for Work Permit Applications in 2019

The Federal Council of Switzerland announced that new quotas for work permit applications submitted during the 2019 calendar year will be released on January 1, 2019.

Non-EU (European Union)/EFTA (Europeans Free Trade Area) Nation or Foreigners Seconded from an Employer Based Outside the EU/EFTA

  • 4,000 authorizations for “L” short-term permits (a decrease of 500 permits)
  • 4,500 authorizations for “B” long-term permits (an increase of 1,000 permits)

EU/EFTA Nationals or Foreigners Seconded from an Employer Based Inside the EU/EFTA

  • 3,000 authorizations for “L” short-term permits (no change)
  • 500 authorizations for “B” long-term permits (no change)

The above permit quotas apply to assignments of more than four (4) months or 120 days. Companies who are planning on potentially hiring or transferring non-EU-EFTA nationals and EU-EFTA nationals seconded to Switzerland in the 2019 calendar year will be affected.

Applicants representing the most important economic interest for Switzerland will be given preference, including executives, companies operating in the innovation sector which develop new mandates for the Swiss economy, sectors of activity with a severe lack of resources, and cases involving a high level of political implications. It is important to plan well in advance. Plan on submitting important applications well in advance of the end of the calendar year and of each quarter.

Please contact a Graham Adair attorney for further details.

F-1 Students Waiting on H-1B Petitions No Longer Authorized to Work

As of October 1, 2018, F-1 students who received a “cap-gap” extension and still have pending H-1B petitions no longer have work authorization. The “cap-gap” extension, which is intended to help bridge the gap between F-1 and H-1B status, expired on September 30, 2018.

F-1 students can still remain in the U.S. while they await status changes in their H-1B petitions without accruing unlawful presence, however they cannot be employed. F-1 students with work authorizations that extend past the September 30 deadline, such as an appropriately dated I-765, may continue to work per their authorization guidelines.

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

United Kingdom: Update on Brexit

As of March 2019, European Union (EU) citizens and their family members will be able to apply for settled or pre-settled status to continue residing in the United Kingdom after the December 31, 2020 deadline. EU citizens, and family members of EU citizens, must apply for settled status if:

  1. The individual resided in the UK continuously for five years.
  2. The individual resided in the UK prior to 31st December 2020.
  3. The individual who is a non-EU citizen is married to a British citizen.

After December 31, 2020, eligible individuals residing overseas will be able to join EU citizen family members residing in the UK with specific limitations: They must be a close family member (spouse, civil partner, unmarried partner, dependent child/ grandchild / parent / grandparent).

Additionally, the qualifying relationship must have commenced prior to December 31, 2020 and expected to continue after arrival in the UK. In general, if an individual has resided in the UK for less than five (5) years, they will be eligible to apply for pre-settled status. Only those with no prior criminal convictions, proof of identity, and residence in the UK will be eligible to apply for settled or pre-settled status. For citizens residing outside the EU to be eligible for either settled or pre-settled status, the individual must be in a relationship with the EU citizen as a spouse, civil partner, or unmarried partner with a residence card.

Irish citizens and individuals who have indefinite leave to enter or remain in the UK are exempted from applying for settled status. Individuals who have indefinite leave to reside in the UK may choose whether they wish to remain in the UK without applying for settled status or change their status.

We will provide an update as soon as it becomes available. If you have any questions, please feel free to contact an attorney at Graham Adair.

Sam Adair Quoted in Quartz on H-1B Visa Spouses

Sam Adair was recently quoted in Ananya Bhattacharya’s Quartz article “In three months, H-1B spouses end up jobless — again.” In the article, Sam discusses the various hurdles that immigrants will face due to upcoming immigration reform, such as increased wait time for visas.
“For an H-4 spouse looking at a 10-year wait to get a green card, that is an incredibly long time to be forced to sit out of the job market,” said Sam.
To read the full article, click here.

USCIS Raises Premium Processing Fee

United States Citizenship and Immigration Services (USCIS) has announced that it will increase the premium processing fee for Form I-129 (Petition for a Nonimmigrant Worker) and Form I-140 (Immigrant Petition for Alien Workers). The fee will increase from $1,225 to $1,410, effective October 1st, 2018.

USCIS states that the fee is increasing in accordance with the percentage change in inflation (14.92%) since it was last changed in 2010. The agency’s Chief Financial Officer Joseph Moore explains that the adjustment will allow USCIS to hire more staff and make improvements in technology “to administer various immigration benefit requests more effectively and efficiently.”

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

USCIS Extends Suspension of H-1B Petition Premium Processing

United States Citizenship and Immigration Services (USCIS) previously announced that premium processing for cap-subject H-1B petitions for fiscal year 2019 would be suspended until September 10, 2018. However, the suspension has been extended and expanded to cover other H-1B applications and is now expected to last until February 19, 2019.

With very limited exceptions, this new suspension of premium processing will cover almost all H-1B applications, except those outlined below. USCIS states that the suspension will help reduce overall H-1B processing times by prioritizing long-pending and time-sensitive cases. This affects all H-1B petitions filed at the Vermont and California Service Centers, excluding the exemptions noted below.

Exemptions
The premium processing suspension does not apply to the following:

  • Cap-exempt petitions that are filed exclusively at the California Service Center for beneficiaries that will be employed by a cap-exempt employer or a qualifying cap-exempt organization, institution, or entity.
  • Petitions that are filed exclusively at the Nebraska Service Center by an employer requesting “Continuation of previously approved employment without change with the same employer.”
  • H-1B cases that are currently filed under premium processing will continue to be processed until September 11, 2018. At that point, if they are not adjudicated, USCIS may suspend premium processing on those cases and refund the premium processing government filing fees.

Petitioners may submit a request to expedite their H-1B petition if they can provide documentation that they meet at least one of the criteria from the USCIS. If there is a need to expedite a case, please speak with your attorney to submit the expedite request. These requests will be reviewed on a case-by-case basis by the USCIS.

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

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