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).

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).

USCIS Clarifies STEM OPT Extension Reporting & Training Guidelines

The STEM OPT Extension allows certain F-1 students who complete degrees in science, technology, engineering, and mathematics (STEM) to extend their optional practice training (OPT) by 24 months. USCIS has provided answers to Frequently Asked Questions (FAQs) about the STEM OPT Extension on their website, as well as the following clarifications:

Reporting 

Students and employers must report changes to materials to their Designated School Official (DSO) by filing a modified Form I-983. Students must also report changes, such as address and employer name, to their DSO within 10 business days. Employers must report the student’s termination of employment or departure to the DSO within 10 business days.

Training

Earlier this year, USCIS announced that the use of third-party training sites would be limited. However, clarifications show that employers still have some flexibility. Employers may train students at a third-party site as long as the employer demonstrates a bona fide employer-employee relationship with the student, and the employer is the one providing the training. The Department of Homeland Security (DHS) will review cases if necessary.

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 Issues Two New Policy Guidance Updates

U.S. Citizenship and Immigration Services (USCIS) has adopted two new policies that extend the capacities of agency officials. One policy allows USCIS to refer foreign workers for removal proceedings in immigration court. As of July 5, 2018, USCIS can issue Notices To Appear (NTAs) for removal proceedings in instances of suspected crime, fraud, or unlawful presence in the U.S. after the rejection of an application or petition.

The second policy gives USCIS adjudicators full discretion to deny an application, petition, or request that is found to be missing initial or eligible evidence without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID). This policy applies to all applications, petitions, and requests filed after September 11, 2018, except for Deferred Action for Childhood Arrivals (DACA) adjudications.

Impact on Businesses

While USCIS now has the authority to issue NTAs and deny submissions without RFEs or NOIDs, this does not necessarily mean that they will in all cases. NTAs will most likely be issued in cases of strongly suspected fraud or crime, and submissions will most likely be rejected in cases with weak evidence for eligibility. Employers can also appeal USCIS decisions that they feel were made mistakenly.

However, employers should be vigilant and timely in compliance efforts for their visa sponsorship programs to minimize the possibility of worker removal. Employees denied for a visa extension are most at risk of entering removal proceedings and becoming unable to apply for further sponsorship opportunities. For this reason, we recommend filing extensions as far in advance as possible. Special attention should also be paid on cases where an employee is transferring from another company to avoid having the employee caught in between valid employer sponsorship.

This post does not constitute legal advice or an attorney-client relationship. Please contact your Graham Adair attorney for any concerns regarding these developments. For more frequent updates, follow us on Twitter (@GrahamAdairLaw).

Trump Immigration Order Significantly Impacts Travel and Visas

On Friday January 27, 2017, President Donald Trump issued an executive order on immigration that will significantly impact some of our current and past clients. This executive order, “Protecting the Nation from Terrorist Attacks by Foreign Nationals,” put a 120 day ban on refugee admissions from all countries. More significantly for our clients, this order also suspends the immigrant and nonimmigrant entry into the U.S. of nationals from Iraq, Syria, Iran, Sudan, Libya, Somalia or Yemen for 90 days. Furthermore, the order calls for implementing uniform screening procedures, such as in-person interviews, for all visa applicants.

For the time being, this means that any person who is a citizen of Iraq, Syria, Iran, Sudan, Libya, Somalia or Yemen should refrain from traveling outside of the U.S. There is an extreme likelihood that if you are from one of these countries, and even if you have a green card, valid visa, or advanced parole document, that you will be barred from re-entering the U.S. for 90 days.

This is an extremely disappointing move by the new administration given the many significant and positive contributions that so many of our clients, who will be impacted by this executive order, make to this country and our economy.

This is an extreme measure and the advice against traveling cannot be overstated. If you are currently outside of the U.S. you should contact the attorney overseeing your case or Sam Adair for advice on next steps. Graham Adair is closely monitoring any new developments and will release information as it becomes available. Please check back here for further updates and follow us on twitter @grahamadairlaw for real-time updates as they become available.

DHS Final Rule on Changes to Employment-Based Immigration

The U.S. Dept. of Homeland Security has released a final rule amending its regulations related to certain employment-based immigrant and nonimmigrant visa programs.  The final rule is effective January 17, 2017.  The final rule clarifies and improves many policies and practices.  It seeks to provide greater flexibility for high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (i.e. EB-1, EB-2, EB-3) to seek promotions, accept lateral positions, or change employers.  It also increases certainty for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers.

Some important policy clarifications and improvements include:

  • H-1B extensions of stay under AC21. A qualifying labor certification or Form I-140 petition is not required to be filed 365 days before the 6-year limitation is reached in order for the individual to be eligible for an exemption under section 106(a) of AC-21; instead, the labor certification or Form I-140 would need to be filed at least 365 days before the day the exemption would take effect.
  • Per country and worldwide limits. If the Visa Bulletin that was in effect on the date the H-1B  petition is filed shows that the individual was subject to a per country or worldwide visa limitation, DHS may grant 3-year extension (beyond the 6-year limitation), even if the immigrant visa is available when the petition is adjudicated.  In contrast, current regulations only allow an H-1B nonimmigrant to extend status in 3-year increments (beyond the 6-year limitation) if the immigrant visa unavailability exists at the time the petition is adjudicated under section 104(c) of AC21.
  • I140 Revocation. An approved I-140 petition will remain valid if a request to withdraw is received or the petitioner terminates its business 180 days or more after either the date of the petition’s approval or the date of filing of an Adjustment of Status (I-485) application.
  • Automatic EAD Extensions. If the renewal is timely filed, EADs will be automatically extended. Currently, only F-1 students applying for an EAD renewal based on STEM extension benefit from automatic EAD gap-fill work authorization for timely filed extensions.  However, this gap-fill provision will now be extended to other classes of EAD benefits.
  • 10-day nonimmigrant grace period. Nonimmigrants have 10 days at the end of an authorized validity period, to depart the U.S. or take other actions to extend, change, or otherwise maintain lawful status.
  • 60-day nonimmigrant grace period. High-skilled workers in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications, have a 60-day grace period (including those whose employment ceases prior to the end of the petition validity period) to more readily pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications or employment in the same classification with a new employer.
  • Employment Authorization for Spouses and Children of I-140 Principals. Where a person’s priority date under EB-1, EB-2, or EB-3 is not current due to per country immigrant visa limits, spouses and qualifying children may apply for work authorization, so long as they can provide “compelling circumstances.”

As mentioned, these changes are not yet in effect.  We will provide additional guidance as more information on the implementation become available.

Canada Electronic Travel Authorization to be Strictly Enforced by September 29, 2016

In March 2016, the Government of Canada introduced an ETA requirement for U.S. green card holders, as well as nationalities that were formerly visa exempt. U.S. citizens still do not require an ETA to enter Canada.

The Citizenship and Immigration (CIC) Canada has stated that the “leniency period” in which travelers can board their flight without an ETA will end on November 9. However, various reliable sources confirm that the ETA requirement will be strictly enforced by September 29. Hence, we highly recommend that all travelers to Canada check whether they require an ETA or a visa before traveling.

To find whether or not you require an ETA, please go to: http://www.cic.gc.ca/english/visit/visas-all.asp.

Please contact your Graham Adair representative if you have any questions.

New 24-Month STEM OPT Extension Rule

The Department of Homeland Security’s (DHS) final rule regarding STEM optional practical training (OPT) extensions will take effect on May 10, 2016. Most notably, the new rule allows F-1 STEM students to extend the standard 12-month OPT period an additional 24 months, for a total of 3 years. It also allows F-1 STEM students who are currently on an approved 17-month extension to apply for an additional 7 months.

F-1 STEM OPT students who are currently on an approved 17-month extension may apply for an additional 7 months, provided they have at least 150 days remaining when the petition is filed with USCIS. Applications will be accepted from May 10 – August 8 only.

Individuals who receive the 24-month extension would have a total of three years of OPT status. In addition, individuals who earn a second STEM degree at a higher educational level are now eligible for an additional 12-month period of OPT plus another 24-month extension (for a total of 6 years of OPT status). F-1 students currently on a 12-month period of post-completion OPT based on a non-STEM degree are now eligible to use a prior STEM degree as the basis for a 24-month extension—as long as both degrees are from accredited institutions and the OPT employment is directly related to the previously obtained STEM degree.

The new regulations carry additional requirements for employers, who must provide compliant training plans and complete regular validation reports. There are also new obligations for OPT extension employees, who must submit annual self-evaluations.
Under the new rule, the DHS may conduct worksite visits. The DHS is required to provide 48 hours’ notice, unless the employer is non-compliant or if the visit is triggered by a complaint. As with the prior rule, employers must be enrolled in E-Verify and comply with reporting requirements.

Please contact us with any questions on how the new STEM OPT rule impacts you or your employees.

Federal Court Vacates OPT 17-Month STEM Extension Rule

Optional Practical Training (OPT) allows certain graduating F-1 students to obtain twelve months of employment in areas related to their academic field of study. The STEM OPT extension allows an F-1 student to extend his or her OPT employment for an additional 17 months if the student’s F-1 program degree was in an appropriate Science, Technology, Engineering, or Mathematics (STEM) field, and if the student has a job or job offer from an employer registered in the USCIS’s E-verify program.

On August 12, 2015, the US District Court for the District of Columbia held that the Department of Homeland Security’s 2008 interim final rule implementing the 17-month OPT STEM extension was invalid, because the Department of Homeland Security (DHS) implemented the rule without proper notice and comment. (Washington Alliance of Technology Workers v. DHS). However, the court also found that vacating the rule immediately would cause substantial hardship for both F-1 students on STEM OPT extensions and US employers in the technology sector. Therefore, the court ordered that the 2008 interim final rule not be vacated until February 12, 2016, and that during this time, DHS may choose to submit the rule for proper notice and comment.

Graham Adair will provide updates as they become available. Should you have questions, please contact your assigned attorney or paralegal.

– By Dena Neese

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