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

H-4 Spouses Can Get Work Authorization

The USCIS announced today that it will begin to extend employment authorization to certain H-4 visa holders.  USCIS will begin to accept H-4 employment authorization applications on May 26, 2015.  In order to be eligible for an H-4 Employment Authorization Document (EAD) an individual must meet one of the following criteria:

H-4 dependent spouses of H-1B nonimmigrants who:

  • Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted H-1B status under sections 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000 as amended by the 21st Century Department of Justice Appropriations Authorization Act. The Act permits H-1B nonimmigrants seeking lawful permanent residence to work and remain in the United States beyond the six-year limit on their H-1B status.

This is great news for clients who have an approved I-140 but are unable to submit an Adjustment of Status application because of priority date retrogression.  We will continue to monitor developments on this change and will begin preparing H-4 EAD applications for clients as we get closer to the May 26, 2015 filing date.

H-1B Cap Filing Tips

With the high demand for the limited H-1B numbers in recent years, it has become very important to avoid having USCIS return a case due to incorrect filing.  USCIS must accept new H-1B cases during a 5-business day window starting on April 1st.  However, if a case is returned due to improper filing, it will miss the filing window.
The following are some recommendations to be sure an H-1B case is in a position to be accepted by USCIS for processing.

 

LCA: H-1B petitions require a properly executed LCA.

 

Signatures: Original signatures are required on the forms, LCA and company letter.

 

All Questions Answered: It is important to be sure all questions have been answered and that information provided is consistent throughout the entire petition.

 

Correct Service Center: Each case will have a specific regional service center it must be mailed to, which is based on the location of the job opportunity.

 

Checks: Verify that correct check amounts are being included with each case.  Most H-1B petitions require multiple filing fee checks.

 

Supporting Documents: Each H-1B petition must include documentation about the company and beneficiary to support the case.

 

While it is also important to file complete cases to avoid requests for evidence, it is most important to file a case that will be accepted and receipted by USCIS.  Issues that lead to a request for evidence will not impact a case’s acceptance for purposes of receiving one of the limited H-1B numbers.

More H-1B Numbers Coming?

While this new congress is only days old, there has been much speculation on whether new immigration reform for 2015 might benefit companies who employ highly skilled workers.  Senator Orrin Hatch (Utah – R) has been sworn in as the President Pro  Tempore of the Senate and he has given indications over the past several weeks that he looks forward to passing immigration legislation in early 2015 that would increase the number of visas available to highly skilled workers.  There seems to be a good chance that Hatch will reintroduce the 2013 Immigration Innovation act (I-Squared) which would dramatically increase the number of H-1Bs available from the current 85,000 to 115,000.  The act also contained provisions to increase the number of available H-1Bs up to 300,000, depending on economic circumstances.

I-Squared could carry necessary bipartisan support and in 2013 garnered significant support from the CEOs and leaders of Apple, Google, Yahoo, Facebook, Cisco and others.  These are good indications that we could see a much needed increase in H-1B availability in the next several months.  Graham Adair continues to monitor these discussions closely and will provide updates as they become available.

Big Changes in U.S. Immigration

Last night, President Obama announced some significant changes to U.S. immigration policy that will take effect in coming months.  Some of the items announced, such as suspending deportation proceedings for certain groups of people, will go into effect immediately.  Other aspects of the plan will require input from U.S. Citizenship and Immigration Services, the State Department, and Immigration and Customs Enforcement, among others, and will likely require changes to the current regulations.

 

The biggest takeaways, from a business immigration standpoint, from the President’s speech include:

1. ICE will work to “expand and extend the use of optional practical training (OPT) for foreign students.”

2. The USCIS will provide clearer guidance on adjustment of status (I-485) portability so that individuals with pending applications have greater career and job flexibility during the green card process.

3. The USCIS will look to provide EAD work cards and advance parole travel authorization to those who have approved I-140s with retrogressed priority dates.

4. The USCIS will allow H-4 spouses to seek Employment Authorization Documents if the H-1B holder is “on the path to lawful permanent resident status.”

5. The USCIS will issue more clear guidance with respect to what qualifies as “specialized knowledge” in the L-1B context in an effort to improve consistency and reinvigorate employers’ confidence in the visa status.

6. The USCIS and State Department are seeking a method and means to modernize the Visa Bulletin and allocation process to ensure that backlogs are reduced and the process is workable and usable for all intending permanent residents.

7. The USCIS will enhance the National Interest Waiver process to allow greater flexibility in adjudications and permit foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.

8. The USCIS will create a parole system for “eligible inventors, researchers and founders of start-up enterprises who do not yet qualify for a National Interest Waiver, but who: (1) Have been awarded substantial U.S. investor financing; or (2) Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.”

Graham Adair will monitor the development of these policies and changes in regulation as they work their way through the various government agencies.

November 2014 Visa Bulletin: India EB-2 Retrogression

As expected, increased demand in EB-2 category for India required the retrogression of the cut-off date from May 1, 2005 to February 15, 2005. In contrast, potential visa availability is expected for other employment-based categories in the upcoming months.

 

For example, EB-2 China’s cut-off date is expected to have a 3-5 week forward movement. EB-3 China, with a cut-off date of January 1, 2010 is expected to have a rapid forward movement.  The rapid advance of the cut-off date may result in a significant increase in demand for visas.  Meanwhile, EB-3 India has little movement at all.  Lastly, EB-3 Philippines is currently at the worldwide cut-off date of June 1, 2012, but increased demand may require “corrective” action later in the fiscal year.

 

For more information on the November 2014 Visa Bulletin, please visit: http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-november-2014.html

 

If you have any questions about the visa bulletin or other immigration matters, please feel free to contact us at info@grahamadair.com.

October 2014 Visa Bulletin: Imminent Retrogression of EB-2 India

In the October 2014 visa bulletin, the cut-off date for EB-2 India is May 1, 2009. However, given current demand, the cut-off date for EB-2 India may retrogress as early as November. It is possible that the cut-off date may retrogress from May 1, 2009 to a date in early 2005. A major factor to the anticipated retrogression is attributed to the large volume of EB-3 to EB-2 upgrades in the preceding months.

 

Following our September 2014 Visa Bulletin alert, the maximum number of available EB-2 immigrant visas for India for FY 2014 was reached. EB-2 visas for India are “unavailable” until October 1, 2014. USCIS may accept and process EB-2 India cases with priority dates earlier than May 1, 2009. However, the cases cannot be acted upon until October 1, 2014.

 

In contrast, demand for employment-based and family-based visas for the Philippines continues to decrease. As a result, cut-off dates continue to advance in these categories. For October 2014, the EB-3 Philippines cut-off date is October 1, 2011.

 

For more information on the October 2014 Visa Bulletin, please visit: http://travel.state.gov/content/visas/english/law-and-policy/bulletin/2015/visa-bulletin-for-october-2014.html

 

Graham Adair will notify our clients as soon as the new cut-off date for EB-2 India is released. If you have any questions about the visa bulletin or other matters, please feel free to contact us at info@grahamadair.com.

USCIS Issues Policy Guidance on Customer Service

USCIS has issued a new customer service manual. The guidance is intended to be comprehensive and controlling. It supersedes any previous USCIS guidance on customer service.

These are some of the highlights:

Expedited Processing

Applications that were not filed via Premium Processing may be eligible for expedited processing if it meets one or more of the following criteria:

• Severe financial loss to company or person;
• Emergency situation (i.e. applicant is gravely ill);
• Humanitarian reasons (i.e. outbreak of war in the home country);
• Certain nonprofit organizations;
• Department of Defense or national interest situation;
• USCIS error; or
• Compelling interest of USCIS.

Please note that USCIS does not consider petitions that have Premium Processing Service available. USCIS may request additional documentation to support expedite requests.

Requests for expedited processing can be done in one of the following ways:

• Call the National Customer Service Center (NCSC) at 1-800-375-5283.  The NCSC will then forward the Service Request to the office with jurisdiction over the case;
• Schedule an InfoPass appointment at a local USCIS office; or
• Write a letter to the field office or service center processing the case.

Expedite requests can be done for cases that are approaching regulatory processing times. For example, an application for EAD work authorization can be given a service request to expedite when it has been pending for more than 75 days.

Email Correspondence

USCIS service centers provide designated email boxes for customers to inquire about their pending or adjudicated petitions or applications. The email addresses for the Service Centers are:

• California Service Center: csc-ncsc-followup@dhs.gov
• Vermont Service Center: vsc.ncscfollowup@dhs.gov
• Nebraska Service Center: ncscfollowup.nsc@dhs.gov
• Texas Service Center: tsc.ncscfollowup@dhs.gov

Prior to submitting an email inquiry, customers must have called the NCSC to submit a service request. If the customer has not received a response within 15 days of the call to the NCSC, then the customer can email the service center where the case is pending. The email must include the service request reference.

If no response is received within 21 days of the email to the service center, customers may contact the USCIS Headquarters Office of Service Center Operations at: SCOPSSCATA@dhs.gov.

Complaints

There are several ways to submit complaints:

• Call NCSC and ask to speak with a supervisor;
• Make an InfoPass appointment at a local USCIS office;
• Written complaint by mail, email, or fax;
• Contact the Office of Inspector General directly; or
• Contact USCIS headquarters directly.

The customer service manual directs that customers should not be expected to know where to first submit a complaint, and that complaints should not be dismissed because the proper procedure was not followed.

The manual further directs that all complaints should be responded to in writing, by phone, or verbally (where the complaint is submitted in person). Responses should explain steps taken to resolve the issue. In cases where the complaint cannot be resolved in a reasonable time, the response should acknowledge the receipt of the complaint, when a resolution is expected, and any additional action that needs to be taken.

Graham Adair is committed to providing excellent customer service to its clients. We closely monitor all cases and work with USCIS as necessary to proper outcomes. If you have any questions or concerns on how your case is being handled by USCIS, please feel free to contact us at info@grahamadair.com.

September 2014 Visa Bulletin: EB-2 Shows Steady Progress

For September, there is not much movement in the employment-based categories except for EB-2 India. Still, the progress is not significant, and this can be attributed to various factors. Charles Oppenheim, Chief of Visa Control and Reporting Division (U.S. Dept. of State), explained that EB-2 India cut-off could have moved forward more dramatically for September. However, worldwide EB-1 and EB-2 India demand in July and the beginning of August were higher than expected. This increase resulted in fewer available visa numbers for EB-2 India.

Mr. Oppenheim also predicts that EB-2 India will retrogress in FY2015, and this could occur as early as November. “Current USCIS filings based on forward movement of the India EB-2 cut-off may not results in a significant increase in requests for visa numbers until early FY 2015. When that occurs, we can expect to see retrogression based on the need to hold number use within the annual limit.”

Meanwhile, EB-3 China continue to advance, moving from October 1, 2006 to November 1, 2008. Also noteworthy is the progress of EB-3 Philippines, moving to the same priority date as EB-3 worldwide.

For more information on the September 2014 Visa Bulletin, please click here.

Graham Adair will be working with our clients who have priority dates that will become current on September 1, 2014. If you have any questions about this bulletin or its impact, please feel free to contact us at info@grahamadair.com.

U.S. Consulates in Canada Temporarily Suspend Third-Country National Visa Processing

The seven U.S. consulates in Canada have announced that they will not accept any new third-country national (TCN) visa applications for the summer months of June, July, and August. Any currently existing application appointments will be honored, but going forward nationals of countries other than Canada will be required to obtain a visa appointment at U.S. consulates elsewhere in the world. The U.S. consulates in Canada will resume TCN visa application processing in September.

This primarily will impact individuals who are currently working in the U.S. who had intended to make plans to apply for a U.S. visa in Canada over the summer months. If a visa application is required during June – August 2014 that application will need to be made in another country, unless the client holds a valid Canadian passport.

Please contact an attorney at Graham Adair if you need guidance or advice on this topic.

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