Quiet Change to STEM OPT Program Requires Immediate Action

USCIS quietly made a change to the STEM OPT program earlier this year. Without any formal announcement, the agency published a new restriction on the STEM OPT page of its website stating that employers may employ students under the STEM OPT program only if the employer will provide the practical training experience to the student at its own place of business. This is a sharp departure from previous interpretations of employer-employee relationships permitted under the STEM OPT program.

What this means for our clients:

If you have contractors working at your company under the STEM OPT program and you wish to continue to utilize their services, you must transfer the STEM OPT student to your employ and fill out a new I-983 training plan for the student to submit to their school at the earliest. It is particularly important that the transfer take place sooner rather than later if you have filed an H-1B cap case on the student’s behalf in this year’s H-1B visa lottery.

If you have questions about this, please contact Sam Adair. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

H-1B Cap Reached for FY 2019

USCIS has completed the random selection process for reaching the H-1B cap and the advanced degree exemption (master’s cap) for fiscal year (FY) 2019.

Between April 2nd and April 6th, USCIS received 190,098 H-1B petitions, including those counting towards the advanced degree exemption. USCIS received approximately 9,000 fewer petitions than were received for last year’s H-1B cap. The general statutory cap is 65,000 petitions, and the master’s cap is 20,000. USCIS randomly selected visas in the master’s cap category first, from which unselected petitions became part of the 65,000 cap lottery.

USCIS will continue to process cap-exempt petitions, as well as petitions for current H-1B workers to:

  • Extend stay in the U.S.;
  • Change employers;
  • Work concurrently in another H-1B position;
  • Change terms of employment.

USCIS will return unselected petitions with their filing fees. Current H-1B workers who have been counted towards the cap will not be counted towards the FY 2019 cap. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Temporary Premium Processing Suspension

USCIS will begin accepting H-1B petitions that are subject to the FY 2019 cap on April 2, 2018. FY 2019 cap-subject petitions received by USCIS from April 2 to April 6, 2018 will be considered in the H-1B visa lottery. Today, USCIS announced that it has temporarily suspended premium processing for all FY 2019 cap-subject petitions. During the temporary suspension, USCIS will reject any I-907 Forms requesting premium processing service associated with FY 2019 cap-subject H-1B petitions.

USCIS expects the suspension to last until September 10, 2018. FY 2019 cap-subject petitions that are still pending after September 10, 2018 may be upgraded to premium processing at that time.Premium processing will continue for H-1B petitions that are not subject to the FY 2019 cap. Such H-1B petitions include H-1B extension petitions and H-1B change of employer petitions.

USCIS explains that the temporary suspension will help the agency process long-pending petitions and reduce overall H-1B processing times. For more frequent updates, please visit our website and follow us on twitter (@GrahamAdairLaw).

Australia Updates: Temporary Skill Shortage (TSS) Visa & Skilled Occupation List

As we are now well aware, the Temporary Skill Shortage (TSS) visa is scheduled to replace the Subclass 457 visa in March 2018. There will be 3 streams available under TSS, and they are as follows:

(1) Short-term stream: this is for employers to source genuine temporary overseas skilled workers in occupations included on the Short-term Skilled Occupation List (STSOL) for a maximum of 2 years (or up to 4 years if an international trade obligation applies); OR

(2) Medium-term stream: this is for employers to source highly skilled overseas workers to fill medium-term critical skills in occupations included on the Medium and Long-term Strategic Skills List (MLTSSL) for up to 4 years, with eligibility to apply for permanent residence after three years; OR

(3) Labour Agreement stream: this is for employers to source overseas skilled workers in accordance with a labour agreement with the Commonwealth, on the basis of a demonstrated need that cannot be met in the Australian labour market and standard visa programs are not available, with the capacity to negotiate a permanent residence option.

NOTE: the Australian Department of Home Affairs (DHA) has confirmed that Labour Market Testing (LMT) exemptions based on occupation will NOT be available under the TSS visa.

However, LMT will not apply if it conflicts with Australia’s international trade obligations. For example, LMT exemptions will still apply if the worker nominated is a citizen/national of China, Japan or Thailand, or is a citizen/national/permanent resident of Chile, South Korea, New Zealand or Singapore.

In order to streamline processing of TSS and other temporary skilled work visas, measures are in place that include: a new standard 5-year sponsorship agreement period, a new streamlined renewal process for existing sponsors, and an automatic approval of lower-risk nomination applications lodged by accredited sponsors.

In addition, provisions are in place to assist with the transition to TSS visa. Notable provisions include:

  • All Subclass 457 nominations and visa applications lodged prior to TSS implementation will be processed under the current framework.
  • If a Subclass 457 nomination application is lodged without an associated 457 visa application being lodged before the commencement of TSS, it will effectively become “redundant” as Subclass 457 nominations cannot be linked to TSS visa applications. This applies even where the nomination has already been approved.
  • Employers who are already approved standard business sponsors for Subclass 457 will be immediately able to sponsor skilled overseas workers under the TSS visa program.
  • Subclass 457 visa holders who are to change occupations or need a new visa will be required to lodge a new TSS visa application and reference a new TSS nomination application.
  • Subclass 457 visa holders that will change employer after the implementation of TSS visa can have their new employer lodge a TSS nomination application and link it to the existing 457 visa.
  • Dependents will be able to lodge TSS visa dependent visa applications linked to pending 457 visa applications or linked to current 457 visa holders.

Skilled Occupation Lists 

Updates to the skilled occupation lists for both temporary and permanent skilled visas went into effect on January 17. These updates will only apply to applications lodged after January 17 and will not apply to pending applications. More details can be found directly at the DHA website at https://www.homeaffairs.gov.au/trav/work/work/2018-changes-of-eligible-skilled-occupations.

We can expect the next set of occupations lists to be published in March 2018. For more frequent updates, please follow us on twitter (@GrahamAdairLaw).

Immigration Issues and Government Shutdowns

At midnight on Saturday January 20, 2018, the federal government went into a limited shutdown because Congress failed to pass an appropriations bill. As of the time of this email the Senate has voted to reopen the government through February 8, 2018. Although most agencies remain shut down today, we anticipate that they will reopen starting tomorrow.

The bill passed today will fund the government through February 8, 2018. Between now and then it is expected that Congress will take up some contested issues around immigration. Because these high-profile issues are at the forefront, we could see a series of short-term funding bills to keep pressure on both sides to negotiate a final resolution of these immigration issues. This could lead us to other shutdowns in the coming weeks.

We are monitoring this situation very closely. When there are shutdowns, it can harm those seeking immigration benefits. We are taking precautions to be sure the impact to our clients is minimal. For more frequent updates, please follow us on twitter (@GrahamAdairLaw).

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.

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