Chad Graham Quoted in San Francisco Chronicle on Proposed H-1B Visa Changes

Chad Graham was recently quoted in Melia Russell’s San Francisco Chronicle article “H-1B visa shift may favor tech companies.” In the article, Chad discusses the steps employers should take to comply with the upcoming changes to the H-1B program. He also comments on USCIS’ relatively short notice and public comment period, saying it likely “means they want to push it for this year.”

To read the full article, click here.

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).

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).

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).

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).

Sam Adair Quoted in Los Angeles Daily Journal, Law360 on Immigration Policy

Sam Adair recently spoke to leading legal publications the Los Angeles and San Francisco Daily Journal and Law360 on a recent U.S. Citizenship and Immigration Services memo which could have a major impact on immigration policy in the U.S. The memo states that immigration officials will be allowed to deny outright visa applications without a Request for Evidence (RFEs) or Notice of Intent to Deny (NOIDs). According to Sam, this change could mean that a high number of applications could be denied without a chance for attorneys to provide additional evidence on behalf of their clients.

“How they’re going to determine which application is frivolous versus which is substantive is going to be arbitrary,” said Sam.

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).

USCIS Update to Form I-797 Receipt Notices for Form I-751 and Form I-829

U.S. Citizenship and Immigration Services has announced that petitioners will now receive a Form I-797 receipt when filing a Petition to Remove Conditions on Residence (I-751) and a Petition by Entrepreneur to Remove Conditions on Permanent Resident Status (I-829). The petitioners will now be able to use that receipt as evidence of continued status for 18 months past the expiration date on their Permanent Resident Card (I-551).

Previously 12 months, the continued status is being extended 18 months past expiration due to the increased processing times for Form I-751 and Form I-829 this year. This is a welcome change to working immigrants, as the I-797 receipt serves as proof of ongoing employment eligibility and the official document for international travel when a conditional green card has expired.

For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

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