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.

USCIS Fee Increase Chart

During a stakeholder meeting, USCIS clarified that it conducts a fee review every two years to make sure that the fee structure captures the costs of services.  This 21% weighted average fee increase is the first in 6 years.

Applications using old fees that are postmarked before December 23 but received after this date will be accepted.  However, applications postmarked on or after December 23 must include the new fees or they will be rejected.

These are the filing fee increases for the most common employment-based petitions:

 

Form Old ($) New ($)
I-129 (H-1B, L-1, O-1, etc.) 325 460
I-539 (H-4, L-2, O-3, etc.) 290 370
I-140 (immigrant petition) 580 700
I-485 Adjustment of Status 985 + 85 (bio fee) 1140 + 85 (bio fee)
I-485 (child) 635 750
I-131 (adv parole, reentry prmt) 360 575
I-765 (EAD work authorization) 380 410
N-400 (citizenship) 595 + 85 (bio fee) 640 + 85 (bio fee)
Premium Processing Fee 1225 1225

 

Premium processing for I-485 (Adjustment of Status) applications will still not be available after the fee increase. For questions, please feel free to contact your Graham Adair attorney.

 

 

DHS Proposes Increase in Filing Fees

The Department of Homeland Security (DHS) proposes to increase USCIS filing fees, as current fee levels are expected to produce an annual shortfall of $560 million. This is because the anticipated nearly $2.5 billion in revenue from current filing fees will not meet the projected budget of over $3 billion.

These proposed increases, however, are not final and will not take effect immediately: First, there will be a period reserved for public comment, after which USCIS will release a final rule outlining the fee increases.

Below are some of the proposed changes:

• Increase from $325 to $460 for Form I-129, which is used for H-1B, L-1, TN, and O-1, among other nonimmigrant worker categories.
• Increase from $580 to $700 for Form I-140 for those seeking permanent residence based on employment.
• Increase from $985 to $1140 for Form I-485, application for adjustment of status (green card).
• A new fee of $3,035 for the Employment Based Immigrant Visa, Fifth Preference (EB-5) Form I-924.

Premium Processing fees, however, will remain unchanged.

The recent increase in fees for certain H-1B and L-1 Visa Petitioners, signed into law by President Barack Obama on December 18, 2015, will remain in effect and unchanged. Specifically, petitioners employing 50 or more employees in the United States, with more than 50% of those employees in H-1B or L-1 status will need to pay an additional fee of $4,000 for H-1B and $4,500 for L-1 petitions if they are filing:

• Initially to gain status; or
• To change employers while remaining in the same status.

We will continue to monitor developments on these changes and will publish a news alert when the final rules are published.

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.

Annual H-1B Cap – 236,000 Received

Today U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough H-1B petitions to meet the annual cap of 65,000, along with the additional 20,000 H-1B petitions reserved for the advanced U.S. degree cap.

For the filing period beginning April 1, 2016, USCIS received over 236,000 H-1B petitions, including those filed for the master’s cap. USCIS is using a computer-generated lottery process to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the master’s cap exemption. They will reject and return all unselected petitions with their filing fees. We expect that this process will take several months.

USCIS conducts the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the lottery for the 65,000 limit.

USCIS will begin premium processing for H-1B cap cases no later than May 16, 2016. Receipt notices for premium processing cases have already begun to be issued.

Petitions that are exempt from the cap will still be accepted and processed. This includes H-1B extensions and amendments, as well as petitions for change of employer.

We will stay apprised of developments related to the annual H-1B cap and will issue updates as they become available. Please contact Graham Adair with any questions.

DHS Proposes New STEM OPT Extension Rule

The U.S. Department of Homeland Security is expected to publish new proposed STEM OPT regulations on October 19, 2015. There would then be a 30-day comment period after which the comments would be reviewed and a final rule will be published in the Federal Register. The proposed regulations will allow for a 24-month extension of OPT status for F-1 students who have a designated STEM degree. This 24-month STEM OPT extension will replace the previous 17-month extension that was available until the regulations allowing the extensions were vacated by a Federal Court in August of this year. The proposed rule would also include the previous H-1B Cap Gap provisions that would allow individuals in the U.S. in F-1 OPT status to remain work authorized when their OPT status expires and they have a pending or approved H-1B application that will become effective on October 1st of the same year, so long as their H-1B application was filed and pending at the time their OPT status expires.

The new regulations should go into effect before the current STEM OPT extension regulations are set to be revoked in February 2016.

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.

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