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).

Preparing for H-1B Cap Season

H-1B cap season is nearly upon us, and it’s in your best interest to get a head start on preparing your petition to ensure a timely submission.

United States Citizenship and Immigration Services (USCIS) begins accepting H-1B applications for FY 2019 on April 2nd, 2018. The H-1B Regular quota is 65,000 visas, and the H-1B Master’s quota is 20,000 visas.

If more than 65,000 petitions are submitted during the first five days of the acceptance period, USCIS uses a lottery system to select applicants. The lottery system is conducted through a random, computer-generated process. The likelihood of the need for a lottery is high – for FY 2017, USCIS received 236,000 H-1B applications within five days of opening application acceptance, and 199,000 applications for FY 2018.

In the case of a lottery, USCIS handles it in two segments. First is the lottery for individuals qualifying for the 20,000 set aside for those with advanced U.S. degrees. Once that lottery is complete, any unselected in the advanced cap are put into the regular lottery of 65,000. USCIS will issue receipt notices on cases selected in the lottery. We expect to start seeing receipt notices toward the end of April, and more steadily through May. Unfortunately, USCIS does not begin issuing rejection notices on cases not selected in the lottery until most receipts have gone out, so there tends to be a period of uncertainty toward the end of May and into June.

USCIS has telegraphed that there will be a higher level of scrutiny on case review than we have seen in years past. We are aware of the areas of emphasis and will plan to prepare cases accordingly to reduce the number of requests for evidence and avoid denials.

For the greatest chance of obtaining an H-1B, the most important step is timely filing. In the weeks and months leading up to the April 2nd acceptance date, be sure to stay on top of all required paperwork. The attorney handling your case can help guide you through the process and keep you informed of everything that is needed before submitting. Setting aside a reasonable amount of time to get required forms completed thoroughly will save you plenty of stress come April 2nd.

Sam Adair Speaks with Voice of America News on Greater Scrutiny of Nonimmigrant Work Visas

Sam Adair was recently quoted in Esha Sarai’s Voice of America article “Greater Scrutiny Set for Nonimmigrant Work Visa Renewals.” In the article, Sam discusses potential effects of the USCIS’s new policy that visa renewal applications must face the same scrutiny as the original applications.

“…I think what we’ll see is just an increase in the number of requests for evidence, an increase in the delays on the adjudication of these petitions, and really it’s going to just result in more costs for the employers who are filing these petitions,” Adair told VOA.

Click here to read the full article.

Sam Adair Talks to Daily Journal on Tightened Nonimmigrant Visa Scrutiny

 

Sam Adair was quoted in the following article, which appeared in the Los Angeles and San Francisco Daily Journal on October 26, 2017.

US government tightens nonimmigrant work visa scrutiny

By Chase DiFeliciantonio

In a policy shift, the federal government announced that applications to extend certain work visas will now be scrutinized in the same way as the initial applications.

U.S. Citizenship and Immigration Services said the change would apply to certain nonimmigrant visas and is needed to combat fraud and protect U.S. workers.

According to Sharon Rummery, a spokesperson for the agency, the change was implemented Monday to comply with an executive order signed in April by President Donald J. Trump.

“The burden of proof is and should rightly be on the petitioner regardless of whether we’ve approved the request in the past,” Rummery said. “Our determination should be based on the merits of each case.”

Some business immigration attorneys decried the move as political and said it will create more work for them and increase expenses for their clients without real benefits.

Mitch Wexler, a Los Angeles- and Irvine-based partner at Fragomen, Del Rey, Bernsen & Lowey LLP, wrote in an email that the change is unnecessary and counterproductive.

“[It’s] ridiculous for the agency to no longer give deference to its previous adjudications,” Wexler wrote. “They get no additional filing fees for RFEs [Requests for Evidence] and will introduce even more uncertainty into the workforce of the biggest U.S. employers.”

The immigration service can ask for more information about an application through a Request for Evidence when it believes and application lacks required documentation or evidence.

According to a news release from the agency, the previous policy deferred to the findings of an already approved application, as long as the key elements were unchanged and there was no evidence of a material error or fraud.

Rummery said the change was needed to verify nothing had changed between an initial application and an application for an extension, adding in an email that the previous policy was outlined in an April 2004 policy memo and added to in a subsequent August 2015 policy memo.

“We think this is going to result in an increase in delays and an increase in expenses for employers who are filing these extension applications for their employees,” said Sam Adair, a business immigration attorney and an Austin, Texas-based partner at Graham Adair Inc.

Adair said L-1 intracompany transfer visas, O-1 extraordinary ability visas, TN visas based on the NAFTA treaty, and H-1B nonimmigrant work visas could be affected by the change.

“This will be especially true in O-1 and L-1 applications when there’s a fair amount of subjective evidence that’s going to be required for those petitions,” Adair said, adding he was less concerned about increased scrutiny of H-1B visas because they require a more objective standard for evidence.

“This is very much in line with previous efforts by the administration on immigration,” Adair added. “It’s going to create additional uncertainty for people who are already here.”

Suspension of Non-Immigrant Visas for U.S. Citizens to Turkey

The United States and Turkey have both suspended all non-immigrant visas effective immediately on October 8, 2017. The indefinite suspension prevents Turks from traveling to the US, and vice versa, on non-immigrant visas, which include tourist, business, student, and official/diplomatic visas. This applies to all sticker visas, electronic visas, and border visas.

The suspensions were prompted by the recent arrest in Istanbul of a U.S. consulate employee, who is a Turkish national. The arrest was made in connection with the employee’s alleged ties to cleric Fethullah Gulen, who has been in exile from Turkey and living in the U.S. since 1999. The Turkish president has blamed Gulen for last year’s military coup attempt in the country, and has pushed for the US to extradite him.

Please reach out to the attorney overseeing your case or Sam Adair for advice on next steps, and follow us on Twitter for real-time updates as they become available.

USCIS Resumes Premium Processing for Some Categories of Applicants Seeking H-1B Visas

U.S. Citizenship and Immigration Services (USCIS) has resumed premium processing of all H-1B visa petitions that fall under the Fiscal Year 2018 cap. Set at 65,000 visas, the 2018 cap was reached in April. Premium processing was also resumed for the 20,000 petitions annually set aside for workers with a master’s degree or higher educational degree from the United States.  If your H-1B petition was filed under the FY2018 cap and has not yet been adjudicated it is now eligible for premium processing.  

Additionally, USCIS had previously resumed premium processing for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program, H-1B cap exempt employers and for interested government agency waivers. Processing for all other H-1B petitions remains temporarily suspended; however, USCIS indicates that premium processing for other H-1B applications will resume in the near future.  

Please reach out to the attorney overseeing your case or Sam Adair for advice on next steps, check our website for further updates, and follow us on Twitter for real-time updates as they become available.

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