H-1B Pilot Program for Domestic Visa s Runs Through April 1
Categories News & Updates

H-1B Pilot Program for Domestic Visas Runs Through April 1

The U.S. Department of State (DOS) launched a pilot program in late January, a program that will allow certain types of H-1B workers to renew their nonimmigrant visas domestically. The program only runs through April 1, so interested applicants should get their paperwork in as soon as possible.

Also note that the DOS is only accepting a limited number of applications. If the limit is reached prior to April 1, no further applications will be received. At the time of this writing, the program was only 30 days old. It appears as though the DOS is still taking applications at this time.

Under the program, only 20,000 H-1B visas will be issued. As with all things immigration related, applicants must meet minimum eligibility requirements to be considered. If you or one of your employees is interested in applying, Graham Adair’s business immigration attorneys would be happy to help guide the process.

Eligibility Requirements

The eligibility requirements for the program are rather long and detailed. Here is our summary, in the simplest possible language:

  • Applicants must be seeking to renew an H-1B nonimmigrant visa only.
  • The visa being renewed must have been issued by either U.S. Mission Canada or U.S. Mission India.
  • The visa being renewed must have been issued between 01/01/20 and 04/01/23 (Canada) or 02/01/21 and 09/30/21 (India).
  • Applicants must not be subject to a nonimmigrant visa issuance fee.
  • Applicants must be eligible for the in-person interview waiver.
  • Applicants must have submitted the appropriate fingerprints for the previous application.
  • The prior visa cannot include a ‘clearance received’ annotation.
  • There cannot be any visa ineligibility requiring a waiver.
  • Applicants must be among those most recently admitted to the U.S. under H-1B status.
  • Applicants must be currently maintaining H-1B status in the U.S.
  • Applicants must possess an approved and unexpired H-1B petition.
  • An applicant’s authorized admission must not have yet expired.
  • Applicants must intend to reenter the U.S. under H-1B status after temporarily going abroad.

The DOS estimates that applications will be processed within 6-8 weeks from the date proper documentation is received by the Department. Note that application processing does not guarantee the issuance of an H-1B visa.

Applications may not be adjudicated if all the requirements are not met. Those sent back without adjudication are not subject to a refund of the MRV fee, so keep that in mind. Anyone whose application is returned without adjudication will not be issued a visa domestically. Proper steps will have to be taken to renew the applicant’s current visa under standard protocols.

Another Complicated Program

We wish we could say that the pilot program is easy to navigate. We can’t. We have yet another complicated program from the DOS, a program still designed with good intentions despite being difficult to navigate. Unfortunately, we have come to expect that from the federal government. Complications come with the territory.

From our perspective, it is all the more reason to work with an experienced business immigration attorney on such matters. Experienced attorneys are very familiar with the rules, regulations, paperwork, and deadlines. An experienced attorney is the most qualified person to advise an employer or immigrant worker trying to navigate visa renewal.

It will be interesting to see where the pilot program goes from here. If it is a success, it may become a permanent fixture in U.S. immigration. Otherwise, expect the program to go away as quickly as it was launched. We will keep an eye on things here at Graham Adair.

Is the H-1B Visa Appropriate for Nonimmigrant Healthcare Workers
Categories News & Updates USCIS

Is the H-1B Visa Appropriate for Non-Immigrant Healthcare Workers?

Labor shortages in the healthcare system continue unabated. Healthcare providers trying to fill open jobs need to look for skilled talent wherever they can find it. Sometimes that means looking overseas. Finding skilled workers overseas is the easy part; getting them here is much harder. For example, what is the most appropriate visa for non-immigrant healthcare workers?

We are often asked if the H-1B visa is appropriate. The answer is not totally straightforward, but certain healthcare positions are indeed covered by the H-1B visa.

A Serious Problem

Staffing shortages in healthcare represent a serious problem on multiple levels. For starters, being unable to maintain sufficient staffing levels directly impacts patient outcomes. It impacts quality of care and safety. But that’s not all.

Recent survey data from Experian Health indicates that nearly every healthcare institution in this country is being impacted by staffing shortages. Some 70% of the survey respondents said the biggest impact is being seen in reimbursements. Denial rates are going up because providers do not have enough staff to properly manage claims.

This data paints a bleak picture. Healthcare is hurting right now. It is dealing with insufficient talent to staff hospitals, clinics, group practices, etc. But again, is the H-1B visa a partial solution? It could be.

How the H-1B Visa Applies

Despite its long and complicated title, the primary focus of the H-1B visa is highly skilled workers in specialty occupations. Certain healthcare jobs fit the bill. Think of hospitalists, physicians, surgeons, advanced practice nurses, RNs and LPNs, dentists, and therapists. Even some medical research jobs are covered under H-1B visa guidelines.

Nearly all clinical positions can be filled by non-immigrant workers under H-1B status. Likewise, a large number of technical positions are also covered. If there is any chance that your organization could fill specialty jobs through non-immigrant workers, we encourage you to at least look into the H-1B visa program.

Other Options

While the H-1B visa is arguably the most common choice for non-immigrant workers in healthcare, there are other options when H-1B does not apply. Here are a few of them:

  • H-2B Visa – The H-2B visa is intended primarily for temporary non-agricultural workers. It can be applied to certain types of healthcare workers employed on a seasonal or peak basis. During periods of extraordinarily high demand, the H-2B represents one avenue for bringing in more workers.
  • J-1 Visa – The J-1 visa program targets educational and cultural exchange program participants. Medical school graduates can utilize the J-1 to take advantage of clinical training programs and fellowships in the U.S.
  • O-1 Visa – The O-1 visa is normally associated with athletes, artists, and the like. But it is appropriate for highly skilled healthcare professionals with extraordinary abilities. Surgeons and medical researchers immediately come to mind. However, note that applicants must demonstrate their extraordinary abilities to qualify.

There are no easy answers to healthcare’s ongoing staffing shortages. We obviously need to expand educational programs and find ways to encourage American students to choose healthcare careers. We also need some systemic changes within our system to prevent healthcare professionals from leaving their careers in search of greener pastures.

In the meantime, foreign born healthcare professionals with non-immigrant visas are helping to alleviate staffing shortages, at least to some degree. If you are a healthcare administrator and need assistance navigating U.S. immigration to bring non-immigrant workers here, we can help. Contact us to learn more.

Categories News & Updates USCIS

Chart Showing USCIS Fee Increases

See the summary chart of fee increases at the bottom of this article.

USCIS has issued a new fee schedule that will go into effect on April 1, 2024. USCIS has not done this sort of fee increase since December of 2016. USCIS states that the increases are necessary to improve processing times, considering increasing costs due to inflation. USCIS had issued a proposed rule, followed by a notice and comment period. There were few changes to the proposed fees after the notice and comment period.

First, the good news. Because the new fees go into effect on April 1st, the increased H-1B registration fee will not be impacted for this year’s H-1B lottery.

On the other hand, U.S. companies are being asked to shoulder costs for administering the asylum program, wherein many applicants are unable to pay the costs associated with processing their application. The additional $600 fee will be assessed to companies filing cases on Form I-129, which includes H-1Bs, as well as Form I-140 for those going through the green card process. The fee is reduced to $300 for organizations with fewer than 25 employees, and $0 for nonprofit organizations.

Employers currently pay a $500 fraud prevention fee on many cases, which is a 1-time fee. They also pay a $1500 education and training fee on H-1Bs ($750 for companies with 25 or fewer employees), which is typically paid twice – once on the employee’s initial petition and again on the first extension. However, this new asylum program fee does not seem to have any such limits. This means that the fee could be paid many times by companies sponsoring an H-1B employee, for example, from India who requires many extension before being able to receive a green card.

Here is a summary of the fee increases:

Case Type Current Fee New Fee
4/1/2024
Percent Change  
EMPLOYMENT-BASED PETITION FEES
Standard Asylum Program Fee (applicable to I-129 and I-140 petitions) N/A $600 N/A
Asylum Program Fee – Small Employers (25 employees or less) N/A $300 N/A
Asylum Program Fee – Nonprofits N/A $0 N/A
NONIMMIGRANT      
H-1B Registration Fee $10 $215 2050%
Form I-129 H-1B and H-1B1 Classifications $460 $780 70%
Form I-129 H-1B and H-1B1 Classifications – Small Employers and Nonprofits $460 $460 0%
Form I-129 H-2B – Named Beneficiaries $460 $1,080 135%
Form I-129 H-2B – Named Beneficiaries – Small Employers and Nonprofits $460 $540 17%
Form I-129 H-2B – Unnamed Beneficiaries $460 $580 26%
Form I-129 H-2B – Unnamed Beneficiaries – Small Employers and Nonprofits $460 $460 0%
Form I-129 L Classification $460 $1,385 201%
Form I-129 L Classification – Small Employers and Nonprofits $460 $695 51%
Form I-129 O Classification $460 $1,055 129%
Form I-129 O Classification – Small Employers and Nonprofits $460 $530 15%
Form I-129 E-1, E-2, E-3, TN, H-3, P, Q, R Classifications $460 $1,015 121%
Form I-129 E-1, E-2, E-3, TN, H-3, P, Q, R Classifications – Sm Emp and NP’s $460 $510 11%
Form I-539, Application to Extend/Change Nonimmigrant Status – Online $370 $420 14%*
Form I-539, Application to Extend/Change Nonimmigrant Status – Paper $370 $470 27%*
IMMIGRANT      
Form I-140 Immigrant Visa Petition $700 $715 2%
Form I-526, Immigrant Petition by Standalone Investor $3,675 $11,160 204%
Form I-526E, Immigrant Petition by Regional Center Investor $3,675 $11,160 204%
Form I-485, Application to Register Permanent Residence or Adjust Status $1,140 $1,440 26%
Form I-485, Application to Register Perm. Res. or Adjust Status (under 14) $750 $950 27%
Form I-765, Application for Employment Authorization – Online $410 $470*** 15%*
Form I-765, Application for Employment Authorization – Paper $410 $520*** 27%*
Form I-131, Application for Travel Document $575 $630 10%
Form I-90, Application to Replace Permanent Resident Card – Online $455 $415 -9%
Form I-90, Application to Replace Permanent Resident Card – Paper $455 $465 2%
CITIZENSHIP      
Form N-400, Application for Naturalization – Online $640 $710 11%
Form N-400, Application for Naturalization – Paper $640 $760 19%

 

Please contact us at info@grahamadair.com; (408) 715-7067 with any questions.

Categories News & Updates USCIS

USCIS Organization Account Rollout Next Month

Earlier this month, we were excited to share with you that the USCIS would be allowing for e-filing of H-1B cap-subject petitions. On Wednesday, January 24, 2023, USCIS held a webinar for legal representatives on their new online organization accounts rollout. The enhancements to their online account system, which include the ability to file H-1B petitions and premium processing requests online, go live February 2024, just in time for the FY2025 H-1B registration period and H-1B cap season petition filings.

USCIS hopes that these new features will foster further collaboration between legal representatives and H-1B petitioning companies. With the rollout, H-1B petitioning companies will assume a larger role in the H-1B registration process and online filing system with the creation of company groups. Each company group will have one or more administrator who has the authority to pay for and file petitions on behalf of the company as well as group members.

As of now, there are limitations to the new organization accounts system that will render law firms unable to implement on a large scale. For instance, concurrent filing of H-1B petitions and H-4 dependent applications is not going to be available in February, and the ability to upgrade a paper I-129 petition to premium processing will also not be available in February.

USCIS’s mission to modernize its filing system is a welcome sign that other filing and case processing enhancements may be coming in the near future. We are monitoring these changes and will provide updates as they are available.

Please contact us at info@grahamadair.com or (408) 715-7067 with questions about this topic or other immigration inquiries.

 

How Chevron's Fate in SCOTUS Could Impact Immigration Cases
Categories News & Updates

How Chevron’s Fate in SCOTUS Could Impact Immigration Cases

Two cases now before the U.S. Supreme Court (SCOTUS) have the potential to significantly alter both past and future immigration cases, depending on how the court rules. The two cases call into question the 1984 Chevron U.S.A., Inc. v. Natural Resources Defense Council. Should the court decide to overturn Chevron, or limit its implications, scores of past cases might have to be reviewed.

SCOTUS is expected to rule on the case by the end of this session. As things currently stand, it appears as though the court may be ready to limit Chevron’s scope or overturn it all together. How will that affect future immigration cases? It could force courts to take a more active role in determining outcomes rather than deferring to federal agencies.

Basics of Chevron Deference

Without getting mired in the details, the Chevron case back in 1984 led to what is now known as Chevron deference. Chevron deference allows courts to defer to administrative agencies and their interpretations of the statutes they are tasked with administering. When there are ambiguities in said statutes, government agencies are generally given pretty wide latitude to interpret applications.

Immigration cases, whether they be related to business immigration or more general in nature, are decided largely by the USCIS and BIA, by way of the U.S. Department of Justice and the U.S. Department of State.

In the two cases now before the court, attorneys for both plaintiffs argue that administrative agencies only have the authority to interpret ambiguous statutes if the statutes themselves grant such authority. In the absence of such authority, it is up to the courts to determine what laws actually mean. It is the court’s purview to determine congressional intent as a means of providing good checks and balances our constitution calls for.

Lawyers for the defendants take the opposite few. They believe Congress always intended to give administrative agencies great latitude in interpreting statutes, especially since statutes cannot account for every single detail or possibility that might come up. That brings us back to the main question of how an overturned or limited Chevron might impact immigration.

Four Considerations

There are countless ways an overturned or limited Chevron could affect immigration cases. At the top of the list would be a forced review of past cases decided unfavorably by BIA. We can imagine a whole host of cases for which attorneys would seek review. That alone could open a Pandora’s box that immigration attorneys shudder to think about. But above and beyond past reviews, here are four considerations for future cases:

  1. Less Leeway – Any restrictions to Chevron would mean less leeway for administrative agencies. For example, this could make it more difficult for an employer to obtain a more favorable interpretation that would grant a positive H-1B decision.
  1. Less Consistency – One could make the argument that Chevron’s current application creates more consistency in immigration decisions. Restricting Chevron would lead to less consistency. That could make the H-1B process even more difficult.
  1. Court InvolvementChevron restrictions would ultimately lead to more court involvement in immigration cases. With less room for interpretation, administrative agencies would have to rely more on the courts for adjudication.
  1. Congressional Involvement – Restricting Chevron will almost certainly lead to Congressional action as lawmakers attempt to tighten up ambiguous statutes. That could go either way for immigration.

As immigration attorneys, we will keep an eye on the two pending cases in anticipation of an early summer ruling. In whichever way SCOTUS rules, Chevron will be impacted. In turn, there will be an impact on immigration cases moving forward.