Proposed Changes to H-1B Rule Could Spell Major Changes to Lottery System

In an effort to make the H-1B visa program more effective and efficient, the Department of Homeland Security (DHS) announced a new notice of proposed rulemaking. This proposed rule is also prompted by the Buy American and Hire American Executive Order, which specifically suggested reforms to the H-1B program to ensure that these visas are awarded to the most-skilled or highest-paid beneficiaries.  This proposed rule would require H-1B cap-subject petitioners to electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. Additionally, this proposed rule would place more emphasis on merit-based aspects of a petitioner. USCIS would reverse the order by which it selects H-1B petitions under the H-1B cap and the advanced degree exemption. This move is projected to increase the number of beneficiaries with a master’s degree or higher from a U.S. institution of higher education selected for an H-1B cap number, should this proposed rule take effect.  The current H-1B program allows U.S. companies to employ foreign workers in specialized occupations who posses a body of specialized knowledge and a minimum of a bachelor’s degree on a temporary basis. USCIS generally receives more petitions than required by congressional mandate. In order to reconcile […]
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USCIS and CBP Extend Pilot Program for Canadian L-1 Nonimmigrants

Earlier this year, the United States Citizenship and Immigration Services (USCIS) California Service Center (CSC) and Customs and Border Protection (CBP) Blaine, Washington, port of entry (POE) announced a new pilot program for Canadian citizens seeking L-1 nonimmigrant status under the North American Free Trade Agreement (NAFTA). The program was designed to evaluate how long USCIS needs to adjudicate these petitions and whether USCIS can support CBP through remote adjudications. The ultimate goal of this program is to increase consistency in adjudication of L-1 petitions and facilitate the adjudication and admission process of Canadians traveling to the United States as L-1 nonimmigrants.  This program allows, but does not require, Canadian citizens to request that USCIS remotely adjudicate their petitioning employer’s Form I-129 or I-129S prior to their arrival or when they arrive at the Blaine POE. In order to participate in this program, petitioners must file Form I-129 or I-129S as well as supporting evidence and documents with the CSC. Next, USCIS will receive fees, issue a receipt notice, and adjudicate the Form I-129 or I-129S. If additional evidence is necessary, USCIS will issue a request of evidence (RFE) to the petitioner.  Originally, the pilot program was only set to […]
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Foreign Affairs Manual Update Could Mean Major Implications for H-1B Adjudication

The Department of State (DOS) recently updated the Foreign Affairs Manual (FAM). This update is intended to provide additional guidance to U.S. consular officers in terms of what role they should play regarding confirming the validity of a petition being used to apply for a visa. The update encourages officers to take a more active role in verifying the information provided in a petition. Special emphasis appears to be placed on H-1B visas. The FAM is a crucial document that provides U.S. consular officers with official guidance. The FAM already contains instructions explaining that it is the responsibility of United States Citizenship and Immigration Services (USCIS) to adjudicate petitions, rather than consular officers. The manual explains that for I-129 based petitions, such as H-1Bs and L-1s, officers should not request additional evidence or send the approval back to USCIS for reconsideration unless relevant information is found during the visa interview process that was not available to USCIS. The FAM works under the assumption that a majority of approved H petitions are valid and that “disagreement with USCIS interpretation of the law or the facts … is not sufficient reason to ask USCIS to reconsider its approval of the petition.”  Despite […]
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Proposed H-1B Rule Could Overhaul Selection Process

A proposed rule could result in major changes in the H-1B visa category. This rule would change the H-1B visa lottery process and could also alter the educational composition of visa holders. Currently, USCIS offers 65,000 standard H-1B visas for skilled workers. Additionally, USCIS offers another 20,000 visas for workers with a U.S. master’s degree or higher. Any leftover visas from the second category are sent to the general pool.  The proposed rule would change the way this process works. Under this rule, USCIS would place all applicants in the general 65,000 pool. If the general cap was reached, any additional U.S. advanced degree holders would then be redirected to the 20,000 pool, or what is commonly known as the “master’s cap.” According to a regulatory plan, the Trump administration plans to publish the proposal within the month. The administration is projecting that this change could mean a fifteen percent increase in H-1B visa holders with U.S. advanced degrees. However, this could make it increasingly difficult for companies to hire workers under the H-1B program.  If you are interested in learning more about the H-1B category, please contact our office to schedule a consultation with one of our attorneys today!
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Citing Major Backlogs, USCIS Extends and Expands Suspension of H-1B Premium Processing

U.S. Citizenship and Immigration Services (USCIS) recently announced that it will be expanding and extending the temporary suspension of H-1B premium processing. According to USCIS, these suspensions will continue until February 19, 2019. This is an effort to clear the backlog of H-1B visas in the application system. All Request for Premium Processing Service forms will be rejected and if a petitioner submits a combined check for the premium processing and H-1B fees, both forms will be rejected.  Previously, the suspension was expected to last until September 10, 2018, but will now stay in effect until February of 2019. This suspension applies to all H-1B petitions filed at the Vermont and California Service Centers. The premium processing fee will be refunded if premium processing was requested before September 11, 2018, and USCIS did not take adjudicative action on the case within the 15 calendar-day processing period.  It is important to note that there are some exceptions to this expansion. The suspension does not apply to cap-exempt petitions filed exclusively at the California Service center because the employer is cap exempt or because the beneficiary will be employed at a qualifying cap exempt institution, entity or organization. In addition, petitions filed […]
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Premium Processing Fee to Increase Beginning September 30

The Department of Homeland Security is increasing the Form I-907 premium processing fee from $1,225 to $1,410 beginning September 30, 2018. The final rule is scheduled to be published in tomorrow’s Federal Register. Applications postmarked on or after September 30, 2018 must include the new fee. Premium processing is an optional fee that allows employers to request adjudication of an application within 15 calendar days. Premium processing is currently available for certain employment-based immigration petitions filed with USCIS forms I-129 and I-140. According to DHS, the new fee represents a 14.92% increase, the percentage change in inflation since the fee was last changed from $1,000 to $1,225 in 2010. This ultimately means that expedited adjudication of an eligible employment-based petition will become more expensive beginning September 30. Employers should take this increase into consideration when budgeting for immigration-related expenses and determining if premium processing is necessary. If you have questions on premium processing an employment-based application, please contact our office to schedule a consultation with an attorney today!
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National Interest Waivers and Physicians

The employment-based second preference visa (EB-2) is reserved for individuals holding advanced degrees or its equivalent, or foreign nationals who possess exceptional ability. Generally, EB-2 petitions must be accompanied by an approved labor certification from the Department of Labor. That lengthy process, however, can be waived by requesting a National Interest Waiver (NIW). A NIW permits an individual who qualifies under either EB-2 subcategories (advanced degree or exceptional ability) to forego the PERM process, which is the procedural pathway to obtaining a Labor Certification, and receive a green card without having to test the labor market. Essentially, a NIW is just an EB-2 applicant asking the government to waive the Labor Certification requirement, because their employment would be in the interest of the United States. Why is this significant? Well, the PERM process is often lengthy and expensive, as it requires an employer to conduct a series of recruiting activities before submitting a labor certification application, so bypassing this step has obvious benefits. How to Qualify for a National Interest Waiver as a Physician The Immigration and Nationality Act (INA) does not specifically list the occupations that would qualify an applicant for a NIW. Rather, seven criteria are listed to […]
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