Wednesday, April 13, 2016

April Immigration Bulletin is Out!

H-1B Cap Updates for FY 2017 - Over 236,000 H-1B Petitions Filed and Lottery Completed

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USCIS just announced that it received over 236,000 cap-subject H-1B petitions. This number is just slightly higher than last year when USCIS received 233,000 petitions. 

We don’t yet have the number of U.S. Master’s vs. Bachelor’s degree petitions received.   We know that more than 20,000 U.S. Master’s petitions were received. 
USCIS conducted the lottery process April 9th, 2016 and selected the required 65,000 Bachelor’s and 20,000 U.S. Master’s petitions. Petitions not selected will be returned over the following months. Prior to returning those unselected petitions, USCIS will start issuing receipts for those petitions selected starting with those that were filed via premium processing. 
To read USCIS press release click here.
As we track the H-1B filings, we will provide updates via our blog and newsletter.  In the meantime, this news alert contains several pieces of information relating to the H-1B process should you not be selected for the H-1B.
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Back Up Plans for Immigrants Who Don't Secure an H-1B Visa

While many foreign nationals might have to wait until next April for another chance at H-1B status, the following options should be considered for affected employees:

H-1B’s that Are Cap-Exempt
These include petitions for employment at an institution of higher education, or a related or affiliated nonprofit entity, nonprofit research organization, or governmental research organization and physicians on J-1 visas who receive H-1B status through the Conrad 30 program on the basis of agreeing to work in medically underserved areas for three years. H-1B visas are also available for beneficiaries filing for amendments, extensions, and certain employment transfer.

STEM/OPT Extension and F-1/CPT
A 24-month optional practical training (OPT) for foreign nationals with advanced U.S. degrees in designated Science, Technology, Engineering or Math (STEM) fields.  A 7-month OPT extension for those currently using the 17-month extension. The new 24-month STEM OPT rule allows DHS to designate "related fields" on the STEM list. 

"In general, related fields will include fields involving research, innovation, or development of new technologies using engineering, mathematics, computer science, or natural sciences (including physical, biological, and agricultural sciences)." To qualify for the STEM/OPT, employers must be enrolled in E-Verify and complete an individualized Form I-983 "Mentoring and Training Plan".  Students must work with their DSO to file for the STEM/OPT benefit.    

Foreign students should also look into continuing in F-1 status and explore with their DSO internship opportunities under curricular practical training (CPT).

Visas for Professionals from Canada, Mexico, Australia, Chile and Singapore
Certain Canadian and Mexican professionals might qualify for a TN visa available under the NAFTA.   To qualify, the foreign national must have the required nationality, be offered a temporary position by a U.S. employer in one of the professions specified in Appendix 1603.D.1 of NAFTA and possess the degree or credentials required under NAFTA for the position.  

Nationals of Australia should consider the E-3 visa and nationals of Chile and Singapore should consider the H-1B1 visa.

Other Work Visa Categories
The L-1 visa, intra-company transferee, is available to certain employees who have worked for a parent, branch, subsidiary or affiliate of the U.S. employer outside of the U.S.   To qualify, the immigrant must have worked for at least one consecutive year full time in the prior three years.  The employer must seek to transfer the employee to the U.S. to work as a manager/executive or specialized knowledge professional.

The O-1A is available to individuals who can demonstrate extraordinary ability in the sciences, education, business or athletics.  The evidence must show that the candidate is among the small percentage of people who have risen to the very top of their field of endeavor, as demonstrated by sustained international or national recognition for their achievements in the field.

The E-1 or E-2 is available to principals and employees of companies whose country of majority ownership has a treaty of commerce with the U.S.  E-1 treaty trader status is available to businesspersons who seek to engage in substantial trade in goods or services.  The E-2 treaty investor status is available to individuals who seek to develop and direct the operations of a business in which the foreign national or his/her employer has invested or is in the process of investing a substantial amount of capital.

Unfortunately, the currently insufficient number of H-1B visas for highly skilled temporary workers and limited number of alternatives is creating significant challenges for U.S. employers that rely on foreign workers, particularly in the high technology and health care industries.  Early planning, creativity, and flexibility are critical.
We will continue to monitor and provide updates on further developments in immigration law, including any potential changes to the H-1B program and visa availability.

Limited Window of Opportunity to File for Seven Month STEM OPT Extension Under Revised Rule

Foreign students currently on STEM OPT may apply for an additional seven months to benefit from the new 24-month period of STEM OPT rule. But, the time frame to apply is limited. According to the latest USCIS update, applicants must submit required paperwork to request the extension between May 10 – August 8, 2016.   
To qualify for this seven-month extension, students must have at least 150 calendar days remaining before the end of the 17-month OPT period at the time the Form I-765 is filed. They must also meet all other requirements for the 24-month STEM OPT extension. The 150-day minimum remainder of OPT time is aimed to provide the student with at least one year of practical training under the extension. Any 17-month STEM OPT EAD that USCIS issued on or before May 9, 2016, will remain valid until the EAD expires, is terminated or revoked. 
DHS will not automatically convert 17-month extensions into 24-month extensions. Students considering applying for this extension should contact their DSO as soon as possible to obtain additional guidance and authorization to proceed with the application.  

Traveling Abroad While a Change of Status is Pending is Fatal

Often foreign nationals are admitted in one category and apply for a change of status (COS) to another category while in the U.S. For example, we just filed cap-subject H-1B petitions for many immigrants who were in F-1/OPT status requesting a COS to H-1B. If an immigrant applies for a COS and travels abroad while the petition is pending, their application would be considered abandoned and USCIS would issue a denial. Traveling abroad will also result in a denial of any Form I-765, Application for Employment Authorization, filed before the COS is approved. Therefore, traveling abroad can be fatal to your filing.

Expired I-9 Form Currently in Use

The current Form I-9 Employment Eligibility Verification expired March 31, 2016. However, USCIS has allowed employers to continue to use the current version of the Form I 9 until additional comments are received and a new form is finalized and approved.

Public comments may be submitted until April 27, 2016.  In response to the public comments already received, USCIS has made changes to the proposed new form including:
  • Validations on certain fields to ensure information is entered correctly;
  • Drop-down lists and calendars;
  • Embedded instructions for completing each field;
  • A dedicated area to enter additional information that employers are currently annotating in the margins;
  • A quick-response (QR) code that generates once the form is printed to facilitate audits; and
  • Removing the requirement that foreign nationals provide both their Form I-94 number and passport information in Section 1.
Employers should continue to use the current version of the Form I-9 until the new proposed version is released. USCIS will post the final version on its website once it is available. We will post updates on this important issue as they are made available.

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