H-1B filing deadline and delays with iCERT

The Fiscal Year 2017 H-1B visa filing deadlines are fast approaching and employers should plan accordingly.  USCIS will accept H-1B petitions subject to the annual cap only during the first five business days in April: Friday, April 1, 2016 through Thursday, April 7, 2016. Therefore, we urge employers to contact us as early as possible to review the requirements of the H-1B program, discuss the timing for drafting the FY2017 H-1B petitions, and to strategize about other possible options for employment-based visas for professionals and recent graduates. 
 
Part of the reason behind the urgency is the Department of Labor's Office of Foreign Labor Certification ("OFLC") announcing on January 27, 2016 the agency was experiencing technical network problems supporting its iCERT visa portal system, resulting in delays in the processing of Labor Condition Applications with the Department of Labor ("DOL"). Before an employer can file an H-1B visa application with USCIS, the employer must first obtain a certified Labor Condition Application from DOL via its online iCERT system. While processing through iCERT typically takes 5 - 7 business days, the announcement from OFLC did not provide employers with a timeframe or expected delay time estimate as a result of the performance issue "significantly impacting" OFLC's ability to process applications.
 
Please contact us at info@iandoli.com or call us at 617-482-1010 with questions about H-1B visas and the application process.

Changes to Visa Waiver Program are now in effect

At the end of 2015 and in the wake of the recent terror attacks in Paris, Congress made significant changes to the Visa Waiver Program ("VWP"), which was created in 1986 and allows citizens of certain countries to enter the U.S. as a tourist without a visa for up to 90 days. In the U.S. this program is administered through an online portal called the Electronic System for Travel Authorization, commonly referred to as ESTA.  Previously eligible persons are now prohibited from using visa waiver if they have traveled to Iran, Iraq, Syria and Sudan since March 1, 2011, or if they are dual nationals of these countries.  There are limited exceptions (for example, travel to one of the countries on the list to carry out military service or official government business with a VWP participating country) which can be disclosed on the new ESTA application due to be released later this month.

On January 21, 2016, U.S. Customs and Border Patrol ("CBP") announced that affected individuals began receiving emails notifying them they are no longer eligible to use ESTA. Those foreign nationals will be required to seek a B-1 or B-2 visitor visa at a U.S. consulate or embassy abroad if they wish to travel to the U.S. in the future.

CBP published a new set of Frequently Asked Questions on its website concerning the changes to the VWP and ESTA.  If you have questions about the changes to the Visa Waiver Program, please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com.

TPS update: Sudan, South Sudan, Yemen and proposal for adding several Central American countries

Secretary of Homeland Security Jeh Johnson has announced several important designations and deadlines related to Temporary Protected Status ("TPS") for nationals from Sudan, South Sudan, and Yemen: 

• On January 25, 2015, DHS announced it was extending TPS for nationals of Sudan.  Current TPS Sudan beneficiaries who wish to extend their TPS status must re-register during a 60-day period that runs from January 25, 2016 through March 25, 2016.
• On that same day, Secretary Johnson announced redesignation and extension TPS for nationals from South Sudan. Current TPS beneficiaries from South Sudan have until March 26, 2016 to re-register, and new applicants for TPS from South Sudan must apply by July 26, 2016 and prove they are either South Sudanese nationals or persons without nationality who last habitually resided in South Sudan with continuous residence in the U.S. since January 25, 2016 and continuous physical presence in the U.S. since May 3, 2016.
• Yemen was designated for TPS on September 3, 2015 and the registration period runs through March 1, 2016, so applicants from Yemen have less than a month remaining to apply. 

Also on January 25, 2016, a group of 273 civil rights, labor rights, faith-based, immigrant, human rights, humanitarian, and legal service organizations sent a letter to President Obama and Secretary Johnson requesting DHS designate El Salvador, Guatemala, and Honduras for TPS.  These three countries, known as the Northern Triangle, have experienced a period of escalating violence that has been visible in the U.S. in light of the huge numbers of refugees (particularly minor children) fleeing the Northern Triangle countries.  Iandoli Desai & Cronin P.C. will post news and updates from the White House or DHS regarding this request and any agency action on this page: www.iandoli.com/newsandupdates.

Obama's executive action on immigration headed to the Supreme Court

The U.S. Supreme Court announced on January 19, 2016 it will hear arguments related to Texas v. U.S., the lawsuit challenging President Obama's executive action on immigration.  On November 20, 2014 President Obama announced a number of actions and priorities, including expansion of the Deferred Action for Childhood Arrivals ("DACA") and the creation of a new program called Deferred Action for Parents of Americans and Lawful Permanent Residents ("DAPA") that would allow parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years, provided they have lived in the U.S. continuously since January 1, 2010 and pass required background checks.
 
Seventeen states (with Texas as lead plaintiff) filed a lawsuit against the Obama administration in December 2014 alleging the President's proposed executive actions, including the expansion of DACA and the creation of DAPA, exceed his authority.  The case has moved through the federal district court to the Fifth Circuit Court of Appeals and now is headed to the Supreme Court.  Stay tuned for updates from Iandoli Desai & Cronin P.C. in the coming months on this page: www.iandoli.com/newsandupdates.

OPT STEM Update - Current STEM OPT rules stay in place until May 10, 2016

On Friday, January 23, 2016, the U.S District Court for the District of Columbia ordered the vacatur of the present STEM OPT rules be stayed until May 10, 2016.  This action comes as a relief to international students currently on F-1 OPT STEM extension or who are eligible for such extension, as well as their employers and their schools' international student offices.  Pursuant to this latest order, the current 17-month extension of OPT, available to students who graduated from a U.S. college or university with a STEM degree, will remain in place until at least May 10, 2016 while we await publication of the final rule on STEM OPT from the Department of Homeland Security ("DHS").

To recap, the Washington Alliance of Technology workers sued DHS last year, arguing that DHS had not engaged in proper notice and comment when it promulgated the 2008 regulations that enabled F-1 students to seek an 17-month extension of work authorization pursuant to their period of Optional Practical Training ("OPT")  after completing their studies in the U.S.  In August 2015, the U.S. District Court agreed with the Washington Alliance of Technology workers and ordered the current STEM OPT rules that allowed for a 17 month extension in work authorization be vacated as of February 12, 2016 unless DHS corrected its procedural deficiency.  In October 2015, DHS published the new proposed STEM OPT rule and received over 50,000 comments in response. On December 22, 2015, DHS filed a motion requesting the court permit the existing STEM OPT extension program to continue until May 10, 2016 to enable the agency time to address a majority of the comments received when publishing its final rule.  This most recent order, dated January 23, 2016 and available to view here, allows DHS's motion and thus extends the existing STEM OPT program rules from 2008 through the spring.  

We expect DHS will publish its final rule in the coming months with a number of important changes to the STEM OPT program.  The attorneys of Iandoli, Desai & Cronin P.C. will continue to post updates on this important news at www.iandoli.com/newsandupdates.  You can contact us at info@iandoli.com with your questions about STEM OPT, the proposed regulations, and any other immigration related questions.

DHS publishes new rule affecting H-1B1 and E-3 Nonimmigrants and EB-1 Immigrants

On January 15, 2016, the U.S. Department of Homeland Security (“DHS”) published a new rule that clarified and enhanced opportunities for highly skilled workers from Chile and Singapore who are employed in the U.S. pursuant to the H-1B1 program and for similar workers from Australia in the E-3 category.  Congress created the E-3 and H-1B1 categories after the effective date of many of the existing regulations concerning nonimmigrant work authorization.  As a result, E-3 and H-1B1 nonimmigrants were excluded from some benefits that similarly situated nonimmigrants enjoyed, and for many years there was ambiguity concerning other aspects of their employment authorization in the U.S.  Under this new rule, which goes into effect on February 16, 2016, DHS expressly provides:

• H-1B1 and principal E-3 beneficiaries will be permitted to continue their employment with their current employers for 240 days upon timely filing an extension of stay request. Previously, H-1B1 and E-3 were not among the list of enumerated nonimmigrant categories that permitted the automatic 240 extension upon timely filing; 
• H-1B1 and principal E-3 beneficiaries will be included in the classes of foreign nationals who are authorized for employment in the U.S. incident to status with a specific employer.  This clarifies that H-1B1 and principal E-3 workers are not among the classes of nonimmigrants that must separately apply for employment authorization to begin work with their petitioning employer; and,
• H-1B1 and principal E-3 beneficiaries will be permitted to file for extensions of stay and change of status requests while in the U.S.   Although it has been the case that the Form I-129 instructions permitted H-1B1 and principal E-3 workers to use the form and file for extensions and change of status requests for many years, the existing regulations were not drafted in a way to specifically permit these filings.  

In addition to the changes to the H-1B1 and E-3 categories, DHS’s new rule has also revised the EB-1 regulations for outstanding professors and researchers.  DHS acknowledged the list of evidence that applicants in the EB-1 category may submit to prove their outstanding qualifications was dated and needed to be amended to expressly permit applicants to submit “comparable evidence” to establish their eligibility.  The regulations specifically cite evidence of “important patents or prestigious peer-reviewed funding grants” as two types of comparable evidence applicants may now submit to demonstrate they are recognized internationally as outstanding in their academic areas.

To review a full copy of the new regulations, visit the Federal Register online at https://federalregister.gov/a/2016-00478.  Please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com with any questions you may have about the changes coming next month to the H-1B1, E-3, and EB-1 categories.  

DHS Proposes Expansive Rule Addressing Immigrant & Non-immigrant Employment-Based Categories

In the last Federal Register edition of 2015, the Department of Homeland Security ("DHS") proposed substantial revisions and additions to its rules governing employment-based immigrant and non-immigrant categories. Many of the proposed provisions incorporate and clarify statutory provisions enacted by Congress over a decade ago, while others seek to insulate employers and foreign nationals from recent systemic delays in adjudication at USCIS. 

The extensive proposal promises to "provide various benefits to participants in those programs, including: improved processes for U.S. employers seeking to sponsor and retain immigrant and non-immigrant workers, greater stability and job flexibility for such workers, and increased transparency and consistency in the application of agency policy related to affected classifications."  Several of the specific changes sought in the proposed regulations include:

• Enabling certain high-skilled, non-immigrant workers with approved I-140 petitions to apply for separate employment authorization for a limited period if there are compelling circumstances for doing so.  In the proposed regulations DHS does not define "compelling circumstances" but does cite four examples, including significant disruption to the employer, serious illness and disabilities, employer retaliation, or other substantial harm to the applicant;
• Implementing a one-time 60 day grace period for E-1, E-2, E-3, H-1B, L-1 and TN non-immigrants upon cessation of employment (whether the employment ends voluntarily or the foreign national has been laid off or terminated);
• Automatically extending the validity of certain Employment Authorization Documents ("EADs") for up to 180 days upon timely filing applications to renew the existing EADs; and,
• Eliminating the 90 day processing timeframe for EADs and the requirement for the issuance of interim EADs.

Iandoli Desai & Cronin P.C. will keep you informed of any updates and resulting final rules from these proposed regulations in 2016. To view the proposed revisions and submit public comments by February 29, 2016, visit https://federalregister.gov/a/2015-32666.

DHS requests Court to extend STEM OPT program until May 10, 2016

In August 2015, a U.S. District Court found DHS had failed to provide notice and invite public comment when it promulgated the 2008 STEM OPT extension rule, which to date has enabled thousands of F-1 students with degrees in the STEM fields to receive a 17 month extension to their existing one year of work authorization in the U.S. following graduation. As part of this recent District Court ruling, the judge ordered that the 17 month STEM OPT extension program be vacated as of February 12, 2016 unless DHS corrects its procedural deficiency. In October 2015, DHS published the new proposed STEM OPT rule and has since received an astounding 50,500 comments. On December 22, 2015, DHS filed a motion requesting the court permit the existing STEM OPT extension program to continue until May 10, 2016 to enable the agency time to address a majority of the comments received when publishing its final rule. DHS's request would allow an additional 30 days to complete the rulemaking and 60 days to train agency personnel on the new STEM OPT requirements, as well as prepare training aids and material for foreign students, U.S. schools and U.S. employers. 

Iandoli Desai & Cronin P.C. will keep you informed of all updates related to the STEM OPT litigation on our website at www.iandoli.com/newsandupdates.

Major Changes to the Visa Waiver Program

In response to recent terror attacks in Paris, Congress made significant changes to the Visa Waiver Program ("visa waiver") as part of the Consolidated Appropriations Act, 2016 (H.R. 158) on December 18, 2015. Visa waiver allows citizens of certain countries to enter the U.S. as a tourist without a visa for up to 90 days. Such travelers must have authorization under the Electronic System for Travel Authorization ("ESTA") prior to boarding a U.S. bound air or sea carrier as well as meet a few other criteria (i.e., possess a machine-readable passport).

The changes to visa waiver, which took effect immediately, include barring previously eligible persons from using visa waiver if during the past five years they have traveled to Iran, Iraq, Syria, and Sudan, or if they are dual nationals of those countries.  Foreign nationals affected by this change will be required to apply for a tourist visa at a local U.S. Consulate or Embassy abroad. Other changes to the Visa Waiver Program include revised conditions for participating countries such as passport security requirements, screening protocols, and information sharing. Congress has also included revocation provisions for participating countries failing to meet the new requirements.

If you have questions about the changes to the Visa Waiver Program, please contact the attorneys at Iandoli Desai & Cronin P.C. at info@iandoli.com.

H-1B Cap Season is upon us!

Employers should begin making plans for the upcoming Fiscal Year 2017 H-1B visa filing deadlines.  Given the annual high demand for H-1B visas, USCIS is likely to accept H-1B petitions subject to the annual cap only during the first five business days in April: Friday, April 1, 2016 through Thursday, April 7, 2016. We urge employers to contact us as early as possible in 2016 to review the requirements of the H-1B program, discuss the timing for drafting the FY2017 H-1B petitions, and to strategize about other options for employment-based visas for recent graduates and professionals. 

Please contact us at info@iandoli.com or call us at 617-482-1010 with questions about H-1B visas and the application process.