USCIS announces H-1B cap reached for 4th year in a row during the first week of April

U.S. Citizenship and Immigration Services ("USCIS") announced on April 7, 2016 that it had reached the congressionally mandated H-1B cap for fiscal year 2017 ("FY2017").  A few days later, USCIS disclosed the total number of H-1B petitions the agency received for FY2017: 236,000.  As a result, USCIS employed a lottery system to select the 65,000 H-1B visas in the general category cap and the additional 20,000 H-1B visas available to applicants with a U.S. master's degree or other advanced degree obtained in the U.S. 

The number of applications submitted by employers seeking to hire professionals under the H-1B program has increased since 2013 and the lottery process has become commonplace. USCIS confirmed it received 124,000 applicants in FY2014, 172,500 in FY2015, 233,000 in FY2016, and now 236,000 in FY2017. 

For petitions filed via premium processing that were selected in the lottery, USCIS announced it will begin the guaranteed 15-day processing time for those petitions on May 12, 2016. On May 2, 2016, USCIS confirmed it had completed data entry for all FY2017 H-1B cap-subject petitions selected in the lottery. The agency will now begin the process of returning filing fee checks and the petitions not selected in the lottery, typically mailing those packages back to employers beginning in late May or early June. 

Not selected in the H-1B lottery? Other work visas for professionals to consider

Employers and foreign nationals disappointed in this year's H-1B lottery results may want to consider other work visa options.  A few possibilities that are not subject to annual quotas include:

• Cap-exempt H-1B visas - available where the beneficiary will be employed at an institution of higher education (even in some cases with a private company who maintains space on a college or university campus), a related or affiliated nonprofit entity, a nonprofit research organization, or a government research organization, or concurrently employed by both a cap-exempt employer and a private, otherwise cap-subject employer;
• TN visas - available to nationals of Canada and Mexico;
• E-3 visas - available to nationals of Australia;
• H-1B1 visas - available for nationals of Chile and Singapore (subject to a quota but that quota is rarely met);
• E visas - E-1 treaty trader and E-2 treaty investor visas are available for nationals of a number of countries (full list here);
• F-1 student visas - F-1 students with a degree in a STEM field may be eligible under the new STEM OPT rules that permit work authorization for up to 3 years following graduation;
• J-1 visas - available for interns or trainees in a variety of work categories if sponsored by a qualified J-1 entity, including umbrella sponsorship agencies;
• L-1 visas - available to managers, executives or those with specialized knowledge who have worked abroad for at least 1 year within the past 3 years for a company abroad related as a parent, branch, subsidiary, or affiliate of a U.S. company;
• O-1 visas - available for persons of extraordinary ability in the sciences, arts, education, business or athletics.

Please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com to discuss these and other options for your professional employees.

Department of State announces new policy of visa revocation for DUI arrests

In a recent Q&A session, the Department of State's Visa Office discussed its new policy requiring consular officers to prudentially revoke nonimmigrant visas for driving under the influence ("DUI") arrests subsequent to visa issuance. The arrest alone is sufficient for DOS to prudentially revoke a visa based on suspected ineligibility - a conviction or admission is not required.  Although consular officers generally may revoke a visa only if the alien is ineligible under INA 212(a) (including for conviction of certain crimes, controlled substance violations, etc.) or is no longer entitled to the visa classification, the Department of State ("DOS") may revoke a visa if an ineligibility or lack of entitlement is suspected, or for virtually any other reason. This is known as a prudential revocation.  

Effective November 5, 2015, DOS implemented the requirement for consular officers to prudentially revoke nonimmigrant visas after a DUI arrest because the agency considers such an arrest as indicative of a possible ineligibility under the Immigration and Nationality Act ("INA"): ineligibility for a visa due to a possible physical or mental disorder associated with harmful behavior. Previously, a nonimmigrant's DUI arrest subsequent to being issued a visa did not pose an issue for a foreign national until the next time she or he sought to apply for a visa and would have to disclose the arrest on the visa application. 

DOS and its affiliated visa offices receive information on arrests and convictions through a number of U.S. government agencies' electronic databases, some of which do not include final dispositions of criminal charges after arrest. Following a DUI arrest, a foreign national in the U.S. on a nonimmigrant visa may receive a notice from a consulate stating his/her visa has been revoked due to derogatory information received by DOS and that the visa is not valid for future travel to the U.S. Although affected visa holders are not required to immediately depart the U.S., they are required to present the visa at the consulate for physical cancellation upon returning abroad. Revocation does not preclude a foreign national from reapplying for a new visa, but the DUI arrest would have to be disclosed on any future visa application.

This is a major change in policy and has the potential to affect a significant number of visa holders currently living and working in the U.S. who have been arrested for a DUI within the past five years and who have not yet had opportunity to disclose that information on a visa application. For more information on DOS's new policy and to view the updated Foreign Affairs Manual ("FAM") that includes the DUI arrest provision visit the FAM online.

USCIS adopts recent AAO decision about L-1A functional managers

On April 14, 2016, USCIS issued a Policy Memorandum officially adopting Matter of Z-A-, Inc. and establishing policy guidance that applies to and binds all USCIS employees adjudicating L-1A petitions for managers. In its holding in Matter of Z-A-, Inc., the Administration Appeals Office ("AAO") confirmed USCIS officers must weigh all relevant factors in determining whether the beneficiary of an L-1A will manage an essential function, including evidence of the beneficiary's role within the wider qualifying international organization. 

In the instant case, USCIS had initially denied the employer's L-1A functional manager petition on behalf of one of its company Vice Presidents. In its denial, USCIS stated the Petitioner did not establish it had an organizational structure sufficient to support the Beneficiary in a qualifying managerial capacity in light of there only being two U.S. payroll employees in sales and administrative positions. USCIS suggested that because of this small organizational structure, the Petitioner had not adequately demonstrated how Beneficiary would be working in a managerial capacity rather than as a sales person or administrator. The AAO disagreed and found USCIS failed to take into account the fact that the Beneficiary, in addition to supervising the two U.S. payroll employees, also oversaw the duties performed by eight foreign staff located in Japan whose roles support the U.S. enterprise.

In making future determinations concerning managing an essential function of an organization, USCIS must now consider evidence presented by the Petitioner of personnel employed by another related entity within the qualifying organization who perform day-to-day non-managerial tasks of the petitioning entity.  To read the new Policy Memo and AAO decision in the Matter of Z-A-, Inc., visit USCIS's policy memorandum site.  

E-Verify is going mobile

On April 27, 2016, the Department of Homeland Security ("DHS") announced testing for the new E-Verify Mobile App, encouraging up to 2,000 E-Verify users to test the App on their iPads and report performance time through the Apple TestFlight feedback tool. 

E-Verify is a free, internet-based system offered by DHS to allow employers to determine the eligibility of their employees to work in the U.S. Since 1986 U.S. law has required employers to verify worker eligibility and to maintain records through the use of form I-9. E-Verify was officially introduced in 2007 after a pilot program that allowed employers to electronically verify worker eligibility in the U.S.  The program has grown to over 602,000 participating employers verifying over 13 million employees each year.

While E-Verify is an optional program, it is a required program for certain federal contractors and for any employer who seeks to employ F-1 students during their additional two years of work authorization in the U.S. following graduation as part of the STEM OPT program. The E-Verify Mobile App is the next step DHS hopes will attract more users to its program. If your company uses E-Verify and you have an Apple iPad (2nd and 3rd generation only) and want to participate in the test program, email the E-Verify program at MobileE-Verify@uscis.dhs.gov by May 4, 2016.

Immigration relief available for those affected by severe earthquakes

In the wake of several major earthquakes in Ecuador, Japan and Burma, USCIS announced a variety of immigration relief measures available to people affected by these natural disasters. In its April 26, 2016 press release, USCIS described the measures available upon request including a change or extension of nonimmigrant status (even if the request is filed after an authorized period of admission has expired), expedited processing of advance parole or employment authorization documents, consideration of fee waivers due to inability to pay, and replacement of a lost or damaged Legal Permanent Resident Card ("green card") or other immigration or travel documents issued by USCIS. 

Foreign nationals seeking relief under these measures must file the appropriate forms with USCIS and include information with their requests about how the natural disaster created the need for the requested relief.  For more details, please visit USCIS's website section for Humanitarian Relief and Special Situations.

USCIS begins accepting H-1B petitions for FY2017

On April 1, 2016, USCIS began accepting H-1B petitions for FY2017. In keeping with the trend of the last several years, USCIS confirmed it expects to receive more than the congressionally mandated cap of 85,000 petitions from employers within the first five business days of April (this year, April 1st - April 7th). The cap consists of 65,000 H-1B visas available for beneficiaries with at least bachelor's degree or equivalent and an additional 20,000 H-1B visas for beneficiaries with a U.S. master's degree or higher. After April 7th, the agency will use a computer-generated lottery system to randomly select the 85,000 petitions for adjudication. Last year USCIS received over 233,000 H-1B petitions in the first five business days of April. For updates on when USCIS reaches the cap, the lottery, start date for premium processing, and other H-1B related news, visit USCIS's H-1B FY2017 site and look for breaking news on our website's news and updates section.

DHS announced major changes for employers and F-1 students on STEM OPT

On March 11, 2016, the Department of Homeland Security ("DHS") published its new rule on STEM OPT. Previously, F-1 students who came to the U.S. and graduated with a degree in a STEM field were eligible for a 17 month extension to the existing one year of work authorization for their period of Optional Practical Training ("OPT"). As a result of litigation over the 2008 rule that authorized STEM OPT, DHS published a new rule that includes significant changes for employers, F-1 students, and Designated School Officials ("DSOs") at U.S. colleges and universities. The new regulations include a 24 month extension to OPT, a new requirement for a training plan signed by employers, a requirement employers report wages offered to F-1 students on STEM OPT, and provisions for the transition period between now and the rule taking effect on May 10, 2016 for students currently on STEM OPT. To read a detailed summary of the new rules, visit our firm's website and click the News and Updates tab.

USCIS adopts recent AAO decision affirming National Interest Waiver category includes medical specialists in addition to primary care physicians

In February the Administrative Appeals Office ("AAO") decided an important case for physicians applying for immigrant visas in the National Interest Waiver category, and on March 9, 2016 USCIS issued a Policy Memorandum officially adopting the AAO's decision as agency policy. In its decision in Matter of H-V-P, the AAO held that medical specialists who agree to practice in any area designated by the Secretary of Health and Human Services as having a shortage of health care professionals or in a VA facility may be eligible for the physician National Interest Waiver category of green cards. This expansion to include medical specialists is a major victory for American communities suffering from a shortage of qualified physicians and foreign-born medical specialists who with to remain in the U.S. If you have questions about whether physicians working for your organization may qualify for a green card in the National Interest Waiver category, please contact one of the attorneys at Iandoli Desai and Cronin at info@iandoli.com or by calling us at 617-482-1010.

USCIS transfers cases in an effort to address processing delays

Responding to the need to develop more streamlined processing of various applications and petitions and decrease processing times, USCIS announced a series of case transfers in March. As of March 28, 2016, the Potomac Service Center will process all I-765 Applications for Employment Authorization filed by F-1 and M-1 students seeking Optional Practical Training. All such applications will be marked with the prefix "YSC" to note that the application is at the Potomac Service Center.

The Vermont Service Center ("VSC") has begun to transfer some H-1B and H-4 cases to the Nebraska Service Center ("NSC"). Specifically, the VSC will transfer certain Form I-129 Petitions for Nonimmigrant Workers for petitioners requesting H-1B classification, Form I-539 Applications to Extend/Change status for H-4 classification, and Form I-765, Applications for Employment Authorization for H-4 eligible dependents. Petitioners should refer to the form instructions and the filing addresses listed on the USCIS website and, when applicable, continue to file petitions with the VSC. The VSC will then decide which cases to transfer to the NSC.  In cases where an I-129 is transferred to the NSC, any Form I-907 upgrade for premium processing should be sent to the NSC.

Similarly, USCIS may transfer certain L-1 and L-2 cases from the VSC to the California Service Center ("CSC"). The processes affected for L-1 and L-2 beneficiaries will include certain I-129, I-539 and I-765 applications. Petitioners should still refer to the form instructions and the filing addresses listed on the USCIS website and, when applicable, continue to file petitions with the VSC. In cases where an I-129 is transferred to the CSC, any form I-907 upgrade for premium processing should be sent to the CSC. For more details and to review the official press releases, please visit USCIS's website's News and Alerts section and click the links for the alerts from March 29, 2016.