Nebraska Service Center now accepting some H-1B extension requests

Effective July 1, 2016, the Nebraska Service Center ("NSC") has begun accepting certain types of H-1B and H-1B1 (Chile / Singapore Free Trade) petitions. Employers may file H-1B and H-1B1 petitions with the NSC where they are requesting a "continuation of previously approved employment without change of the same employer" (per Part 2, Question 2, Box b. on Form I-129) and if the employer is requesting an extension of the beneficiary's current H-1B or H-1B1 status or notification of a consular office or port of entry (per Part 2, Question 4, boxes a., c., or e.). The NSC will also accept any concurrently filed H-4 Form I-539 Applications to Exchange/Change Nonimmigrant Status and any I-765 Application for Employment Authorization for eligible H-4 spouses.

The alert from USCIS, issued on June 1, 2016, indicates the California Service Center ("CSC") and the Vermont Service Center ("VSC") may continue to accept H-1B and H-1B1 petitions during this transition period, which ends August 31, 2016. Cap-exempt employers should continue to file their H-1B petitions with the CSC, and petitioners requesting premium processing should continue to file their H-1B petitions with either the CSC or the VSC according to the Form I-129 Direct Filing Addresses page until further notice.

Comment period closes for proposed USCIS fee increases

On May 4, 2016, the Department of Homeland Security ("DHS") published a proposed rule to increase USCIS filing fees an average of 21% across all application types and to add a few new fees to its existing fee schedule. USCIS indicated it was seeking fee increases for the first time in 5 years in order to cover its current costs for processing a variety of applications. A full copy of the notice and proposed fee changes can be found on the Federal Register website, and a summary of a few of the proposed fee changes can be found on our website. The notice and comment period, originally set to close on July 5, 2016, was extended to July 6, 2016, with DHS having received at least 340 public comments.

Changes to E-Verify accounts

Effective August 1, 2016, the Department of Homeland Security ("DHS") announced that users of its E-Verify program who have not accessed E-Verify for 270 days or more will begin to see their user IDs deactivated. To avoid deactivation, employers who use E-Verify will want to ensure they log into their E-Verify account regularly - and at a minimum employers should set reminders to log in at least once every 9 months.

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 for most employers, 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.

U.S. v Texas

On June 23, 2016 the U.S. Supreme Court issued its opinion in the closely-watched case of U.S. v. Texas. The Court's opinion totaled only nine words: "The judgment is affirmed by an equally divided court." The court's 4-4 ruling demonstrates the significance of the death of Justice Antonin Scalia and the Senate's inaction on confirming Merrick Garland, President Obama's nomination to Supreme Court.

U.S. v. Texas was the culmination of an injunction granted to the State of Texas (joined by seventeen other states in their lawsuit) over President Obama's proposed Executive Actions on Immigration, originally announced in November 2014. The President's Actions included the expansion of the existing program for Deferred Action on Childhood Arrivals ("DACA") and the addition of a new program for Deferred Action for Parents of Americans ("DAPA"). These programs sought to assist individuals brought to the U.S. as children who are without status in the U.S. and the parents of U.S. citizens and permanent residents who are without status. Under both programs, the eligible individuals would be permitted to remain in the U.S. and work without fear of deportation.

On February 16, 2015, a federal judge in Texas issued an injunction to prevent implementation of these two programs (expanded DACA and DAPA), a decision the Obama administration appealed. On November 9, 2015, in a 2 - 1 decision, the 5th Circuit Court of Appeals in New Orleans affirmed the District Court's decision, halting President Obama's expanded DACA and DAPA programs. The Obama administration appealed and in April 2016 argued its case before the U.S. Supreme Court. With its divided decision last month, the Supreme Court's decision leaves the 5th Circuit Court of Appeals' decision in place, effectively blocking the President's Executive Actions for now. U.S. v. Texas, like other equally divided Supreme Court decisions, does not set precedent and thus is not a binding decision on any future cases concerning Executive Authority or immigration.  A full copy of the Supreme Court's opinion, along with briefs filed with the Court, can be found on the court's website.

Determining whether a bona-fide employer-employee relationship exists under the new STEM OPT regulations

The Department of Homeland Security's new 24 month STEM OPT rule went into effect on May 10, 2016. Employers and F-1 students should be aware of the major changes to the STEM OPT program.  In particular, some employers may no longer be able to hire F-1 STEM OPT students. In response to public comments concerning whether self-employed students, temporary staffing agencies, and start-up companies (formed and staffed by the F-1 student) would qualify as "employers" under the new regulations, DHS stated: 

Response. There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through "temp" agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship. One concern arises from the difficulty individuals employed through such arrangements would face in complying with, among other things, the training plan requirements of this rule. Another concern is the potential for visa fraud arising from such arrangements. Furthermore, evaluating the merits of such arrangements would be difficult and create additional burdens for DSOs. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience. DHS recognizes that this outcome is a departure from SEVP's April 23, 2010 Policy Guidance (1004-03). (emphasis added)

A full copy of the new OPT STEM regulations is available on the Federal Register's website. If you have questions regarding whether your employer-employee relationship will qualify for the new 24-month STEM OPT extension, please contact an attorney at Iandoli Desai & Cronin P.C. at info@iandoli.com.

USCIS now accepting inquiries for extension of stay / change of employer petitions pending for more than 210 days

As many of our clients have noticed, a number of Form I-129 petitions requesting an extension of status or change of employer have been pending with USCIS for over 8 months (240 days). The majority of the Form I-129 petitions experiencing these delays affect H-1B employees. As a result of this backlog, employers and foreign nationals have needed to upgrade a large number of petitions to premium processing, at a cost of $1,225 per petition, in order to permit foreign nationals to travel abroad or receive their approval notice in a timely fashion. While USCIS has not provided an official explanation for these unprecedented delays, last month the agency publicized efforts to address the situation. On April 21, 2016, USCIS announced they were implementing a new system to permit employers or their attorneys of record to inquire about the status of certain Form I-129 petitions that have been pending for more than 210 days. 
 
Employers and attorneys can either submit a request online at  https://egov.uscis.gov/e-Request/Intro.do (select the option "case is outside normal processing time") or by calling the National Customer Service Center at 1-800-375-5283 (TDD for deaf and hard of hearing: 1-800-767-1833).  To check on a case status, one must be ready to provide the receipt number, filing date, and the foreign national employee's date of birth.   

USCIS proposes significant fee increases for nearly all applications & petitions

On May 4, 2016, USCIS published a proposed rule to increase filing fees an average of 21% across all application-types and add a few new fees to its existing fee schedule. The agency noted the current fees, set in 2010, are not sufficient to cover the full costs of the services USCIS provides. In hopes of providing better service, reducing wait times and increasing enforcement efforts, USCIS announced its proposed fee increases, which include the following changes for common applications:

• Form I-129 (H-1B, L-1, O-1, TN, E) would increase from $325 to $460 (42%)
• Form I-140 Immigrant Petition for Alien Worker would increase from $580 to $700 (21%)
• Form I-485 Application to Adjust Status for adults would increase from $1,070 to $1,225 (16%)
• Form I-130 Petition for Alien Relative would increase from $420 to $535 (27%)
• Form N-400 Application for Naturalization would increase from $680 to $725 (8%)

The proposed rule in its entirety can be viewed on the Federal Register website. Comments are due by July 5, 2016 and can be submitted via the Federal eRulemaking Portal at http://www.regulations.gov.  All submissions should include the DHS Docket No. USCIS-2016-0001. 

New requirement for Lawful Permanent Residents traveling to Canada

Effective March 15, 2016, the Canadian Border Service Agency ("CBSA") is now requiring all U.S. lawful permanent residents ("LPRs") who are visa exempt for Canada to sign-up for Electronic Travel Authorization ("eTA") prior to any travel to or through Canada by plane. LPRs travelling via land or sea, U.S. citizens, and foreign nationals with a valid Canadian visa are not subject to this new requirement. CBSA is allowing LPRs travelling by plane between March 15, 2016 and September 29, 2016 without eTA to board flights as long as they have appropriate travel documents, such as a valid passport, and meet all requirements to enter Canada.  After that LPRs must sign up for eTA prior to any travel.
 
To apply for eTA please visit: http://www.cic.gc.ca/english/visit/eta.asp. According to CBSA, the application process costs $7 CAD and most are approved within minutes of applying.

First-time tourist visa appointments suspended & other significant delays at the U.S. Embassy in Caracas, Venezuela

For the past several months, the Venezuelan Foreign Ministry has refused to issue visas for U.S. Embassy personnel, resulting in a severe staff shortage at the U.S. Embassy in Caracas. On May 18, 2016, the U.S. Department of State ("DOS") announced that due to limited staff, the U.S. Embassy in Caracas is forced to cease making appointments for certain visas and significantly limit the processing of others.

Until further notice, the Embassy in Caracas is no longer scheduling appointments for first-time business or tourist (B-1/B-2) visa applicants. For those who already paid the visa application fee prior to May 18, 2016, the Consulate will honor those paid fees for up to one year but will only be scheduling a limited number of appointments each day. Applicants should be prepared for the application process to take longer than expected. In addition, applicants applying for renewal of their U.S. visa or first-time applicants for any of the petition-based, student, or investor visas, a limited number of appointments for those visa types will be made available but wait times may be significant.

For immigrant-based visa applications, the Embassy has confirmed it will continue to schedule appointments as usual once the National Visa Center ("NVC") has notified them that cases are ready for an interview. For more information please visit:  http://caracas.usembassy.gov/news¬events/embassy¬news/new¬information¬niv¬visa-venezuela.html.  

USCIS announces TPS extended for Nicaragua and Honduras

USCIS recently announced Temporary Protected Status ("TPS") for Nicaragua will be extended for an additional 18 months, effective July 6, 2016, through January 5, 2018. Current beneficiaries who wish to extend their TPS must re-register during the 60-day period that is open now through July 15, 2016. USCIS will automatically extend current TPS Nicaragua employment authorization documents (EADs) with a July 5, 2016 expiration date for six months. For more information please visit: https://www.uscis.gov/news/news-releases/temporary-protected-status-extended-nicaragua.
 
In addition, USCIS announced TPS for Honduras will also be extended for an additional 18 months, effective July 6, 2016, through January 5, 2018. Current beneficiaries from Honduras seeking to extend their TPS must re-register during the 60-day period that is open now through July 15, 2016. USCIS will automatically extend current TPS Honduras employment authorization documents (EADs) with a July 5, 2016 expiration date for six months. For additional details, please visit: https://www.uscis.gov/news/news-releases/temporary-protected-status-extended-honduras.