Not selected in the H-1B lottery? Other work visa options 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 (are 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 an entity abroad related as a parent, branch, subsidiary, or affiliate of a U.S. entity;
• 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.

DOS releases June 2017 Visa Bulletin - EB-1 retrogression for China & India

As of June 1, 2017, foreign nationals from India and China filing in the EB-1 category may be temporarily unable to submit their I-485 Adjustment of Status applications concurrently with their I-140 employment-based immigrant visa applications. The EB-1 category is an employment-based category for priority workers that includes: 

• Aliens of Extraordinary Ability;
• Outstanding Professors and Researchers; and,
• Multinational Managers and Executives. 

According to the U.S. Department of State's ("DOS") June 2017 Visa Bulletin, the Final Action Chart shows the priority date for Indian and Chinese nationals has retrogressed to January 1, 2012. However, the Dates of Filing Chart lists those two countries (as well as all others in the EB-1 category) as "current." As of May 10, 2017, USCIS has not indicated which chart it will use for determining eligibility for filing adjustment of status applications. Based on past practice, USCIS will likely use the Final Action Chart. This means that as of June 1, 2017, Indian and Chinese nationals with priority dates earlier than January 1, 2012 will be eligible to submit their green card applications, and those with later priority dates will have to wait until immigrant visas become available in the coming months.  It may not be until October (when the U.S. government's new fiscal year begins) that the EB-1 category becomes current again for India and China.

Charles Oppenheimer, Chief of the Visa Control and Reporting Division with DOS, had previously stated EB-1 and EB-2 Worldwide demand at USCIS had increased dramatically, and had predicted a final action cut-off date would be imposed for EB-1 China and India no later than July. The EB-1 category remained current for nationals of all countries except India and China. If you have questions about the visa bulletin or eligibility for filing for adjustment of status, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.   

DOL launches new features related to PERM audits and email notifications

In order to reduce burdens on employers and streamline the PERM system, the Department of Labor ("DOL") has recently made several announcements relating to PERM email notifications and a new portal for submission of documents for PERM audits. PERM is the first step towards obtaining a green card for many foreign nationals who seek to live and work in the U.S. on a permanent basis. In November 2016, DOL announced that effective December 1, 2016 the Atlanta National Processing Center would begin issuing PERM notification letters via email to employers and attorneys in an effort to provide these case updates in a timely, cost effective manner without delays that can occur when they are sent via regular mail.  Stakeholders now receive the following letters/notifications via e-mail:

• Audit Notification Letters;
• Denial Notification Letters;
• Requests for Information Letters;
• Additional Audit Information Requests;
• Withdrawal Letters; and,
• Notices of Decisions from Appeals.

Please note that Certified ETA Form 9089 PERM application letters continue to be sent via regular mail due to the certification's security paper requirements in place with USCIS.

More recently, DOL announced that its Office of Foreign Labor Certification ("OFLC") allows submission of electronic documentation on the PERM Case Management System portal while a labor certification application is pending review and up to 30 calendar days after the notice of proposed final action is issued.  This new feature, effective April 15, 2017, will eliminate the need for employers or their attorneys to submit a response via mail, email or facsimile. For more information on the new feature, DOL recommends reading their PERM Quick Guide as it provides detailed information on the use of the system.

Update on the President's immigration-related Executive Orders

On April 18, 2017 President Trump signed his latest Executive Order "Buy American and Hire American." While this recent order sent shockwaves through the business immigration community, the order itself will not have an immediate impact.  The administration made clear their desire to reform the H-1B program but the Executive Order notes it will focus on reviewing current policies in order to identify "fraud and abuse" and then at a later date propose actual regulatory reforms so that H-1B visas are awarded to the most skilled or highest-paid applicants. 

In his previous Executive Order titled, "Enhancing Public Safety in the Interior of the United States," signed on January 25, 2017, the President threatened that "sanctuary jurisdictions", including "sanctuary cities" who refuse to comply with immigration enforcement measures, will not be eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the U.S. Attorney General or Secretary of Homeland Security. But on April 25, 2017 Trump's administration was handed yet another legal blow to their issuance arguably unconstitutional executive orders when the U.S. District Court for the Northern District of California issued a nationwide injunction against §9(a) of the order, halting enforcement.  In his Order, Judge William H. Orrick determined that the localities were likely to succeed on the merits of their challenge that the proposed Executive Order violated the U.S. Constitution - largely based on the order violating the Tenth Amendment which expresses the principle of federalism and states' rights: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."  It remains to be seen if President Trump will revise and reissue his order similar to his Muslim & Refugee Ban or fight this one out in court. 

We will post any news on these Executive Orders and the ensuing litigation on our website at http://www.iandoli.com/newsandupdates.

USCIS Memo to DHS recommending termination of Haiti's TPS Designation

USCIS issued a memorandum to the Department of Homeland Security ("DHS") on April 24, 2017 recommending DHS terminate the designation for Temporary Protected Status ("TPS") for Haiti, as the agency concluded that the conditions in Haiti no longer support its designation. USCIS recommended that the effective termination date be set for January 22, 2018. The memo states "[USCIS] has concluded that the specific extraordinary and temporary conditions stemming from the 2010 earthquake which caused Haiti to be initially designated for TPS and to be redesignated in 2011 have been largely ameliorated. Those myriad problems remaining in Haiti are longstanding problems which have existed for many years before the 2010 disaster. Haitian nationals may safely return to Haiti ..."  

USCIS's memo included its recommendations to DHS on how to treat Haitian nationals in the U.S. on TPS: "If you determine that Haiti no longer continues to meet the statutory requirements for its TPS designation, you must terminate TPS for Haiti. Termination would end TPS benefits for existing Haitian TPS beneficiaries unless you provide for these benefits during a period for orderly transition. Upon the termination of TPS benefits, former beneficiaries without another immigration status or authorization to remain would no longer have permission to work and remain in the United States."

This recommendation from USCIS received a quick response from sixteen Democratic Senators, including Senator Elizabeth Warren of Massachusetts and Senate Minority Leader Charles Schumer of New York, urging DHS Secretary John F. Kelly and U.S. Secretary of State Rex Tillerson to extend the benefit despite USCIS's recommendation. DHS has not commented on USCIS's recommendation. Since the release of that memo, the Associated Press is reporting the Trump administration has begun hunting for evidence of crimes committed by Haitian immigrants as it decides whether to continue the TPS designation. In its report, the AP stated, "The request for criminal data for an entire ethnic community is unorthodox...Introducing new criteria is likely to cause consternation among law-abiding Haitians who may feel they are being penalized for the wrongdoing of others." We will continue to closely monitor the situation in the coming weeks and provide updates on our website.

USCIS will issue redesigned green cards & EADs

On USCIS recently announced a redesign for lawful permanent resident cards (commonly referred to as "green cards") and employment authorization documents ("EADs") as part of the Next Generation Secure Identification Document project. USCIS began issuing the cards on May 1, 2017 but will continue using existing card stock until depleted. Both existing and new cards are valid until the expiration date noted on the cards. Please visit the USCIS website's announcement for more information and to see images of the newly redesigned cards.

USCIS now accepting H-1B petitions for FY2018

On April 3, 2017, U.S. Citizenship and Immigration Services ("USCIS") began accepting H-1B petitions for Fiscal Year 2018 ("FY2018"). 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 3rd - April 7th). The cap consists of 65,000 H-1B visas available for beneficiaries with at least a 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 236,000 H-1B petitions in the first five business days of April. 

For updates on when USCIS reaches the cap, the lottery, whether there will be a re-start date for premium processing (discussed in further detail below), and other H-1B related news, visit USCIS's H-1B FY2018 site and look for breaking news on our website's news and updates section.

Alternatives to H-1B visa

In light of the increase in demand for H-1B visas over the past several years, employers and foreign nationals should also be aware of other work visa options. A few possibilities that are not subject to annual quotas include:

• 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 (are subject to a quotabut 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. 

In addition, employers and foreign nationals may want to consider cap-exempt H-1B visas, which are available if the beneficiary will be employed at an institution of higher education or affiliated non-profit, or concurrently employed by a cap-exempt employer and a private employer. Some universities are assisting in this process by opening up incubator space on-campus, allowing cap-subject employers to station their employees at colleges and universities. This model is known as Global Entrepreneur In Residence ("GEIR") programs, and has become very valuable in the past several years due to the limited number of H-1B visas and the high demand for them. For more information about any of these visa categories or GEIR options, please contact us at info@iandoli.com.   

Reminder: USCIS has temporarily suspended Premium Processing for all H-1B petitions

As noted in one of our previous updates, USCIS announced that it will temporarily suspend premium processing for all H-1B petitions effective April 3, 2017. Premium Processing is an optional service for certain nonimmigrant and immigrant visa petitions that guarantees initial adjudication of a petition within 15 calendar days for an additional fee of $1,225. As regular processing times for H-1B petitions have increased significantly over the past 18 months -- from 2-4 months to upwards of 9-12 months -- many petitioners have used Premium Processing to facilitate quicker start dates for H-1B employees and for obtaining approval notices they may need for international travel. USCIS has not announced a firm end date for the premium processing suspension but did indicate it could last for up to 6 months. This suspension has a major impact not only on the annual H-1B cap-subject lottery but also for hiring plans for cap-exempt institutions like universities and teaching hospitals, many of which have summer/fall start dates for foreign national employees.

As a reminder, USCIS accepts expedite requests on a case-by-case basis if a foreign national or an employer can demonstrate that one or more of the expedite criteria has been met. USCIS lists the following as criteria they will consider for reviewing expedite requests: severe financial loss to company or person; emergency situation; humanitarian reasons; nonprofit organization whose request is in furtherance of the cultural and social interests of the United States; Department of Defense or national interest situation (note these requests must come from an official U.S. government entity and state the delay will be detrimental to the government); USCIS error; or compelling interest of USCIS. If you have a question about the premium processing suspension or need assistance with assessing an expedite request, please contact the attorneys at Iandoli Desai & Cronin at info@iandoli.com.

Temporary Restraining Orders and a Preliminary Injunction issued, halting Executive Order on Travel Ban

Several U.S. District courts issued temporary restraining orders related to the revised Travel Ban last month. Further, the U.S. District Court of the District of Hawaii in its Order found there was "unrebutted evidence of religious animus" and a "dearth of information indicating a national security purpose", and concluded that the plaintiffs were likely to succeed on the merits of their claim that the travel ban violated the Establishment Clause of the U.S. Constitution. The Court further held that no "constitutionally significant" changes were made to this rewritten order and that it therefore suffered from all the same failings of the first executive order (withdrawn by the government and replaced by the rewritten order). Many of these same findings were reiterated when the District Court issued its Preliminary Injunction on March 29, 2017. In response to the government's arguments that only the four-corners of the Executive Order should be reviewed and statements made by the President during the campaign and while in office leading up to the ban should be ignored, the Judge's Order states: "The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has."  The U.S. District Court's Preliminary Injunction is binding on all federal agencies, including the Department of Homeland Security and the Department of State. The Executive Branch indicated it will again appeal to the Ninth Circuit Court of Appeals. We will bring you further updates as the travel ban litigation progresses.