CONNECT

SUBSCRIBE

Your email:

Posts by category

Vimeo blogarama - the blog directory Follow law_immigration on Twitter

Immigration Solutions

Current Articles | RSS Feed RSS Feed

Immigration Reform: What it means for Highly Skilled Foreign Workers

 

immigration reform, executive actionAs part of President Obama’s executive action, he has ordered new policies and regulations to be implemented which will benefit highly-skilled foreign workers by enabling businesses to more easily hire and retain these workers and allow them to make natural career progressions with their employers or seek similar opportunities within the United States thereby creating increased career stability for those foreign workers waiting for green cards. 

The November 20, 2014 memorandum from DHS Secretary Jeh Charles Johnson to USCIS Director Leon Rodriguez (the Memorandum) outlines these new policies and regulations and includes the following: Modernizing the Employment-Based Immigrant Visa System and increasing Worker Portability. 

One of the biggest gripes with the current visa system is the long waits for Immigrant visas or green cards due to outdated numerical limits established almost a quarter of a century ago.  These numerical limits do not cater for the visa demands of today.  For example, a foreign worker with an advanced degree who is a citizen of India is currently waiting almost 10 years for an Immigrant visa to be available according to the November 2014 visa bulletin.  This numerical limit is juxtaposed against an immigration system which also has failed to issue all available immigrant visas for a fiscal year.

The resulting backlogs prevent US. employers from attracting and retaining some of the best and brightest highly-skilled workers who are often educated in the United States.  Often a highly-skilled foreign worker’s time in temporary non-immigrant status runs out before the backlog becomes current.  For example, a L1b intracompany employee with specialized knowledge only has 5 years in L1b status but it is currently taking at least a minimum of 11 years, according to November 2014 visa bulletin, to obtain a green card assuming that person is an citizen of india, has a Bachelor Degree and has four years of experience. 

This makes little sense especially where as part of the Green Card process, the employer has to test the labor market and show the unavailability of US. workers.  That process in itself is disingenuous as it requires the employer to spend substantial time and money advertising and recruiting for a job and making applicants waste time on interviewing for a job which has already been filled.  Only after that charade can an employer file a labor certification with the Department of Labor which is currently taking in the best case scenario 8 months to be adjudicated. 

The permanent labor certification process delays the filing of the Green Card application with USCIS.  This delay is further exacerbated by the unavailability of immigrant visas for workers from certain countries.  Not only are wait times an inconvenience for these workers but these wait times are an impediment to their natural career progression.  Workers can only change jobs if the job “is in the same or similar occupation”.  The uncertainty of what this phrase really means often prevents workers from accepting promotions or accepting better job opportunities.  

Secretary Jeh Jonson proposes the following solutions in his Memorandum:

 USCIS should continue to work with the Department of State to ensure that all immigrant visas authorized by Congress are issued when there is a sufficient demand.

  • Improve the current system to determine when visas are available to applicants during a current fiscal year. 
  • USCIS must issue policy and regulatory changes to provide stability to beneficiaries of employment-based immigrant petitions.
  • Specifically, USCIS must clarify and amend its regulations to ensure that approved long-standing visa petitions remain valid in certain circumstances where the employee has changed jobs or has obtained a promotion to a supervisory position.

 In addition to these proposals, it is expected that regulations will be enacted that will allow workers with approved immigrant petitions who are unable to file adjustment of status applications due to visa quota backlogs to obtain the benefits of adjustment of status applications such as employment authorization and advanced parole.  This will help foreign workers evade the capricious adjudication of renewal of non-immigrant when they travel abroad and allow employees to switch employers.

Reforming Optical training for Foreign Students and Graduates of US. Universities.

Under current regulations, foreign students on F-1 visas may request 12 months of additional F-1 visa status for optional practical training (OPT).  OPT allows a student to obtain temporary work in their field of study to gain practical experience.  It must be approved by the educational institution and may occur before or after graduation. Students in the science, technology, education or mathematical (STEM) fields can obtain an additional 17 months of OPT for a total of 29 months. This extension has helped the United States in retaining some of its most talented STEM graduates from departing the United States and taking their skills overseas.  

The November 20, 2014 Memorandum recommends that USCIS develop regulations for notice and comment that expands the degree programs eligible for OPT and extends the time period and use of OPT for foreign STEM students and graduates including extending post-Masters OPT where only the first degree is in a STEM field.

Promoting Start-Ups, Research and Development in the US.

President Obama has underscored the importance of enhancing employment opportunities for foreign inventors, researchers and founders of start-ups wishing to create jobs and conduct research and development in the United States.  The November 20, 2014 Memorandum recommends two administrative improvements to our employment-based immigrant system for this purpose:

The National Interest Waiver which provides aliens with advanced degrees or exceptional ability to apply for green cards without employer sponsorship if their job is in the national interest, is one of the most underutilized visas.  USCIS is directed to issue guidance or regulations to clarify the standard by which a National Interest Waiver can be granted for the purpose of promoting its greater use in benefitting the US. Economy.

  1. USCIS is directed under its “significant public benefit” parole authority to propose a program that will permit DHS to grant parole status on a case-by-case basis to researchers, inventors and founders of start-up businesses who have obtained significant US. funding or otherwise hold the promise of job creation and innovation through the development of new technologies or cutting-edge research. Parole in these instances would help entrepreneurs start businesses in the United States instead of abroad. 

Bringing Greater Consistency to the L1B Program. Many multinational companies bring employees to the United States who have specialized knowledge in the company’s products or processes.  This visa is known as the L1B visa.  Inconsistent adjudications of these visas has created uncertainty for many companies relying on bringing foreign employees with specialized knowledge to the United States.  USCIS is directed to issue a policy memorandum that clarifies exactly what is meant by “specialized knowledge” to provide greater consistency in the adjudication of L1B petitions and to enhance companies’ confidence in the program.

These provisions, once implemented, will help alleviate some of the problems produced by our broken immigration system but it is really the duty of Congress to finish the job.  The only provision that has a projected timeline is the plan to give employment authorization to certain spouses of long time H-1B visa holders who have been approved for permanent residency (issued in May of this year). We anticipate the final rule to be published this month or in early January 2015. Regulations which have a limited impact can be issued as interim rules and take effect immediately. However, most regulations require the publication of a proposed rule with a 30 to 60-day comment period. Afterwards, the government agency must cull though public comments and decide if revisions to the proposed regulation are in order.

Of particular note is the Department of Labor’s (DOL) announcement, separate and apart from the November 20 Memorandum, that it will modernize the PERM regulations.  DOL has announced it will initiate a review of the decade old PERM program and relevant regulations. As part of this review, the Department will seek input on the current regulation, including how it could be modernized to be more responsive to changes in the national workforce.

Specifically, the Department will seek input on the following:

Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;

  • Methods and practices designed to modernize U.S. worker recruitment requirements;   
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

While we are excited about these proposed changes, we can only be cautiously optimistic.  Historically, promised policy guidelines often take years to be issued or have never materialized. USCIS specifically states on its website that “USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible.  Some of these initiatives will be implemented over the next several months and some will take longer.”  The challenge for the business community, foreign workers and all stakeholders is to make sure that these measures are initiated, drafted, and implemented in a timely fashion.

Schedule Free Consultation  

White House Leaks President Obama's Immigration Reform Early

 

executive action; immigration reformExtracts of President Obama's Immigration Action have been leaked by the White House.docs/White-House-Details-on-Anticipated-Administrative-Relief.pdf  Essentially, you must pass criminal and background checks, pay taxes and a fee and show the following:

are a parent of a US. citizen or lawful permanent resident on the date of the announcement and have been in the USA since January 1 2010

or

  • are an individual who arrived in the USA before turning 16 and before January 1 2010 regardless of how old they are 
The Government also states it will reduce wait times that families are separated while obtaining green cards.  Undocumented immigrants who are immediate relatives of lawful permanent residents or sons and daughters of US citizens can apply to get a waiver if a visa is available.  
You must have been in the USA for at least 5 years to qualify for these programs.  Recent border crosses are ineligible (defined as entering after Jan 1, 2014)
The Government will not begin accepting applications until early 2015.

Schedule Free Consultation  

Visa Bulletin Predictions + further EB2 Retrogression for India

 
 EB-2 Visa, EB-2 Visa Retrogression, Green CardCharles ("Charlie") Oppenheim, Chief of the Visa Control
and Reporting Division, U.S. Department of State sat down with American Immigration Lawyers Association (AILA) to provide his insight into his visa predictions for October 2014 and beyond. 

The new fiscal year begins on October 1, and with it comes a new infusion of
visa numbers! Below are highlights from the October 2014 Visa
Bulletin
and Charlie's predictions for future movement based on information
available as of September 9, 2014.

EB-2 India: Retrogression Imminent

As articulated in Section D of the Visa Bulletin, retrogression of EB-2 India
appears to be imminent, and could happen as early as November. The October 2014
priority date for EB-2 India is May 1, 2009. Given current demand, the priority
date will retrogress, possibly to a date in early 2005. Members should plan to
file adjustment of status applications by the end of October for any eligible
EB-2 India clients, as the window of opportunity may be closing.

A major factor in this anticipated retrogression is the large volume of EB-3
to EB-2 upgrades for Indian-born applicants. Based on filings at USCIS, Charlie
anticipates a huge volume of India EB-2 demand in the coming months.

NOTE: In addition, the maximum number of EB-2 immigrant
visas which are available for India for Fiscal Year 2014 has been reached.
Therefore, EB-2 India visas are "unavailable" until October 1, 2014.
USCIS offices may continue to accept and process EB-2 India cases with
priority dates earlier than May 1, 2009 during the month of September.

However, instead of being acted upon immediately, those cases will be held in
the Visa Office's "Pending Demand" file until October 1, 2014, at which time
they will be authorized.

EB-5 China

Following our last report, Charlie announced that EB-5 China numbers were
depleted through the end of the fiscal year (September 30, 2014). Though EB-5
China remains current for the start of the new fiscal year in October, Charlie
continues to predict that a cut-off date will be imposed at some point during
the second half of the fiscal year, possibly as early as May. This prediction is
based on the assumption that USCIS will continue to issue approvals of EB-5
petitions at the current rate, as well as an assumption that a significant
portion of the more than 5,000 applicants with approved EB-5 petitions at the
National Visa Center (NVC) will come forward to be processed. It is also likely
that more applicants will come forward to finalize action on their cases as we
enter the final year of the three-year regional center pilot program. It is
hoped that sufficient demand data will be available in January which will help
in predicting future movement in this category.

Philippines

Demand for both employment-based and family-based visas for the Philippines
continues to decrease which accounts for the advancing priority dates in these
categories. The cut-off date for the EB-3 and "Other Worker" categories for the
Philippines is the same as it is worldwide, October 1, 2011. The NVC has been
sending "Choice of Address and Agent" (DS-3032) forms to beneficiaries
in an effort to spur demand but so far it is not materializing. Though demand is
low and dates will remain favorable for the foreseeable future, this may change
if many more applicants come forward to claim immigrant visas.

A Glimpse Into the Preference-Based Visa Process

Have you ever wondered exactly how DOS and USCIS coordinate to ensure
preference-based visas are processed efficiently? This month, Charlie provides
some insight into the process.

In spring 2007, DOS implemented a new system to address USCIS processing
problems that resulted when cut-off dates retrogressed prior to final action on
a case. Prior to that time, USCIS would request a visa number from DOS through
an automated system upon completion of processing an adjustment of status
application. DOS would either grant authorization and allocate a visa number, or
deny authorization if the applicant's priority date was not current. If
authorization was denied, USCIS would place the file on the shelf and the
adjudicating officer was required to monitor the Visa Bulletin and pull the case
when the priority date became current. As a result of the spring 2007 upgrade,
cases that are denied authorization due to a non-current priority date are now
accepted by DOS and maintained in a "Pending Demand" file. When the priority
date becomes current, DOS automatically authorizes the case and notifies the
appropriate USCIS office.

This system enables greater efficiency for USCIS and is a safeguard against
cases "slipping through the cracks." It also provides DOS with greater
visibility of the pre-adjudicated demand, thus enabling Charlie to better
predict priority date movement

Schedule Free Consultation  

F-1 Student Visa Seminar : From F-1 VIsa to Green Card & Beyond

 

F-1 visa, green cardPlano Multicultural Outreach Roundtable to Present Fall Immigration Seminar

The F-1 Student Visa and Beyond: Creating a Game Plan for Working and Maintaining Status in the United States

    
       The Plano Multicultural Outreach Roundtable and Bell Nunnally & Martin, LLP will present their Fall Immigration Seminar, The F-1 Student Visa and Beyond: Creating a Game Plan for Working and Maintaining Status in the United States. This no-charge interactive seminar provides a comprehensive overview of immigration laws as applied to F-1 students. F Visas are a type of non-immigrant student visa that allows foreigners to pursue education in the United States.
       The keynote speaker at the seminar will be Karen-Lee Pollak. Pollak chairs Bell Nunnally & Martin’s Immigration Section. She was selected to D Magazine’s “Best Lawyers in Dallas 2014” list, featured as one of Newsweek’s Leaders in Immigration Law Showcase and listed as Texas Rising Star® by Texas Monthly, she provides full-service legal immigration counsel to large corporations, small businesses and individuals.

       F-1 students, prospective F-1 students and post graduate students are invited to attend. The seminar will help students develop a plan for maintaining immigration status and working in the United States. The seminar will cover various aspects about student visa status including:

  • Working while in F-1 status-when USCIS approval is and is not required
  • VISA Options after studying-DACA, H1B Petitions, “Cap Gap” relief and beyond
  • Avoid costly and often unfixable mistakes in maintaining Immigration Status
  • Develop strategies for maintaining status in the United States during and after study
  • Understand your options to remain in the United States after studying

      The seminar will be held on September 30, between 6 and 8 p.m. at Collin College, Spring Creek Campus, Room B124, 2800 E. Spring Creek Parkway, Plano, Texas 75074. Please RSVP to the event to immigration@bellnunnally.com

 

Schedule Free Consultation  

CHINA EB-5 VISAS UNAVAILABLE FOR THE REST OF FY2014

 

EB-5, PERMANENT RESIDENCY,INVESTMENTCharles Oppenheim, U.S. Department of State, Chief, Immigrant Visa Control announced that the China Employment Fifth (EB-5) preference category has become "Unavailable" for the remainder of the FY-2014 because the maximum number of visas allocated ot chinese nationals has been reached.  

However, all China EB-5 applicants who have been scheduled for interview at an overseas post based on the original establishment of the August and September cut-off dates would have been allotted visa numbers for potential use by their case. Such applicants will not be impacted by the "Unavailability" of the China EB-5 category for the remainder of FY-2014.

In this context, "Unavailable" means that no additional numbers are available for "comeback" cases originally scheduled for interview in an earlier month who are just now returning, or for those first requesting an interview. The only exception would be if a post had "otherwise unused" numbers available, because applicants either failed to appear or failed to overcome a refusal during the month (i.e., August or September) of originally scheduled interview.

USCIS offices may continue to accept and process China Employment Fifth preference cases and submit them in the normal manner. However, instead of being acted upon immediately, those cases will be held in the Visa Office's "Pending Demand" file until October 1, 2014. At that time, all eligible cases will be automatically authorized from the "Pending Demand" file under the FY-2015 annual numerical limitation. Each USCIS requesting office will receive an e-mail notification of such authorizations, which will be effective immediately.

Schedule Free Consultation  

EB-5: USCIS continues to recognize RIMS II for Indirect Job Creation

 

EB-5, Investor visa, investor green cardOn June 19, 2013, the U.S. Bureau of Economic Analysis (BEA) issued a docs/bea report.pdf announcing its plan to eliminate its Regional Input-Output Modeling System (RIMS II) economic model. That model has been specifically approved by USCIS and RIMS II reports have been heavily relied upon by a majority of EB-5 investors and Regional Centers in filing their EB5 applications.

This announcement has left many in the EB5 arena wondering what type of evidence of job creation would BEA start accepting and whether USCIS would continue ot accept RIMS II modeling. 

On July 3, 2014, the BEA announced its "plans to release in 2015 a modified economic model to replace the original" RIMS II model.

Former BEA economist, John Barrett of Performance Economics LLC told David Morris, Chair of the AILA/EB-5 Committee summarized the BEA News as follows:

  • No change in the methodology of the USCIS approved benchmark series of multipliers;
  • Benchmark series now based on the 406-industry 2007 benchmark I/O table instead of 2002, an improvement;
  • USCIS should continue to take a positive view of RIMS II, as they have in the past.

According to Barrett, “Given this announcement by BEA, there is no reason why USCIS wouldn’t continue to recognize RIMS II as a ‘verifiable methodology'".  The Benchmark Series multipliers will be produced exactly as they have in the past and therefore USCIS would be hard pressed to find a reason to reverse itself on past recognition granted RIMS II.”

If your EB5 application is through a Regional Center you must make sure that if the project is relying on indirect job creation reports that these reports continue to be valid and make sure that the reports have been approved by a qualified econoomist as to the impact of the RIMS II changes.

Schedule Free Consultation  

Green Card DV Lottery-2015 Entrants? Check If You have Won!

 

 Diversity Visa Lottery Scams, Diversity Visa Program, Diversity Visa Lottery, Green Card Lottery, green card, Green CardThe Kentucky Consular Center in Kentucky has registered and notified the winners of the DV-2015 diversity lottery.  The diversity lottery makes available *50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States.  Approximately 125,514 applicants have been registered and notified and may now make an application for an immigrant visa. Since it is likely that some of the first *50,000 persons registered will not pursue their cases to visa issuance, this larger figure should insure that all DV-2015 numbers will be used during fiscal year 2015 (October 1, 2014 until September 30, 2015).

Applicants registered for the DV-2015 program were selected at random from 9,388,986 qualified entries (14,397,781 with derivatives) received during the 30-day application period that ran from noon, Eastern Daylight Time on Tuesday, October 1, 2013, until noon, Eastern Daylight Time on Saturday, November 2, 2013.  The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country. 

For July, immigrant numbers in the DV category are available to qualified DV-2014 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

RegionAll DV Chargeability Areas Except Those Listed Separately 
AFRICA 56,300 Except:
Egypt:      30,900
Nigeria:     17,400
ASIA 8,900  
EUROPE 36,300  
NORTH AMERICA (BAHAMAS) CURRENT  
OCEANIA 1,300  
SOUTH AMERICA,
and the CARIBBEAN
1,550  

During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years.  Those selected will need to act on their immigrant visa applications quickly.  Applicants should follow the instructions in their notification letter and must fully complete the information requested.

Registrants living legally in the United States may apply for adjustment of their status through the United States Citizenship and Immigration Service.  Once the total *50,000 visa numbers have been used, the program for fiscal year 2015 will end.  Selected applicants who do not receive visas by September 30, 2015 will derive no further benefit from their DV-2015 registration.  Similarly, spouses and children accompanying or following to join DV-2015 principal applicants are only entitled to derivative diversity visa status until September 30, 2015.

Dates for the DV-2016 program registration period will be widely publicized in the coming months.  Those interested in entering the DV-2016 program should check the Department of State’s Visa web page in the coming months. To read a great article on winning the Diversity Visa Lottery go to http://www.forbes.com/sites/quora/2014/03/18/what-is-it-like-to-win-the-diversity-visa-lottery/



Schedule Free Consultation  

Department of State Release the June 2014 Visa Bulletin

 

 Visa Bulletin, visa bulletin, Diversity Visa Program, US ImmigrationThe State Department has released the Visa Bulletin for June 2014. http://www.immigrationbn.com/Portals/52046/docs/visa bulletin.pdf  The cut-off date for all family-based F-2A categories (for spouses and (unmarried, minor) children of lawful permanent residents retrogressed by more than a year for all countries. Unexpected and dramatic increase in demand in the employment-based third and "other worker" categories also resulted in retrogression in those categories, except for the Philippines. Hardest impacted is the EB-3 China category which retrogressed by 6 years from October 1, 2012 to October 1, 2006.  The "other worker" China category retrogressed from October 1, 2012 to January 1, 2003. A notice regarding the 2015 Diversity Visa Lottery winners is also included.

RETROGRESSION OF JUNE CUT-OFF DATES

WORLDWIDE F2A: 
The cut-off date for the Family F2A category was advanced at a very rapid pace during fiscal year 2013 in an effort to generate demand to use all numbers available under the annual limit. Department of State says that "[t]hose movements have resulted in a dramatic increase in the level of applicant demand being received during the past seven months. This has required the retrogression of the Family F2A cut-off date for June in an effort to hold number use within the annual numerical limit". Further retrogression cannot be ruled out should demand by applicants with very early priority dates continue to increase.

MEXICO F2A:  
Despite a previous retrogression, the level of demand has remained excessive, resulting in a further retrogression of this cut-off date to hold number use within the annual limit. 

Employment Third, and Third Other Workers:
The unexpected and dramatic increase in demand being received from U.S. Citizenship and Immigration Service Offices during the past several months has resulted in number use approaching the annual limit for this category. As a result, it has been necessary to retrogress the Worldwide, China, and Mexico cut-off dates for the month of June.

It is important ot note that the dates in the Visa Bulletin can often be misleading. Some dates, particularly in the Employment Based Categories, are “current” now, but may backlog before you collect your documents to file the adjustment of status application.  On the other hand, particularly in the Family Based Categories, look closer on the Bulletin than they are in reality.

Schedule Free Consultation  

Employment Authorization for Spouses of H-1B Visa Holders?

 

H1_B, DHS, USCIS H-4Today May , 2014, the Department of Homeland Security (DHS) today announced the publication of two proposed rules, including a rule to extend employment authorization to spouses of certain H-1B workers, and a proposal to enhance opportunities for certain groups of highly-skilled workers by removing obstacles to their remaining in the United States. It is hoped that Together these actions will help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world.

“The proposed rules announced today provide important support to U.S. businesses while also supporting economic growth here in the U.S.,” said Deputy Secretary Alejandro Mayorkas. 

“These steps will help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world to support companies here at home. Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.”

“These two proposed rule changes are an integral part of the Administration’s efforts to strengthen entrepreneurship and innovation, and to help the United States attract and retain highly skilled immigrants,” said U.S. Secretary of Commerce Penny Pritzker. “The fact is, we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that. These actions promise to unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.

Proposed Rule to Extend Employment Authorization to Spouses of Certain H-1B Workers

This proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming.  Frequently, employers will petition for an immigrant visa for an H-1B worker, which enables individuals to become lawful permanent residents.  Lawful permanent residents are generally eligible to become naturalized U.S. citizens after five years.

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

  • Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Proposal to Enhance Opportunities for Highly-Skilled Workers
This proposed regulatory change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States.   

Specifically, the change to the regulation would regulation would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. 
  • Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of workers in E-3,  H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence. 

Together these actions will help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world.

“The proposed rules announced today provide important support to U.S. businesses while also supporting economic growth here in the U.S.,” said Deputy Secretary Alejandro Mayorkas.  “These steps will help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world to support companies here at home. Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.”

“These two proposed rule changes are an integral part of the Administration’s efforts to strengthen entrepreneurship and innovation, and to help the United States attract and retain highly skilled immigrants,” said U.S. Secretary of Commerce Penny Pritzker. “The fact is, we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that. These actions promise to unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.

Proposed Rule to Extend Employment Authorization to Spouses of Certain H-1B Workers

This proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming.  Frequently, employers will petition for an immigrant visa for an H-1B worker, which enables individuals to become lawful permanent residents.  Lawful permanent residents are generally eligible to become naturalized U.S. citizens after five years.

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

  • Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
  • Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Proposal to Enhance Opportunities for Highly-Skilled Workers
This proposed regulatory change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States.   

Specifically, the change to the regulation would regulation would:

  • Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
  • Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. 
  • Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of workers in E-3,  H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence. 

Schedule Free Consultation  

USCIS Announces H-1B Lottery

 

H1-B H-1B, USCIS, H1BUSCIS announced on April 7 that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption.

USCIS received about 172,500 H-1B petitions during the filing period which began April 1, including petitions filed for the advanced degree exemption. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced degree exemption. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

Schedule Free Consultation  

All Posts