H-1B Quota has been Filled!
U.S. Citizenship and Immigration Services (USCIS) announced on April 7 that the H-1B cap for fiscal year 2017 was reached—meaning that in five business days, U.S. employers filed more petitions for an H-1B visa to hire a skilled foreign worker than the entire year’s allocation of visas available under current law. This means that USCIS will conduct a lottery to determine which employers will get the visas they need.
Every year, U.S. employers seeking highly-skilled foreign professionals submit their applications for the pool of H-1B visas beginning on April 1 each year. U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering and computer programming.
Congress has set a limit of 65,000 visas for new hires, and 20,000 additional visas for foreign professionals who graduate with a Master’s or Doctorate from a U.S. university. Current H-1B workers who have been counted previously against the cap are not counted toward the cap. In recent years, demand for H-1B visas has outstripped the supply and the cap has been quickly reached. In FY 2015, more than 230,000 petitions were received. This leaves some employers with no ability to access the workers they have determined they need. This year is no exception. USCIS also noted that it received more than the limit of 20,000 H-1B petitions filed under the U.S. advanced degree exemption.
The H-1B lottery will randomly select 65,000 visas for the general category and 20,000 for the advanced degree category from among the petitions submitted. Employers who are not selected in the lottery will have to wait until the next fiscal year to submit new petitions. The uncertainty employers face because they don’t know whether or not they will be able to hire the workers they want can be difficult.
USCIS also noted they will continue to accept and process petitions that are otherwise exempt from the cap including:
- Extend the amount of time a current H-1B worker may remain in the United States;
- Change the terms of employment for current H-1B workers;
- Allow current H-1B workers to change employers; and
- Allow current H-1B workers to work concurrently in a second H-1B position.
Once again, the exhaustion of the yearly H-1B cap in a matter of days shows that our immigration laws and policies are out of touch with business and economic demands. Policymakers must recognize that the H-1B and other temporary nonimmigrant visa programs play an important role in growing and innovating the U.S. economy, and enabling U.S. businesses to compete for global talent.
New OPT STEM Extension Rule Delivers Much Awaited Relief to H-1B Applicants
The new rule will permit employers to retain the talented international students who rely upon the F-1 nonimmigrant student visa for a longer period. USCIS will begin accepting applications under this provision on May 10th, 2016. Prior to that date, USCIS will continue to accept applications under the existing 17-month STEM OPT procedure. This new and long-awaited STEM regulation includes the following major provisions: • It increases the STEM OPT extension period from 17 months to 24 months (for a total STEM OPT period of 36 months); • It automatically extends work authorization if students properly file a STEM OPT extension; • It permits students currently approved for a 17-month extension of work authorization to apply for the balance of the new 24-month extension if they meet certain requirements pertaining to timing of their applications; • It allows students enrolled in a subsequent STEM degree program at a higher level to become eligible for an additional 24-month STEM OPT extension upon completion of the subsequent, higher level program; • It permits eligibility for the 24-month STEM OPT extension under the new rule to be based on a previously obtained STEM degree (with certain limitations); • It provides new and clearer definitions of STEM fields of study within the Department of Education categories; • It requires students and employers to submit a formal training plan (i.e., learning objectives for the student) and certain employer attestations to protect the U.S. workforce-both of which the student and employer must submit on Form I-983 Training Plan for STEM OPT Students (to be promulgated by USCIS); • It adds new reporting requirements for students and their employers, including confirmation of the student’s physical residence and employment status every six months, regular evaluations regarding the student’s progress with the training plan, and immediate notification regarding termination of the student’s employment; and
• It provides for DHS site visits to employer locations in which STEM OPT students are employed. The DHS will generally give advance notice of such visits but may also conduct an unannounced visit if triggered by a complaint or other evidence of violation of the regulations.
In addition, the updated rule retains other original provisions from the 2008 interim rule, such as:
• E-Verify and reporting requirements for STEM OPT employers; and
• a cap-gap extension for F-1 nonimmigrants with timely filed H-1B cap-subject petitions requesting change of status.
New Rule Requires Employers to be Vigilant and To Establish Mentoring and Training Programs for OPT Participants.
One of the most notable changes in the new rule is the requirement for employer implementation of formal mentoring and training programs for OPT participants. Employers will be required to create a mentoring and training plan, which is signed and certified by the employer (and the student) as a prerequisite to obtaining the STEM extension period; this plan is to be submitted on USCIS' new Form I-983 (the "Plan"). The Plan must describe the field in which the employee will receive training; list the name, title, and contact information of a designated supervisor within the company; and describe in detail the following:
• how the proposed work assignment is directly related to the student’s degree;
• a list of the goals and objectives of the program, including a detailed explanation on how the goals will be achieved;
• a list of the supervisor’s qualifications to provide training and how often the supervisor will interact with the student to further training;
• a list of other employees who will supervise or train the student and their respective qualifications; and
• the methodology for measuring the student’s acquisition of the required skills and knowledge for the position.
Another important aspect of the new rule is that it expands the amount of time a foreign student may be unemployed while in OPT status. Students may not be unemployed for an aggregate of more than ninety (90) days during the initial OPT period. Under the new rule, students granted a 24-month OPT extension may not be unemployed for an aggregate of more than one hundred and fifty (150) days (which, prior to the new rule, was 120 days) during the total OPT period (i.e., students may not be unemployed for more than 150 days for the twelve (12) months of initial OPT plus the 24-month STEM extension period).
Administrative Appeals Office Approves National Interest Waiver for Specialty Care Physician
Immigration Solutions LLC applauds the Administrative Appeals Office’s (AAO) decision to withdraw the Texas Service Center Director’s (TSC) restrictive interpretation in Matter of H-V-P-, a case involving a national interest waiver. The TSC decision would have prevented a specialty care physician (hematology-oncology) from providing medical care in a community that has a government-designated shortage of health care professionals.
To obtain an employment-based visa in most categories, a noncitizen usually needs a job offer from a U.S. employer. However, in Matter of H-V-P-, the AAO recognized that the law requires USCIS to waive the job offer requirement for both primary and specialty care physicians who work full-time in an area with a shortage of health care professionals (and meet other requirements not at issue here). The AAO also concluded that TSC’s narrow interpretation of an implementing regulation as requiring a specific specialty care shortage certification was inconsistent with past USCIS practice and would “frustrate the statutory scheme Congress enacted to improve access to medical care in underserved areas.”
In reaching this conclusion, the AAO adopted many of the arguments in an amicus brief submitted by the Council, AILA and the International Medical Group Taskforce.
TSC’s denial is another example of a culture of “no,” that takes the most restrictive interpretation of a law without regard to the law’s purpose or to the detrimental impact of its decision on individuals and businesses in the United States. The AAO’s resounding rejection of TSC’s attempt to change a longstanding agency interpretation with a single decision is a most welcome development.
TPS for SUDAN has been EXTENDED
Secretary of Homeland Security Johnson has extended Sudan’s designation for Temporary Protected Status (TPS) for an additional 18 months due to the ongoing armed conflict and extraordinary and temporary conditions in Sudan that prevent its nationals from safely returning. The extended designation is effective May 3, 2016, through November 2, 2017.
Current TPS Sudan beneficiaries seeking to extend their TPS status must re-register during a 60-day period that runs from January 25, 2016 through March 25, 2016. U.S. Citizenship and Immigration Services (USCIS) encourages beneficiaries to re-register as soon as possible.
The 18-month extension also allows TPS re-registrants to apply for a new Employment Authorization Document (EAD). Eligible Sudan TPS beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of November 2, 2017. USCIS recognizes that some re-registrants may not receive their new EADs until after their current work permits expire. Therefore, USCIS is automatically extending current TPS Sudan EADs bearing a May 2, 2016 expiration date for an additional six months. These existing EADs are now valid through November 2, 2016.
Supreme Court will decide the fate of DAPA
Many foreign nationals and immigration attorneys have welcomed the news that the Supreme Court will review the injunction that has been placed on President Obama’s executive actions. If the Supreme Court removes the injunction, foreign nationals will be able to apply for expanded DACA (deferred actions for children up to 16 years old who entered the US and have lived in the US since January 1, 2010) and DAPA (deferred action for parents of USC who were born prior to November 20, 2014.
BREAKING NEWS ABOUT DAPA
The Fifth Circuit Court of Appeals denied the federal government's appeal of the preliminary injunction that has halted implementation of President Obama's 2014 deferred action initiatives the expansion of Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residence (DAPA).
Yemen has been designated for Temporary Protected Status (TPS) for 18 months due to the ongoing armed conflict within the country. The TPS designation for Yemen is effective September 3, 2015, and will be in effect through March 3, 2017. The designation means that, during the designated period, eligible nationals of Yemen (and people without nationality who last habitually resided in Yemen) who are approved for TPS will not be removed from the United States and may receive an Employment Authorization Document (EAD). The 180-day TPS registration period begins today and runs through March 1, 2016.
URGENT FOR HAITIANS
TPS for HAITI has been extended for 18 months, from January 23, 2016 through July 22, 2017. The extension allows currently eligible TPS beneficiaries to retain TPS through July 22, 2017, so long as they otherwise continue to meet the eligibility requirements for TPS. Re-registration is limited to persons who have previously registered for TPS under the designation of Haiti and whose applications have been granted. Re-registration runs from August 25, 2015 through October 26, 2015. USCIS will issue new EADs with a July 22, 2017 expiration date to eligible Haiti TPS beneficiaries who timely re-register and apply for EADs under this extension.
****Certain nationals of Haiti who have not previously applied for TPS may be eligible to apply under the late initial registration provisions if they meet: 1) at least one of the late initial filing criteria, and 2) all TPS eligibility criteria (including continuous residence in the US since January 12, 2011, and continuous physical presence in the US since July 23, 2011.
EXTENSION OF EMPLOYMENT AUTHORIZATION OF HAITIAN F-1 NONIMMIGRANT STUDENTS EXPERIENCING SEVERE ECONOMIC HARDSHIP AS A DIRECT RESULT OF THE JANUARY 12, 2010 EARTHQUAKE IN HAITI.
Students will continue to be allowed to apply for Employment Authorization, work an increased number of hours while in school is in session provided they satisfy the minimum course load requirements, while continuing to maintain their F-1 student status until July 22, 2017.
This relief applies only to F-1 nonimmigrant students whose country of citizenship is Haiti and who were lawfully present in the U.S. in F-1 nonimmigrant status on January 12, 2010, and who are:
- Enrolled in an institution that is Student and Exchange Visitor Program (SEVP)-certified for enrollment of F-1 students;
- Currently maintaining F-1 status; and
- Experiencing severe economic hardship as a direct result of the January 12, 2010 earthquake in Haiti
This relief applies to undergraduate and graduate students, as well as elementary school, middle school, and high school students.
Court Issues Order on DHS Rule Extending STEM OPT Period
The District Court for the District of Columbia held that a 2008 DHS interim final rule extending the period of post-graduation optional practical training (OPT) by 17 months for eligible STEM students on F-1 visas was invalid, because DHS promulgated the rule without notice and public comment. The court found, however, that vacating the rule immediately would cause substantial hardship for F-1 STEM students, and would create a major labor disruption for the technology sector. As such, the court ordered that the 2008 rule and its subsequent amendments be vacated, but that the vacatur be stayed until February 12, 2016, during which time DHS may submit the rule for proper notice and comment.
Green Cards Without a Signature Are Acceptable Documents
Permanent Resident Cards that say “signature waived” are acceptable documents for Form I-9, Employment Eligibility Verification, as long as they are unexpired and reasonably appear to be genuine and to relate to the person presenting them.
Since February 2015, USCIS has been waiving the signature requirement for people entering the United States for the first time as lawful permanent residents after obtaining an immigrant visa abroad.