Tag Archives: USCIS

USCIS Regulatory Proposals Aim to Improve Immigration Process for High-Skilled Foreign Workers

The White House is continuing to slowly roll out many of the 2014 promised changes to improve the U.S. immigration system.  New regulations,  published in the Federal Register on December 31, 2015 seek to modernize and improve certain employment-based immigrant and nonimmigrant visa programs for high-skilled foreign workers. Benefits to participants in those programs would include improved processes for U.S. employers seeking to sponsor and retain immigrant and non-immigrant workers; greater stability and job flexibility for such workers; and more transparency and consistency in the application of DHS policy.

Many of these changes are aimed at improving the ability of U.S. employers to hire and retain high-skilled foreign nationals who are already the beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs), while also increasing employment flexibility for such workers. The proposed regulations would increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities in the U.S. job market.

Some of the highlights of the proposed rule include:

Improved Job Portability with an Approved I-140:
The proposed rule would limit the grounds for automatic revocation of approved I-140 Petition for Immigrant Worker. Once an I-140 has been approved for 180 days or more, it will still be valid for purposes of retaining one’s priority date and extending one’s H-1B status, even if the employer subsequently withdraws the petition or the employer’s business shuts down. The exception to this rule would be cases of fraud, misrepresentation, and a few other limited situations.

One-Time Grace Periods
The proposed rule would authorize a one-time grace period for certain nonimmigrant workers of up to sixty (60) days after employment ends, or until the existing validity period ends, whichever is shorter. This grace period would apply to those in H-1B, E, L-1, and TN status. Similar flexibility already applies to F-1 nonimmigrant students and j-1 nonimmigrant exchange visitors.

Eligibility for Employment Authorization in Compelling Circumstances
The proposed rule would allow certain high-skilled individuals in the United States in H-1B, H-1B1, L-1, O-1, or E-3 nonimmigrant status who are the beneficiaries of an approved I-140 petition to apply for one year of restricted employment authorization if they:

  1. are unable to adjust status due to visa backlogs; and
  2. can demonstrate “compelling circumstances” which justify issuing an employment authorization document.

At this time, DHS has not defined the term “compelling circumstances,” however the proposed rule offers possible examples such as serious illnesses/disabilities or cases of employer retaliation. Accordingly, this benefit will likely only apply in very limited circumstances.

Automatic Extensions of EAD Work Authorization in Certain Circumstances
The proposed rule would amend the way USCIS processes applications for employment authorization to help prevent gaps in work authorization that are problematic for foreign nationals and their U.S. employers. Specifically, DHS is proposing to repeal the current regulations that require the issuance of interim EADs if the I-765 application for work authorization (“EAD”) has been pending more than 90 days. Under the new rule, USCIS will automatically extend the EAD for up to 180 days upon the timely filing of a renewal application for applicants who meet certain requirements. To be eligible for this benefit, the renewal application must be based on the same employment authorization category as the expiring EAD, among other requirements.

The proposed rule also clarifies various policies and procedures related to the adjudication of H-1B petitions, including extensions of status, determining cap exemptions, and counting workers under the H-1B visa cap.

USCIS is seeking public comment on the proposed rule through February 29, 2016. The proposed changes would take effect on the date indicated in the final rule once it is published in the Federal Register.

Special thanks to Christina Haines, Esq. for her assistance with this blog post.

Duane Morris Pro Bono Attorneys Step Up for Citizenship

On Saturday, September 19, 2015  Duane Morris attorneys in Philadelphia and Boca Raton offices assisted Legal Permanent Residents with their U.S. Citizenship applications. The annual event, Pro Bono Citizenship Day, is organized by the American Immigration Lawyers Association. Duane Morris has participated for the last 6 years.  It is estimated that there are 8.8 million Legal Permanent Residents who are eligible to naturalize in the United States, with 50,000 of those residing in Philadelphia.  To learn more about the Philadelphia event, read Valentine Brown’s article that appeared in the Legal Intelligencer on Friday, September 19, 2015.

New Cut Off Date on Visa Bulletin Brings Welcome Relief for Immigrants

The  recent changes, to  the State Department’s Cut Off Date system for determining who can file their adjustment of status applications and when they can be filed, announced in the October 2015 Visa Bulletin brings welcome relief to many categories of immigrants who often wait in long queues before they are able to submit their adjustment of status applications. Continue reading New Cut Off Date on Visa Bulletin Brings Welcome Relief for Immigrants

USCIS Issues Final Guidance on H-1B Amendments under Matter of Simeio

U.S. Citizenship and Immigration Services (USCIS) has released its final guidance on when to file an amended or new H-1B petition after the Matter of Simeio Solutions, LLC decision.

Change in CIS Policy on worksite/location changes: On April 9, 2015, the USCIS’ Administrative Appeals Office (AAO) issued a precedent decision, Matter of Simeio Solutions, LLC, ruling that when an H-1B employee changes work site locations, it is considered a material change that may require the filing of an amended or new H-1B petition with USCIS.

Previous USCIS Guidance:  Under the previous USCIS guidance, if a new Labor Condition Application (LCA) was filed with the U.S. Department of Labor (DOL) prior to the work site location change, no amended or new H-1B petition was required to be filed with USCIS.

New USCIS Guidance: Under the new USCIS Guidance, if an H-1B employee is changing work site locations and the new work site location is not within the same Metropolitan Statistical Area (MSA) as the current worksite location, then an amended or new H-1B petition must be filed with USCIS.

If the worksite change is within the same MSA, no amended or new H-1B petition is required; however, copies of the original certified LCA listing the current work site location will need to be posted at the new work site location prior to the H-1B employee beginning employment at the new location.  After the requisite posting period, the posted original certified LCA copies must be placed in the Public Access File notated with the dates and places of posting.

Compliance:  If an employer complied with the pre-Simeio decision USCIS Guidance, by completing a new LCA before the worksite change, and the H-1B employee work site changed occurred on or before April 9, 2015, USCIS will not pursue any new adverse actions against the employer after July 21, 2015 that are based solely upon a failure to file an amended or new H-1B petition to address the work site location change. USCIS will however, preserve the right to pursue any adverse actions (related to work site location changes) which have commenced or been completed prior to July 21, 2015, and will also still continue to pursue adverse actions for other violations.

However,  USCIS provides a safe harbor, if an employer files amended or new H-1B petitions on or before January 15, 2016 to address prior work site changes for H-1B employees (including cases that followed the pre-Simeio decision USCIS Guidance for work site location changes prior to April 9, 2015, with the filing of new LCAs listing the new work site location).   USCIS will consider those filings timely, and not subject to adverse action by USCIS for failure to file an amended or new H-1B petition to address the work site location change.

 

No End in Sight to State Department Visa Processing Delays

On June 15, we reported that the State Department computer system used for verifying the personal data of visa applicants and for printing visa stamps was crippled by a “glitch” causing worldwide delays. Today the State Department estimates that it will be at least another week before the problem is resolved.  The agency also confirmed that it was a hardware failure, which has eliminated its ability to process it’s regular volume of 50,000 applications per day. Continue reading No End in Sight to State Department Visa Processing Delays

The ABCs of Alternatives to the H-1B

The H-1B Cap for the 2016 H-1B Cap Year (October 1, 2015 – September 30, 2016) has been exhausted. 233,000 applications were submitted for approximately 85,000 slots. There is no relief in sight, as stalemate in Congress continues to prevent any meaningful immigration reform. Employers that want to hire professional workers who do not already have an H-1B from a prior lottery, will have to wait until next year or look for an alternative. While the list looks promising, in actuality it is a rare case when one of the alternatives fits an employer’s specific needs. Consulting with experienced immigration counsel is mandatory for finding a suitable alternative. The basic list of alternatives follows: Continue reading The ABCs of Alternatives to the H-1B

J-Visa Program Changes Now In Effect

The J-Visa International Exchange Visitor Program is designed to foster international exchange between the United States and the world. The program has categories for scholars, trainees, college interns, camp counselors, au pairs and many others. In spite of its original intentions, the program has gotten increasingly complex, expensive and difficult to use for employers and international visitors. This is due to stricter requirements and scrutiny now required of and by J-Visa program sponsors. The latest changes to go into effect now include the following: Continue reading J-Visa Program Changes Now In Effect

Avoiding Immigration-Related Employment Discrimination: Best Practices from the DOJ

The Department of Justice Office of Special Counsel for Unfair Immigration Related Employment Practices has been actively investigating and prosecuting employers for large and small violations. While fines can be minimal, the intrusion into a company’s day-to-day operations as well as the strong likelihood of a follow-on I-9 Audit and multiple years of re-auditing by both the DOJ and the USCIS should be deterrent enough to encourage employers to get their policies and practices in order. Continue reading Avoiding Immigration-Related Employment Discrimination: Best Practices from the DOJ

E-Verify Capabilities Continue to Expand

E-Verify is an electronic employment eligibility verification system administered by the federal government. It is voluntary for most employers, but is required to be used by  federal contractors and is mandated by several states.  In spite of its voluntary nature, many employers  choose to use the system in addition to the required I-9 process in order to verify the work authorization of their employees.  The E-Verify system has continually been improved since its inception with new capabilities regularly being added.  Three recent add-ons are discussed below: Continue reading E-Verify Capabilities Continue to Expand

USCIS Now Accepting Work Authorization Applications for Some H-4 Spouses

Valentine BrownOn May 26, 2015, USCIS began accepting work authorization applications for certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. This is a key element of President Obama’s Immigration Accountability Executive Action initiative announced on November 20, 2014. Extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants is one of several initiatives underway to modernize, improve and clarify visa programs to grow the U.S. economy and create jobs. USCIS estimates the number of individuals eligible to apply for employment authorization under this rule could be as high as 179,600 in the first year and 55,000 annually in subsequent years. Continue reading USCIS Now Accepting Work Authorization Applications for Some H-4 Spouses