Articles Posted in Final Rule

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Now is the time to begin preparing for the upcoming H-1B visa lottery. USCIS will begin to accept H-1B cap-subject petitions for fiscal year 2020 beginning Monday, April 1, 2019. Please note: employers cannot file an H-1B petition for an employee more than 6 months before the employee’s intended start date. If accepted, H-1B visa workers can begin employment by October 1st. The H-1B visa is issued for up to three years but may be extended for another three years.

By law, a congressionally mandated cap exists which limits the issuance of H-1B visas to 65,000 per year. That is why the H-1B visa is commonly referred to as a ‘lottery’ visa.

Individuals (such as F-1 students) who hold advanced degrees (U.S. master’s or higher) are exempted from the 65,000 visa cap. Such applicant’s must demonstrate that they have obtained an American master’s degree or higher to be exempted from the cap, however only the first 20,000 petitions received by USCIS will benefit from this cap exemption.

In order to qualify for an H-1B visa:

  • a foreign worker must possess both a theoretical or practical application of a body of highly specialized knowledge;
  • an employer-employee relationship must exist. Only a U.S. employer can petition the entry of a foreign employee by filing USCIS Form I-129 Petition for Non-immigrant Worker. An employer-employee relationship exists if the U.S. employer has the right to hire, pay, fire, supervise or control the work of the employee;
  • the foreign worker must possess a bachelor’s degree, its foreign equivalent, or relevant work experience. If the foreign worker does not have formal education, but has at least 12 years of relevant work experience related to the specialty occupation, they may still qualify for an H-1B visa;
  • the foreign worker must be employed in a specialty occupation related to their field of study. A specialty occupation is an occupation that requires a bachelor’s degree or its equivalent;
  • the foreign worker must be paid at least the prevailing wage for the specialty occupation in the area of intended employment;

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The Department of Homeland Security has published an advanced copy of the final rule that will amend the way the H-1B visa program will be run in the future. The official version of the final rule is set to be published in the Federal Register tomorrow January 31, 2019, and become effective April 1, 2019, the beginning of the H-1B cap visa season for fiscal year 2020.

Beginning with the upcoming FY 2020 H-1B cap season, which kicks off on April 1, 2019, USCIS will reverse the order by which it selects H-1B petitions under the H-1B regular cap and the advanced degree exemption.

USCIS will first select H-1B petitions (or registrations, once the registration requirement is implemented) submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions, a number projected to reach the advanced degree exemption.

According to USCIS, “Changing the order in which USCIS counts these allocations will likely increase the number of petitions for beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations.”

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On Saturday, September 22, 2018, the Department of Homeland Security announced a new proposed rule that may prevent non-citizens reliant, or likely to become reliant on public benefits, from gaining admission to the United States.  The new proposal entitled, “Inadmissibility on Public Charge Grounds,” has been signed by the Secretary of Homeland Security, and the proposed rule is expected to be published in the federal register in the coming weeks, according to a DHS press release.

APA Procedure

Once the proposed rule has been published in the federal register, the government must allow the public to comment on the proposed rule for a 60-day period. Once that period is over, the government will have the opportunity to review comments and make changes if necessary to the proposed rule. Thereafter, the government will publish a final rule which will become law 60 days after the date of publication.

Who is a Public Charge?

Under the Immigration and Nationality Act, a public charge is defined as an “alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge.” Such aliens are not admissible to the United States on public charge grounds.

Applicants seeking admission to the United States should be aware that, “an alien who is incapable of earning a livelihood, who does not have sufficient funds in the United States for support, and who has no person in the United States willing and able to assure the alien will not need public support, generally is inadmissible as likely to become a public charge.”

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BREAKING: The United States Citizenship and Immigration Services (USCIS) will be publishing a final rule in the Federal Register tomorrow August 30, 2018, increasing the premium processing fee charged by the agency by 14.92 percent.

According to USCIS the increase in the fee accounts for inflation according to the Consumer Price Index. The last time that the filing fee for premium processing was updated to account for inflation was in the year 2010.

The adjustment in the fee will bring the premium processing fee to $1,410 instead of $1,225. The final rule states that the ruse will become effective 30 days after publication in the federal register which would fall on September 30th of this year. Any applications postmarked on or after September 30th will need to include the new $1,410 filing fee instead of the previous filing fee.

DHS has authorized the fee increase without notice and comment, because according to DHS it is “unnecessary.” The government cites 5 U.S.C. 553(b)(B) and INA section 286(u), 8 U.S.C. 1356(m) as authority to adjust the fee without notice or public comment.

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