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7468447528_3aaed1a0bd_bH-1B season is now in full swing. H-1B petitions will begin to be accepted by USCIS on April 1, 2016 for the 2017 fiscal year. Each year, foreign workers in specialty occupations compete for one of 65,000 H-1B visas allocated each fiscal year. Foreign workers with a U.S. Master’s degree or higher are exempt from the 65,000 congressionally mandated visa cap, however only the first 20,000 petitions received by USCIS may qualify for this cap exemption. Any petitions received after the 20,000 cap-exempt petitions have been allocated will count toward the regular cap. USCIS expects to receive more than 65,000 petitions during the first five business days of the application period. Once the H-1B cap has been reached, USCIS will notify the public, and begin selecting the H-1B petitions necessary to meet the cap through a randomized computer-generated lottery system. H-1B petitions that are not selected through this system will be rejected, along with any petitions received once the visa cap has closed. Duplicate H-1B petitions that are filed on behalf of a foreign worker by the same employer in the same fiscal year will also be rejected. 8 CFR § 214.2(h)(2)(i)(G) explicitly states that “an employer may not file, in the same fiscal year, more than one H1B petition on behalf of the same alien if the alien is subject to the numerical limitations of section 214(g)(1)(A). Filing more than one H-1B petition on behalf of the same alien in the same fiscal year will result in the denial or revocation of all such petitions.” Multiple H-1B petitions filed on behalf of the same alien by different employers during the same fiscal year is permitted although approval of such petitions is discretionary. According to USCIS, petitioners may be asked to demonstrate that a ‘legitimate business need’ exists in filing more than than one H-1B petition for the same alien. In such circumstances a request for evidence, notice of intent to deny, or notice of intent to revoke may result. This is true of both cap-subject and cap-exempt petitions filed by different employers for the same alien.

H-1B petitioners (employers) may request premium processing at the same time that the H-1B petition is filed by signing and completing Form I-907 and including the corresponding fee. Alternatively, petitioners may request premium processing once CIS notifies the petitioner whether the petition has been accepted or rejected. USCIS will not begin premium processing for H-1B cap petitions until May 16, 2016. If you are an American employer who is interested in filing an H-1B petition for a foreign worker, you must act quickly. Filing an H-1B petition is a very complicated and long process. For one if you have never sponsored a foreign worker, you will be required to register your FEIN with the Department of Labor before filing the H-1B petition. Secondly, if the foreign worker you wish to hire received their foreign degree abroad, they must obtain an academic evaluation from an accredited evaluation service. If the foreign worker you wish to hire does not have formal education, but has extensive experience in the specialty occupation, they will need to obtain work experience letters from individuals who can attest to their experience. Thirdly, once an employer has registered their FEIN with the Department of Labor, they will be required to file a Labor Condition Application with the Department of Labor and include the certified LCA with the H-1B petition. Certification of the LCA takes time. The LCA is an attestation made by the employer that they will pay the foreign worker at least the actual or prevailing wage for the occupation, whichever is higher, based on the physical location where the foreign worker will be employed. Once properly submitted to the DOL, the LCA alone takes approximately 2 weeks to be certified by the LCA. This means that in order to meet the April 1st priority date of filing, employers have a very limited period of time to decide whether they will file an H-1B petition for a foreign worker for the upcoming fiscal year. When in doubt it is best not to rush the process.

Last year, our office filed approximately seventy-six H-1B petitions for fiscal year 2016. Approximately 75% of these petitions were filed for the regular Bachelor’s cap, while only 18% of these petitions were filed for individuals holding U.S. Master’s degrees or higher. Approximately 82% of these petitions were filed with the California Service Center, while only 17% of these petitions were filed with the Vermont Service Center. The top H-1B specialty occupations, filed for fiscal year 2016 included: software engineer, technical writer, general manager, market research analyst, business specialist, budget analyst, and graphic designer.

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This morning, President Obama announced his nominee to fill the vacant seat of Antonin Scalia on the Supreme Court. Contrary to what was believed, President Obama chose the most experienced and respected nominee among his top contenders, as opposed to the most progressive choice. The final decision came down to Chief Judge of the United States Court of Appeals for the District of Columbia, Merrick B. Garland. The President’s choice reflects political concerns to seat a Justice in time for oral arguments to begin in the case, United States v. Texas, a case that challenges the President’s modified Deferred Action for Childhood Arrivals (DACA) program and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. In the coming weeks, Judge Garland will need to face the Republicans in the Senate, who have vowed to block him from sitting on the Supreme Court. In order to be confirmed, he must receive votes from Republicans in the Senate.  It is expected that Republicans will vote in Garland’s favor since he is not inclined to take leading positions on ideological questions such as DACA/DAPA. If appointed, Garland is unlikely to take a progressive approach on the bench. Throughout his career, Garland has taken a centrist or neutral view of the law. The Supreme Court is expected to hear oral arguments for United States v. Texas in April. For more on DACA/DAPA please click here.

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In this photo taken May 1, 2008, Judge Merrick B. Garland is seen at the federal courthouse in Washington, Thursday, May 1, 2008. Garland has been in this position before. The last time a seat opened up on the U.S. Supreme Court, in 2010, he was widely considered a top candidate for the job and interviewed with President Barack Obama. But the slot ultimately went to Justice Elena Kagan. (AP Photo/Charles Dharapak)
Chief Judge Garland was appointed to the United States Court of Appeals in April 1997 and became Chief Judge on February 12, 2013. He graduated summa cum laude from Harvard College in 1974 and magna cum laude from Harvard Law School in 1977. Following graduation, he served as law clerk to Judge Henry J. Friendly of the U.S. Court of Appeals for the Second Circuit and to U.S. Supreme Court Justice William J. Brennan, Jr. From 1979 to 1981, he was Special Assistant to the Attorney General of the United States. He then joined the law firm of Arnold & Porter, where he was a partner from 1985 to 1989 and from 1992 to 1993. He served as an Assistant U.S. Attorney for the District of Columbia from 1989 to 1992, and as Deputy Assistant Attorney General in the Criminal Division of the U.S. Department of Justice from 1993 to 1994. From 1994 until his appointment as U.S. Circuit Judge, he served as Principal Associate Deputy Attorney General, where his responsibilities included supervising the Oklahoma City bombing and UNABOM prosecutions.

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The Obama administration may announce its choice for the Supreme Court nomination as early as this week. We have learned that there are three contenders being considered for the Supreme Court nomination. All three candidates serve as judges for the United States Court of Appeals for the District of Columbia, and are well respected by both parties. They include Sri Srinivasan, Merrick Garland, and Paul Watford, who is rumored to be at the top of the President’s list. The Supreme Court nominee will be required to face a Republican Senate, in order to be formally appointed to the Supreme Court. Senate Republicans have already warned the White House that they will not hold hearings for any Supreme Court nominee suggested by President Barack Obama. As soon as Republicans heard of the passing of Justice Antonin Scalia, they urged caution from the White House. Senate Republicans anticipate that the next President of the United States will be the party’s Presidential nominee. It is for this reason that they claim that the Supreme Court nomination should be made by the next President of the United States, and not by Barack Obama. In a televised announcement, following the death of Antonin Scalia, President Obama made it very clear that his intentions were to choose the Supreme Court nomination, despite warnings from Republicans. Senate Republicans responded by stating that they would block any of the President’s advancements.

President Obama will need to choose a Justice that will have a tendency to vote liberally in order for his expanded Deferred Action for Childhood Arrivals (DACA) program and new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program to survive. The expanded DACA and new DAPA program were introduced in November 2014 as part of President Obama’s executive actions on immigration. These programs have been temporarily suspended following a federal court order filed by Texas and other states. The Supreme Court is expected to hear oral arguments in the case, United States v. Texas, this April with a final ruling made by summer time.

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The new replacement rule affecting the Optional Practical Training (OPT) program for F-1 students with degrees in science, technology, engineering, or mathematics (STEM), has been posted and is now available for inspection in the federal register. The new replacement rule will replace the previous 2008 rule and become effective beginning May 10, 2016.

The new rule authorizes F-1 STEM students pursuing a 12-month Optional Practical Training program in the United States to extend their ‘OPT’ status for a 24-month period. The 24-month extension replaces the 17-month STEM OPT extension previously available to STEM students. The 17-month STEM OPT extension will continue to be effective until May 9, 2016. The new 24-month extension applies only to F-1 STEM OPT students attending accredited United States institutions, whose employers participate in the U.S. Citizenship and Immigration Services E-verify program. Only students in a valid period of post-completion OPT may file for a STEM OPT extension. The 24-month extension, coupled with the 12-month period given with initial post-completion OPT, will give STEM students a period of 36 total months of practical training in their field. Amendments that come with the new rule include additional oversight and improvement of the program requiring formal mentoring and training plans by employers, a new STEM definition and Classification of Instructional Program Categories, provisions on previously obtained STEM degrees, Accreditation and Employer Visits, and OPT compliance. In addition, new provisions have been introduced relating to wage and protections for STEM OPT students and safeguards for American workers as described below.

The ‘Cap Gap’ provision previously available to F-1 STEM OPT students in 2008 remains in place. This provision allows students with a timely filed H-1B petition requesting a change of status, the benefit of automatically extending their F-1 status and employment authorization until October 1 of the H-1B visa fiscal year for which the student has applied. The Cap-Gap was created with intention of avoiding any disruption students might experience in their careers and personal life as a result of temporary gaps in their status.

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The fate of the President’s executive actions on immigration now rests in the hands of eight justices on the Supreme Court, absent Justice Antonin Scalia. The Supreme Court will begin to hear oral arguments for the case, United States v. Texas on April 18th of this year, with a final ruling expected by summertime. Nearly a year and a half ago, President Obama announced a series of executive actions on immigration including the expanded Deferred Action of Childhood Arrivals (DACA) program, the new Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, and other measures to enhance border security, prioritize deportations, and modernize the immigration system. USCIS was expected to begin accepting applications for the expanded DACA and DAPA program on February 18th. The excitement surrounding the expanded DACA and DAPA program however was very short lived. A federal court order filed by Texas and other states on February 16th temporarily suspended these programs from going into effect.

Since then, the federal government and the State of Texas have been battling one another in court. The Fifth Circuit court determined that Texas and at least 25 other states had sufficient ‘standing’ to challenge both programs from being implemented. The state of Texas along with other states, argue that these programs are not only outside the purview of the President’s constitutional power, but that the States would be substantially burdened, should the programs go into effect. Texas states that as a result of these programs, the State would suffer increased health-care, law enforcement, and educational costs which would come out of the State budget and more importantly the pockets of Texas residents, who do not take kindly to these programs. Additionally, Texas claims that it would suffer additional financial burden in having to issue more drivers’ licenses to individuals qualifying for expanded DACA and DAPA, a state-subsidized benefit. If the Supreme Court decides in favor of the federal government, nearly 5 million immigrants residing in the United States unlawfully will be shielded from deportation, and States will be forced to bear the costs to accommodate their new ‘deferred’ status. Deferred status will grant individuals the right to legally obtain employment, obtain a social security number, a driver’s license, and an education, but it is not a path to citizenship. As it stands, it is unlikely that a new Supreme Court Justice will be appointed before oral arguments begin in this case, especially with mounting political pressure from Republicans seeking to block the President from making a nomination.

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As previously reported, the Department of Homeland Security was given a 90-day extension earlier this year, by the Federal District Court of Columbia to issue a new replacement rule for the STEM Optional Practical Training (OPT) program to continue. The STEM OPT program, a program that had been in place since 2008, was invalidated earlier this year following a court order which required DHS to publish a new replacement rule governing the program by February 12, 2016. In response to the court order, DHS requested an additional extension arguing that exceptional circumstances warranted additional time to review the overwhelming number of comments received during the comment period. The court granted the extension, giving DHS until May 10, 2016 to implement a final rule. On March 2nd, the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB) announced that review of the new OPT STEM replacement rule had been completed. DHS is expected to submit the final rule in the federal register within the next few weeks. The new rule will take precedence over the 2008 OPT STEM rule that had been in place previously. The final rule is not expected to be implemented until May 10, 2016. Once the final rule is published, we will have a better idea of where applicants will stand in relation to pending applications for employment authorization and receiving 7-month OPT extensions.

Please continue to follow our blog for more information. If you require legal advice please contact us for a consultation. 

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charlesFor this month’s staff spotlight, we invite you to learn more about Associate Attorney Charles S. Ward, Esq.

Attorney Ward has been a long time attorney at the Law Offices of Jacob J. Sapochnick. Charles received his Doctorate in Jurisprudence from Southern Methodist University graduating Cum Laude. Prior to attending law school, Mr. Ward worked for Delta Air Lines in the Reservations/Sales Department, where he focused on customer service issues and problems relating to traveling arrangements. He has been a California licensed attorney since 1997 and is also licensed to practice before the Federal Court system. His area of expertise includes Immigration and Family Law.

His Favorite Quote “Time and Tide Wait for No One” 

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Last week, the Senate held a hearing scrutinizing the temporary H-1B skilled worker program, the second hearing of its kind within just one year. At issue was the protection of American jobs and dissatisfaction with the program among conservatives in the Senate, who believe the program has caused job displacement at the expense of thousands of Americans. Beyond their own political convictions, Republican Senators eyeing the White House, have also scrutinized the H-1B visa program, in order to appease voters who, maintain a hard line stance on immigration.

During the hearing, the Senate Judiciary panel considered testimony questioning the integrity of the H-1B visa program. Many witnesses accused their employers of violating the conditions of the program, alleging that their employers sought to replace American workers with foreign workers by utilizing the H-1B visa program to pay those workers lower wages. This accusation is troublesome for various reasons. Firstly, it is well known that the H-1B visa program requires an employer to hire a foreign worker in a specialty occupation only when the employer cannot obtain the necessary skills and abilities to perform the specialty occupation within the American workforce. H-1B workers must possess distinguished merit and ability, and demonstrate their qualifications through the attainment of a bachelor’s degree or its equivalent, in the intended field of employment. Secondly, the H-1B visa program contains provisions which are specifically designed to protect similarly employed American workers from any adverse affects suffered from the employment of temporary foreign workers. Consequently, there are also provisions which aim to protect H-1B nonimmigrant workers from H-1B violations. One of those provisions includes the requirement that American employers pay temporary H-1B workers at least the ‘prevailing wage,’ the average wage paid to similarly employed workers (experience and qualifications) in a specific occupation in the area of intended employment. This would mean that any employer seeking to use the H-1B visa program for the purposes of obtaining ‘cheap foreign labor’ or to replace American workers would be violating the conditions of the H-1B visa program altogether.

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The U.S. Citizenship and Immigration Services (USCIS) has released an updated policy manual addressing the policies and procedures associated with adjustment of status to lawful permanent residence under section 245a of the Immigration and Nationality Act. The policies set forth in the newly updated policy manual are effective beginning February 25, 2016.

Adjustment of status is the process by which an eligible foreign national may adjust their status to lawful permanent resident, based on a qualifying family relationship or employer-employee relationship. Additionally, special categories of green card applicants exist covering self-petitioning Amerasian, Widow(ers) seeking lawful permanent residence under the Violence Against Women Act (VAWA), refugees, asylees, certain U visa holders, humanitarian visa holders, and eligible diversity visa program immigrants. In order to file an adjustment of status application from within the United States the Beneficiary must 1) be living in the United States lawfully and 2) have been inspected, lawfully admitted, or paroled into the United States, (except in cases of 245i).

Foreign nationals living in the United States, who qualify for adjustment of status to lawful permanent residence, may file their adjustment of status application with USCIS, without having to travel abroad to obtain an immigrant visa through a procedure known as consular processing. Foreign nationals residing abroad, who qualify for adjustment of status, must apply for an immigrant visa at a United States Embassy or Consulate abroad. Consular processing is different from adjustment of status from within the United States in various ways. Adjustment of status within the United States is a much faster process, however the main drawback is that applicants cannot travel internationally once their application has been filed with USCIS, until they are issued an advance parole document by USCIS authorizing such travel. In order to obtain an advance parole document, the green card applicant must file Form I-131 with USCIS. The advance parole document is typically issued within 90 days of filing of Form I-131. One of the main benefits of applying for an immigrant visa abroad through consular processing, is that the individual does not have any travel restrictions. It is for this reason that businesspersons and other individuals opt for consular processing instead of adjustment of status despite living in the United States.

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Presently, the Employment and Training Administration’s (ETA) Office of Foreign Labor Certification (OFLC) is experiencing significant delays in processing employer H-2B certification applications.  These delays are owed to various factors. The most important includes a mandatory 17-day certification pause that took place at the Chicago National Processing Center, for the purpose of implementing revisions of the H-2B prevailing wage and other standards required by law. Additionally, the OFLC announced that the amount of H-2B certification applications received has doubled in comparison to the previous year. Lastly, the electronic filing system iCERT, experienced significant technical problems, slowing the certification process down significantly for employers of H-2B workers. Unfortunately, these delays have diminished an employer’s ability to hire foreign workers during a time of need, and have had an adverse affect on small businesses who depend on these temporary and seasonal workers to perform work that cannot be readily filled by American workers.

To alleviate the certification backlogs, the Chicago National Processing Center has announced that employers may file an emergency request for expeditious handling of their applications under 20 CFR 655.17.

Expeditious Requests for Emergency Procedures under 20 CFR 655.17:

  • Based on the factors causing the backlogs, the OFLC has determined that employers are entitled to request expeditious emergency procedures for their currently pending applications for certification, under 20 CFR 655.17, on the basis of good and substantial cause. Emergency requests are warranted given that the backlogs caused by the delays in the application process are considered outside of the employers’ control, that employers have suffered unforeseen changes in market conditions because of the delays, amid a climate of uncertainty.

Employers with pending H-2B applications for certification must submit their expedite requests for emergency procedure, by email to the Chicago NPC at ER.H2B.Chicago@dol.gov beginning Monday February 22, 2016 (12:01 AM) through Friday April 1, 2016 (at 12:00 midnight). Requests may also be made by fax (312) 886-1688 or by US mail to:

ATTN: H-2B Request for Emergency Handling

U.S. Department of Labor ETA OFLC

Chicago NPC

11 West Quincy Court

Chicago, IL 60604-2105

The NPC may extend this emergency request period beyond April 1, however at this time no such extension has been announced.  Filing a new H-2B application is not necessary for an expedite request.

Employers filing for emergency treatment under 20 CFR 655.17 must request that the pending application for certification and proposed job order be “incorporated by reference” into the request made under 20 CFR 655.17, and state the withdrawal of the prior application. The procedure for submitting an expedite requested will be listed below.

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