Articles Posted in Highly Skilled Workers

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Today February 15, 2019, USCIS announced that the agency will resume premium processing services on Tuesday February 19, 2019, for all H-1B petitions filed on or before December 21, 2018.

Premium processing service remains suspended for H-1B petitions filed on or after December 22, 2018. USCIS will make an announcement at a later date when USCIS plans to resume premium processing for the remaining categories of H-1B petitions as agency workloads permit the agency to resume these services.

USCIS has provided the following guidance for petitioners who received a transfer notice for a pending H-1B petition, who are interested in upgrading their petition to premium processing:

If you received a transfer notice for a pending H-1B petition, and you are requesting premium processing service, you must submit the premium processing request to the service center now handling the petition.

You should also include a copy of the transfer notice with your premium processing request to avoid possible delays associated with the receipt of your premium processing request.

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In this post, we discuss the different options available for foreign nurses to work in the United States.

First, let’s discuss licensure requirements.

Registered Nurse License Requirements by Examination Educated Outside the U.S.

  1. Educational Evaluation of Transcripts:

All applicants who graduated from nursing schools outside the United States must have their transcripts evaluated in a course by course evaluation by one of the following Nursing Commission approved service providers:

  • Graduates of Foreign Trained Nursing Schools (CGFNS), www.cgfns.org,
  • Education Records Evaluation Service (ERES) www.eres.com,
  • International Education Research Foundation, Inc. (IERF) www.ierf.org

*Please review the RN educational requirements of the state in which you wish to be licensed.

  1. English Proficiency Exam

An English Proficiency test is required for all LPN and RN license applicants who received their nursing education out of the United States except for Canada (Quebec requires the English Proficiency test), United Kingdom, Ireland, Australia, New Zealand, American Samoa, Guam, Northern Mariana Islands and Virgin Islands.

You must take and pass either the Test of English as a Foreign Language (TOEFL) www.toefl.com or International English Language Testing System (IELTS, academic version) www.ielts.org. This exam is required regardless of whether the program was taught in English.

  1. NCLEX:

Foreign nurses must take and pass the national licensure examination known as the NCLEX. Once the Nursing Commission approves your application you will need to register with Peasrsonvue at http://home.pearsonvue.com/ to take the national exam (NCLEX). Do not register for the NCLEX before the commission has approved your application. Once you register, our office will make you eligible on the Pearsonvue website. Pearsonvue will then email you the “authorization to test” (ATT). At that point you can schedule to take the NCLEX exam.

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Today, November 30, 2018, the United States Department of Homeland Security announced a notice of proposed rulemaking (NPRM) that seeks to impose a registration requirement for H-1B petitioners seeking to file an H-1B petition on behalf of beneficiaries under the regular cap and advanced degree exemption.  An unpublished version of the proposed rule has been made available in the federal register.

Under the proposed rule H-1B Petitioners would be required to electronically register with USCIS during the designated registration period, in order to file a H-1B cap-subject petition on behalf of a foreign worker. In addition, DHS is proposing to change the order in which H-1B cap-subject registrations would be selected to meet the annual H-1B regular cap and advanced degree exemption. This change would increase the odds of selection for H-1B beneficiaries who have earned a U.S. master’s degree or higher from a U.S. institution.

Under the proposed rule, all petitioners seeking to file an H-1B cap-subject petition on behalf of a foreign worker would be required to submit to a mandatory registration process. Only those whose registrations are selected, would be eligible to file an H-1B cap-subject petition during the associated filing period.

The mandatory Internet-based registration process for petitioners seeking to file H-1B petitions for beneficiaries to be counted under the regular cap or advanced degree exemption, would begin before April 1st, in advance of the period during which H-1B petitions can be filed for a new fiscal year. An H-1B cap-subject petition would not be considered properly filed unless the petition is based on a valid registration selection for that fiscal year.

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If you are an F-1 student with an H-1B petition that remains pending with the United States Citizenship and Immigration Services (USCIS), and your “cap-gap” employment authorization is only valid through September 30, 2018, you may risk accruing unlawful presence if you continue to work on or after October 1, 2018.

What is a “cap-gap”

You are in “cap-gap” status if you are an F-1 student who is the beneficiary of a timely filed H-1B cap subject petition with USCIS, and you are seeking a change of status from F-1 student to H-1B on October 1st, October 1st being the requested start date of H-1B employment.

A “cap-gap” is used to fill the gap between the end of a student’s F-1 status and the beginning of potential H-1B status. To avoid any gap in status, USCIS extends the validity period of both the student’s F-1 status and current employment authorization, but only until September 30.

The “cap-gap” period begins when an F-1 student’s status and employment authorization expires.

Temporary Suspension of Premium Processing

USCIS has temporarily suspended premium processing services for cap-subject petitions to prioritize the adjudication of cap-gap petitions filed by students, however USCIS does not guarantee that it will adjudicate these petitions in a timely manner by October 1st. Students with a cap-gap H-1B petition that remains pending on or after October 1st are no longer authorized to continue working under the cap-gap regulations.

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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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Return of Unselected H-1B Petitions

H-1B cap-subject petitions that were not selected in the fiscal year 2019 visa lottery have been returned to unlucky applicants. If you filed a petition between April 2 and April 6 and you did not receive a receipt notice for your application, you will be receiving your returned petitions in the mail by August 13. If you do not receive a returned petition by this date, you should contact USCIS.

Updated NTA Policy

On June 28th USCIS issued a policy memorandum providing updated guidance for the referral of cases and issuances of notices to appear (NTAs) in cases involving inadmissible and deportable aliens. The policy memorandum outlines the Department of Homeland Security’s priorities for removal as well as guidelines for referring cases and issuing NTAs.

Under the updated policy the following classes of aliens are prioritized for removal, aliens who are removable based on criminal or security grounds, fraud or misrepresentation, and aliens subject to expedited removal,” as well as alienswho, regardless of the basis for removal:

(a) Have been convicted of any criminal offense;

(b) Have been charged with any criminal offense that has not been resolved;

(c) Have committed acts that constitute a chargeable criminal offense;

(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;

(e) Have abused any program related to receipt of public benefits;

(f) Are subject to a final order of removal, but have not departed; or

(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security”

Today, USCIS announced that it is postponing implementation of this policy guidance because operational guidance has not yet been provided to immigration officers. The policy memorandum gave USCIS 30 days to implement proper protocols for NTA issuance consistent with the updated policy memorandum. We will notify our readers once we receive information about when the NTA policy will be implemented.

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A new report by the National Foundation for American Policy (NFAP) released this month indicates that the number of H-1B denials and Requests for Evidence (RFEs) increased significantly during the fourth quarter of 2017 which began on July 1, 2017, following the implementation of Presidential Executive Order “Buy American, Hire American” in April 2017. Among other things, the Executive Order targeted the H-1B visa program calling on the Attorney General and Secretary of Homeland Security to suggest reforms to the H-1B program and “ensure that H-1B visas are awarded the most-skilled or highest-paid petition beneficiaries.” Data obtained from the United States Citizenship and Immigration Services (USCIS) indicates that “the proportion of H-1B petitions denied for foreign-born professionals” applying for H-1B visas, “increased by 41% from the 3rd to the 4th quarter of FY 2017, rising from a denial rate of 15.9% in the 3rd quarter to 22.4% in the 4th quarter.”

The NFAP also discovered that the number of requests for evidence issued during the 4th quarter of fiscal year 2017 “almost equaled the total number issued by USCIS adjudicators for the first three quarters of FY 2017 combined (63,184 vs. 63,599).”

The number of requests for evidence “more than doubled between the 3rd and 4th quarter of FY 2017, rising from 28,711 to 63,184.”

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Indian Nationals

According to the report, “USCIS adjudicators were much more likely to issue a Request for Evidence for applications for Indians than for people from other countries.” For example, “In the 4th quarter of FY 2017, 72% of H-1B cases for Indians received a Request for Evidence, compared to 61% for all other countries.” Data over the years confirms that applications filed by Indian nationals result in higher rates of denials and requests for evidence, not just for H-1B applications but also for L-1 visa applications.

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H-1B Update: Return of Unselected Petitions

USCIS has now completed data entry for all fiscal year 2019 H-1B cap-subject petitions that were selected in this year’s H-1B visa lottery. USCIS will begin the lengthy process of returning thousands of H-1B cap-petitions that were not selected in the lottery. Although USCIS has not provided a time frame on when they will begin returning unselected petitions, in previous years, our office began receiving unselected petitions in mid-June. All unselected petitions will include an official hard copy rejection notice from USCIS.

Updated Policy Guidance regarding Adjustment of Status interviews.

USCIS has revised its policy for adjustment of status interviews. All adjustment of status applicants must be interviewed by an officer unless USCIS determines that the interview is unnecessary. The decision to waive the adjustment of status interview is determined on a case-by-case basis.

In the following circumstances the adjustment of status interview may be waived:

  1. General Waiver Categories

“USCIS officers may determine, on a case-by case-basis, that it is unnecessary to interview certain adjustment of status applicants. The following list includes, but is not limited to, categories of cases where officers may decide to waive an interview: 

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What are some alternatives to the H-1B visa?

So, you’ve applied for the H-1B visa, and by now you are well aware that the cap has been reached. You may be wondering what you will do if you are not selected in the lottery. Have no fear, we have you covered on your Plan B.

In this post, we breakdown the alternatives to the H-1B visa that allow foreign nationals to live and work in the United States.

1. The O-1 “Extraordinary Ability” Visa:

This visa type is for aliens of extraordinary ability in the sciences, education, business, athletics, motion picture, television, or arts industries who have received national and/or international acclaim in their field. An alien on an O-1 visa may live and work in the United States for a period of up to three years.

In order to be eligible for this visa type you must demonstrate that you are an alien of extraordinary ability in your field. Applicants must hold an advanced degree (at least a master’s) to demonstrate a high level of expertise in their field, and have received international or national acclaim in their fields as evidenced by awards and other international or national recognitions received. Individuals who are leading experts in their fields, and have written extensively in their fields, receiving notoriety for their publications are also great candidates for the O-1 visa. Membership in prestigious professional associations which require outstanding achievements from members are extremely helpful when applying for the H-1B visa, as well as evidence of scientific, scholarly, or business-related contributions that are considered of major significance in the field.

2.TN Visa for Mexican and Canadian Nationals

Under the North American Free Trade Agreement, Canadian and Mexican nationals may apply for a TN visa to live and work in the United States. To be eligible the TN visa applicant must work in a profession approved under the NAFTA program for a U.S. employer. Dependent spouses and unmarried children under the age of 21 can live in the United States under a derivative TD visa.

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Great News! Today, USCIS announced that the computer-generated selection process has been completed to select the H-1B petitions necessary to fulfill both the general cap and master’s cap for this H-1B season. The randomized lottery was completed yesterday April 11, 2018.

This H-1B season, USCIS received 190,098 H-1B petitions for Fiscal Year 2019 during the filing period that began on April 2nd. During Fiscal Year 2018, USCIS received 199,000 H-1B petitions during the filing period and completed the randomized lottery on the same day (April 11th).

USCIS will now begin the process of rejecting and returning all petitions that were not selected during the randomized lottery. As in previous years, USCIS completed the selection process for the master’s cap first, and all unselected master’s cap petitions were then placed in the random selection process for the general cap, giving master’s cap applicants a greater chance of being selected. In previous years, our office began to receive rejection notices for applicants that were not selected from mid to late June.