Visa Lawyer Blog

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This week USCIS announced that over 236,000 H-1B petitions were received by the agency for fiscal year 2017 (including petitions for the general cap and advanced degree exemption), compared to last year’s 233,000. Following the close of the filing period, USCIS conducted a random computer-generated lottery on April 9, 2016 beginning the selection process for the 20,000 available visas for advanced degrees first. Unselected advanced degree petitions were then placed in the lottery to fill the 65,000 general cap. Foreign workers holding an advanced degree from the United States were thus given two chances at selection. Any petitions that were not selected by USCIS will be returned along with official rejection notices, and original filing fees. This year, our office filed 15 advanced degree petitions and 40 bachelor’s cap petitions for a total of 55 H-1B petitions. Of these petitions, 46 were filed with regular processing, and 15 were filed with premium processing. The majority of these petitions were filed with the California Service Center.

As of this afternoon, we have only received 4 selection emails from the California Service Center (CSC) for advanced degree petitions filed with premium processing, and only 1 selection email for a bachelor’s cap petition filed with premium processing. We do not expect to receive any ‘receipt notices’ for petitions filed with regular processing until late April through the month of May. At this point, it does not appear that USCIS has begun cashing filing fees for selected petitions. If the filing fees for your H-1B petition have not been cashed, this does not mean that your H-1B petition was not selected. It is too early to make this conclusion. Employers should monitor their bank accounts closely within the next 2-4 weeks.

This year, USCIS received approximately 3,000 more petitions compared to last year. As in previous years, the H-1B cap was reached within the first five business days of the H-1B filing period. This year the chances of selection ran at roughly 65% for foreign workers holding a U.S. advanced degree, and roughly 35% for foreign workers holding a bachelor’s degree. Last year, the chances of being selected was about 60% for advanced degree holders, and 30% for bachelor’s degree holders.

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The Supreme Court is expected to hear oral arguments for United States v. Texas, a lawsuit challenging the President’s executive actions on immigration, on Monday April 18th.  We have learned that attorneys representing the Republican led House of Representatives will be given 15 minutes to argue against Obama’s executive actions on immigration, included the expanded Deferred Action of Childhood Arrivals (DACA) program, and the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program. This move comes after the House of Representatives voted in favor of filing a brief before the Supreme Court challenging the executive actions on immigration. The court has also authorized a group of undocumented mothers of U.S. Citizen children to speak before the Supreme Court for 10 minutes. The Obama administration is currently at a disadvantage, given that only eight Supreme Court justices will ultimately be handing down one of the most important decisions of our generation come June. Obama had hoped that the House of Representatives would hold hearings in consideration of his Supreme Court pick, Chief Judge of the District of Columbia Court of Appeals, Merrick Garland, by the time oral arguments would begin. Unfortunately, this has not been the case. Republicans have refused to hold hearings in consideration of Judge Garland. It is likely that they will continue to delay hearings until the next President of the United States takes office next year.

Oral arguments on April 18th will be no more than 90 minutes long. The majority of the time will be divided by the Obama administration and attorneys representing Texas and 25 other states challenging the constitutionality of Obama’s executive actions on immigration. United States v. Texas is unique because it will finally put to rest the issue of whether or not the executive action on immigration is within the President’s constitutional powers. This case is also unique because it will be one of the few times that the Supreme Court has addressed the issue of illegal immigration and the rights of unlawful immigrants under the constitution.

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Today April 7, 2016 the U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B general bachelor’s cap has been reached for fiscal year 2017. In addition, USCIS received more than 20,000 petitions for the advanced degree exemption. Some time within the next week, USCIS will conduct a random computer-generated process, known as a ‘lottery,’ to select the petitions needed to fill the 65,000 bachelor’s cap. USCIS will first randomly select the petitions that will count toward the advanced degree exemption. Unselected advanced degree petitions will then be entered into the random lottery that will be conducted to fill the 65,000 bachelor’s cap. All unselected cap-subject petitions will be rejected and in turn CIS will return the H-1B packages containing filing fees and rejection notices. CIS has not yet provided any details concerning the date the lottery will be conducted. We suspect it will occur within the next week. In the meantime, cap exempt H-1B petitions will continue to be processed including H-1B worker extensions, petitions requesting a change to the terms of an H-1B workers’ employment, and petitions requesting concurrent work for an H-1B worker.

So, what’s next?

Petitions filed with premium processing

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The Employment and Training Administration’s (ETA)’s Office of Foreign Labor Certification (OFLC) will be hosting a public webinar on April 7, 2016 which will provide filing tips, discuss common errors associated with H-2B wage surveys, and provide assistance to employers interested in submission of H-2B wage surveys. The webinar will teach employers how to determine the prevailing wage (PWD) for positions to be occupied by H-2B non-agricultural workers. The OFLC hopes that the webinar will help employers, attorneys, and surveyors avoid common errors that typically appear on prevailing wage determination applications for the H-2B foreign worker visa program.

The webinar will:

  • Address common errors with documenting and displaying survey results and their solutions;
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Every year USCIS receives and adjudicates approximately 6 million applications from foreign nationals seeking to immigrate to the United States, and U.S. companies seeking to employ foreign workers temporarily.  According to the Department of Homeland Security’s Office of Immigration Statistics, “an estimated 13.1 million lawful permanent residents (LPRs) were living in the United States on January 1, 2013.” Of these permanent residents, more than half–8.8 million–were eligible to apply for naturalization. Additionally, the United States issues approximately 700,000 temporary non-immigrant work visas for a variety of temporary workers including: highly skilled foreign workers employed in specialty occupations in the STEM fields, fashion models, internationally acclaimed athletes and entertainers, aliens of extraordinary ability, religious workers, intra-company transferees, treaty traders/investors, foreign media workers, and agricultural and seasonal workers.

The reason the issuance of temporary worker visas is so low, when compared to the issuance of permanent resident cards, is because most of the temporary foreign worker visa programs are subject to a congressional cap, that limits the amount of non-immigrants that can be admitted per fiscal year. Additionally, certain temporary nonimmigrant worker visa classifications are granted for a specified period of time, although in most cases at least one extension may be granted. The cap applies primarily to the H nonimmigrant worker classifications, and non-minister religious workers. The H visa category accounts for approximately 54% of all visas issued for temporary workers. That is why the H visas are the most talked about visas among politicians when discussing immigration reform. The cap does not apply to treaty traders/investors, aliens of extraordinary ability, intra-company transferees, NAFTA professionals (Canada and Mexico), and foreign media workers. In comparison to developed countries, the United States admits a relatively low number of temporary foreign workers. Foreign workers are typically admitted either to fill labor shortages in the American job market, or because of their exceptional, or highly technical skills, as is the case for the H-1B visa classification.  Only highly skilled foreign nationals, aliens of extraordinary ability, aliens holding advanced degrees, high capital investors, nurses and physical therapists, doctors in undeserved area, and recipients of national interest waivers, have the unique opportunity to obtain permanent residence based on employment.

The mammoth task of meaningful immigration reform will not be easy and it will not happen overnight. The presidential nominees have failed to outline a clear strategy to overhaul our immigration system. None of the presidential candidates have addressed the most contentious areas of immigration policy that must be revised, in order to repair our broken immigration system.

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The Waitress
This morning, USCIS made the announcement that it has met the H-2B Cap for temporary nonagricultural workers, beginning employment during the first half of fiscal year 2016. A congressionally mandated cap, limits the number of H-2B visas that can be issued per fiscal year to 66,000. The first half of these visas are issued to workers who will begin employment in the first half of the fiscal year (from October 1 to March 31) and the other half are issued to workers who will begin employment in the second half of the fiscal year (from April 1 to September 30). The deadline to file an H-2B worker petition, with an employment start date beginning prior to April 1, 2016, was March 15, 2016. New H-2B petitions received by USCIS after the deadline, requesting an employment start date before April 1, 2016 will be rejected by USCIS. USCIS will continue to accept and process applications for temporary nonagricultural workers who are considered cap-exempt.

The following H-2B petitions are considered cap-exempt:

  • Petitions filed for “returning workers” that have already been counted towards a previous H-2B cap in fiscal years 2013, 2014, or 2015;
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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.

Profile: 

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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