Visa Lawyer Blog

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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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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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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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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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“He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp” -Ruth Bader Ginsburg

When news broke of the passing of the longest serving Justice on the Supreme Court, Antonin Scalia, a cloud of uncertainty lifted above the heads of Republican frontrunners vying for the Republican nomination for President of the United States. Indeed, the topic of conversation during the February 13th Republican Presidential Debate, which occurred on the day of Justice Scalia’s passing, focused on whether or not the current President should nominate the next Supreme Court Justice. Justice Antonin Scalia, nominated to the Supreme Court by President Ronald Reagan in 1986, was the most outspoken conservative on the bench, and not very well liked by liberal politicians and intellectuals, primarily due to the philosophy behind his jurisprudence. Scalia’s jurisprudence during his 29 years on the bench belonged to the Originalist school of thought. An Originalist’s interpretation of the Constitution denies the contention that the Constitution should be interpreted by the Court as a living, breathing document, a view that is typically shared by liberal Constructivist Justices like Ruth Bader Ginsburg. Instead, Originalists believe that the Constitution should be interpreted according to the original intent or meaning shared by the founders as it was written. This would require an Originalist to adhere to the spirit of the law as it was intended by the founders of our country, as well as an understanding of what was meant when the Constitution was originally drafted.

During his time on the bench, Scalia tenaciously criticized the liberal Constructivist view, calling this interpretation of the Constitution, judicial activism, which he viewed as inappropriate. In his view the Supreme Court must be insulated and not be swayed by the social concerns of the public. Throughout his trajectory, Scalia has gone down in history for handing down the most controversial dissents in the history of the Supreme Court, avidly supporting the right to bear arms, challenging the right to abortion, affirmative action, gay rights, and was ultimately instrumental in securing the Presidential nomination of George W. Bush in the 2000 case Bush V. Gore. Up until his untimely death, the Supreme Court held a conservative majority. The conservatives on the bench include Chief Justice, John G. Roberts Jr. nominated by President George W. Bush in 2005, Justice Clarence Thomas nominated by President George W. Bush in 1991, Justice Samuel Anthony Alito Jr nominated by President George W. Bush in 2006, Justice Anthony Kennedy, a moderate conservative swing vote nominated by President Ronald Reagan in 1988, and up until recently Antonin Scalia nominated by Ronald Reagan in 1986. Together, these conservative Justices established a 5-4 majority against liberal Justices: Ruth Bader Ginsburg, Stephen G. Breyer, and recently appointed Justices Elena Kagan and Sonia Sotomayor. Justice Antonin Scalia’s sudden death has now upset the conservative majority, creating a balance of power between conservative and liberal minds on the bench. With the death of Scalia, the bench is now evenly split ideologically 4-4 with a vacant seat ready to be filled by a liberal Justice, thereby creating a Liberal majority. This of course will not be easy, since the Senate is dominated by the Republican party, and the Senate will be in charge of vetting the President’s nominee.

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