Now is the time for employers to prepare for a successful 2020 H-1B filing season. You’re probably wondering how best to go about this, given the complexities that arose relative to specialty occupations, degrees and wage issues last year. Please note that USCIS has complete discretion whether to deny a case outright or issue a Request for Evidence (RFE). We cannot stress strongly enough the importance of planning and developing strong documentation in support of your case. In so doing, we recommend that you carefully consider and document the below points, as follows:

• If employee has a US master’s degree from a public or non-profit nationally accredited university, apply under the Master’s cap. You can do so whether or not the offered position requires a master’s or bachelor’s degree. The degree, transcript and evidence that the University is public, non-profit and accredited must now be submitted to the Department of Labor with the Labor Condition Application
• It is critical to show the nexus between the offered position’s job duties and the degree requirement
• Select the O*NET code and OFLC Wage level carefully so that the actual wage is reflective of a specialty occupation requiring a degreed professional. Be cautious about Level 1 entry-level wages. We advise paying a higher wage, or be prepared to explain why the position is both entry level and qualifies as a specialty occupation. You may wish to obtain an expert opinion for the latter
• Consider whether the prospective employee will consular process outside the US or do they qualify for a change of status? It’s best to consular processing to preserve OPT if valid beyond October 1st, and to file a change of status case if OPT expires prior to October 1st to protect work authorization under the “cap gap” policy (travel should be avoided in this scenario during case processing)
• To establish that a job qualifies as a specialty occupation under USCIS regulations, one or more of the following criteria must be met with supporting documentation: (1) A bachelor’s or higher degree or its equivalent that is normally the minimum entry requirement for the position; the required degree must be related to the position to be filled.; or (2) The degree requirement is common to the industry, or in the alternative, the position is so complex or unique that it can be performed only by an individual with a degree; or (3) The employer normally requires a degree or its equivalent for the position; or (4) The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

We are uncertain at this time if USCIS will implement a designated H-1B Cap Pre-Registration lottery process for employers in time for this filing season. USCIS stated that this would reverse the order by which the agency selects H-1B petitions under the cap and the advanced degree exemption with the end goal being to increase the number of beneficiaries with master’s or higher degrees from US universities. We will continue to provide updates on this as more information is released.

We would suggest that another strategy for securing the talent that you need in your organization is to consider processing a PERM Labor Certification case with the Department of Labor that is not subject to lottery selection. This can be done for a prospective employee inside or outside the USA or for your F-1 OPT employee as a backup to your H-1B filing, creating a direct path to permanent residency.

Our office is available to assist you with your case filing strategy and case submissions. We are already in planning mode. We can be contacted at info@immigrationcompliancegroup.com

US permanent residency via PERM Labor Certification is one of the few practice areas in business-related Immigration at this time that has not come under attack by the Trump administration.

Our firm has been through all three of the Department of Labor programs: The traditional method, Reduction in Recruitment (RIR) and PERM. Our depth of expertise is extensive as is shown by our perfect record of approvals over the years. The three parties involved (the employee, the employer and the attorney) all have a distinct role to play in this labor-intensive, highly detailed process that sets the strategy and the roadmap to obtaining a green-card.

The long-awaited final rule to modernize and improve several aspects of employment-based nonimmigrant and immigrant visa programs, in order to retain EB-1, EB-2 and EB-3 immigrant workers and high-skilled nonimmigrant workers, is moving forward and has made it through the OMB review process.  It was published in the Federal Register on November 18, 2016 and will be effective in 60 days.   USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017, just before President Obama leaves office.

Among other things, DHS is amending its regulations to:

• Clarifies and improves longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.

• Better enables U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.   This means that you can use the previous employer’s I-140 petition to extend your H-1B with a new employer even if it is withdrawn (as long as it was withdrawn more than 180 days after approval), or in the event of the termination of the employer’s business.  So, there is no I-140 portability; you will still need a new labor certification and I-140 petition to file your adjustment of status application.

• The final rule provides two grace periods of up to 10 days, consistent with those already available to individuals in 13 some nonimmigrant classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications. The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, allowing nonimmigrants in the above classifications a reasonable amount of time to enter the US and prepare to begin employment. The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time to depart the US or take other actions to extend, change, or maintain lawful status.

• Establishes a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period provided their authorized stay is valid for at least 60 days after such cessation. If not, the grace period will end on the date the authorized date is set to expire. This will obviously enable own to more readily pursue new employment and an extension of their nonimmigrant status.

• The Final rule allows allows certain high-skilled individuals in the United States  to apply for work authorization, given:

1. They are the principal beneficiaries of an approved Form I-140 petition,
2. An immigrant visa is not authorized for issuance for their priority date, and
3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion. Such employment authorization may only be renewed in limited circumstances and only in one year increments.

• Automatically extends the employment authorization in the same category and validity of Employment Authorization Documents for up to 180 days from the date of the prior EAD’s expiry (EADs or Form I-766’s) or until djudication of the EAD nrenewal application, for certain individuals who apply on time to renew their EADs.  The Form I-9 rule is also updated to permit an I-797 receipt notice to be accepted as a permissible I-9 document, in conjunction with the expired EAD, to re-verify the foreign national’s work authorization. This additional 180-day period will not apply to those categories that first require the approval of an underlying application before the EAD renewal can be adjudicated.

• Eliminates the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

• Clarifies various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap program.

For more information, please refer here for the Final Rule.  If you have any questions, please contact our office.  We will continue to keep you posted on the implementation of these new policies.

The OSC publishes responses to  TAL Letters (Technical Assistance Letters) that they receive from attorneys, employers and other stakeholders.  USCIS identifies this circumstance in the I-9 Employer Handbook as an employee who comes forward and indicates that their identity is now different than previously represented (Hmm…)  and now wants to “regularize” their employment record.  Or, what do you do if you become aware, for instance, that a social security number associated with a particular employee was not legally assigned?

Discussion starts on page 2.

OSC’s TAL implies that if an employer has not consistently-followed a policy of terminating individuals for providing false information during the hiring process, it couldn’t use that policy to justify a termination in this particular scenario.  Even if the employer did consistently terminate individuals who were dishonest during the hiring process, OSC implied that this was not necessarily a slam dunk argument either. It is important to note that OSC did not commit itself by concluding that such a termination under the circumstances would not constitute discrimination or be deemed to be a valid legitimate non-discriminatory reason for termination. It simply stated it would depend on the facts and circumstances.  Before you go down this road, remember –the USCIS Handbook for Employers provides that “Where an employee has worked for you using a false identity but is currently work authorized, the I-9 rules do not require termination of employment.”

There’s also guidance regarding this for DACA employees that you might wish to review.  For more on I-9 compliance please refer to our Employer Resource Center

USCIS received 233,000 new H-1B petitions last year against a quota of 85,000, and this year is expected to be even higher for FY 2017. Approximately one-half of the submitted petitions were not accepted for processing. As the economy has grown and and gained momentum, employers have been planning for months and making a list of candidates for whom they want to file H-1Bs.  The demand is expected to be huge this filing season, and the quota will be met in lightening speed. There are 5 business days to submit your cases, from April 1 to April 7, 2016 to access the opportunity of securing an extremely limited number of new H-1B slots.

So, planning is of the utmost importance.  Here are some important tips to get ready for H-B case filing on April 1^st:

• Assess your employment needs. Start to assess the number of H-1B petitions that your firm wishes to file. Coordinate with your immigration provider and assess legal and government filing fees.
• Do you need to obtain Credential Evaluations for your foreign educated applicants? Get this done early as the evaluation services will be swamped. Assess the relationship between the applicant’s degree and the position being offered. Does the degree equate to a 4-year US degree? If not, can the applicant produce employment verification letters so that previous work experience can be used to develop an evaluation that creates a nexus between their education and the offered position and to meet the degree requirement? It takes time to obtain these letters; therefore, close analysis of degree issues is of the utmost importance. These issues are being scrutinized more closely by USCIS each year. Lastly, if you wish to sponsor the applicant for their green-card in the future, make sure that the strategy you adopt for the H-1B can take you into a successful green-card process.
• Get the Labor Condition Application (LCA) early. It can take up to 7 business days to receive LCA’s from the Department of Labor (and longer as the clock ticks toward April 1^st). Once you have identified your hiring needs and obtained the necessary documentation to start the H-1B process, file the Labor Condition Application to avoid delays. Even though early filing means a shorter validity period for the H-1B petition, it is still advisable to have a timely filed and certified Labor Condition Application in hand for a complete case filing with USCIS.
• Start gathering necessary H-1B documentation right now. Develop your detailed job descriptions (not a list of requirements, but actual daily job duties and responsibilities).  Work with your legal team and the applicants that you wish to sponsor. Obtain degrees, transcripts, credential evaluations, employment letters, status documentation. These are required documents and do take time to analyze and assemble and, if missing, create delays and RFE’s.
• Be prepared for last minute changes in procedures and requirements. Last-minute changes in USCIS and Labor Department processes often arise with each new H-1B filing season.  Our office, of course, will keep you apprised as we continue to monitor any changes in procedure or requirements.

We are already accepting H-1B cases for processing and welcome your business.  Contact info@immigrationcompliancegroup.com or call 562 612.3996.

USCIS is seeking public comments on a proposed rule that would modernize and improve certain important aspects of employment-based nonimmigrant and immigrant visa programs. USCIS is also proposing regulatory amendments to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs).

Read the notice of proposed rulemaking published in the Federal Register on December 31, 2015: Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers. The public has until February 29, 2016 to comment.

Among other things, the DHS proposals to amend its regulations entail the following:

…  To clarify and improve longstanding agency policies and procedures implementing sections of the American Competitiveness in the Twenty-First Century Act (AC21) and the American Competitiveness and Workforce Improvement Act (ACWIA) related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.
…  To better enable U.S. employers to employ and retain certain foreign workers who are beneficiaries of approved employment based immigrant visa petitions (I-140 petitions) while also providing stability and job flexibility to these workers. The proposed rule will increase the ability of such workers to further their careers by accepting promotions, making position changes with current employers, changing employers, and pursuing other employment opportunities.
…  To improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval
…  To clarify when individuals may keep their priority date to use when applying for adjustment of status to lawful permanent residence, including when USCIS has revoked the approval of their approved I 140 petitions because the employer withdrew the petition or because the employer’s business shut down.
…  To allow certain high-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for one year of unrestricted employment authorization if they:

1.         Are the beneficiaries of an approved I-140 petition,

2.         Remain unable to adjust status due to visa unavailability, and

3.         Can demonstrate that compelling circumstances exist which justify issuing an employment authorization document.

Such employment authorization may only be renewed in limited circumstances.

…  To clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, extensions of status, determining cap exemptions and counting workers under the H-1B visa cap, H-1B portability, licensure requirements, clarification concerning which H-1B nonimmigrants are exempt from the statutory cap to ensure that those who are contributing to US research and the education of Americans may remain in the USA; and protections for whistleblowers.
…  To establish a one-time grace period during an authorized validity period of up to 60 days for certain high-skilled nonimmigrant workers whenever their employment ends so that they may more readily pursue new employment and an extension of their nonimmigrant status.

These proposed changes do not take effect with the publication of the notice of proposed rulemaking. Instead, they would take effect on the date indicated in the final rule when the final rule is published in the Federal Register.  Here is the proposed rule.  To submit comments, follow the instructions.  You may submit comments, identified by DHS Docket No. USCIS-2015-0008, by one of the following methods:

Federal eRulemaking Portal: You may submit comments to USCIS by visiting http://www.regulations.gov. Follow the instructions for submitting comments.  By email: You may submit comments directly to USCIS by emailing them to: USCISFRComment@dhs.gov. Please include DHS Docket No. USCIS-2015-0008 in the subject line of the message.

The Department of Labor:  Modernizing the Permanent Labor Certification Program (PERM)

DOL is engaging in rule making that will consider options to modernize the PERM program to be more compatible to changes in the US workforce, to further align the program design with the objectives of the US immigration system and the needs of workers and employers, and to enhance the integrity of the labor certification process.  This is not expected to be proposed until April 2016.

With the rash of RFE’s increasing year by year, this article is extremely informative and useful.

The important take away…..Work with evaluators that analyze USCIS policy and trends and that understand the education that is required for the type of visa being applied for.  Oftentimes there is a rush to secure an evaluation before nailing down the job title and job description with the client; this is a mistake.

So, whose fault is it REALLY and why does it matter whose fault it is anyway?

Sometimes it is the attorney or evaluators fault, but sometimes it is CIS’s fault.

Sometimes it is the fault of the evaluation but not the evaluator.

Sometimes it is CIS’s fault.

Sometimes it is the candidate’s fault.

Sometimes it is no one’s fault at all.

For more, refer here

We thank Sheila Danzig, TheDegreePeople.com, for this excellent article.

It’s almost that time of year again for H-1B filing season FY 2016 (commencing April 1, 2015), and  it’s not too early for employers to be discussing hiring needs with their management team and assessing where in the organization they wish to sponsor H-1B professionals, and identifying  potential candidates that they may want to sponsor for H-1B status. This could include, for example, recent graduates employed pursuant to F-1 Optional Practical Training, foreign nationals in TN status that the company may wish to sponsor for permanent residence, and candidates in L-1 status working for other employers or in some other non-immigrant classification who would need to change their status to H-1B in order to extend their stay and accept new employment.

The H-1B job offer and the job description must be for a specialty occupation that requires a minimum of a bachelor’s degree or its foreign equivalent.

What is the definition of a specialty occupation? A specialty occupation requires the theoretical and practical application of a body of specialized knowledge along with at least a bachelor’s degree or its US equivalent.  For example, architecture, engineering, IT, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, and the arts are considered specialty occupations.

Small to medium-size companies are frequently asked to justify why the position  requires someone with a bachelor’s degree and to explain, through various types of evidence including organizational charts, examples of work being produced, the education of previous employees in the position, etc., why their business is more unique than other similar businesses in their industry that they would require a candidate with a bachelor’s degree in a particular position.

Bachelor’s Degree equivalency can be attained through a single-source foreign degree that meets US standards, a combination of a degree and work experience, or a work experience alone equivalency that meets the “3 for 1” rule; namely, that 3 years of work experience is equivalent to 1 year of university level education (this requires an expert credential evaluation by a service or university that is authorized to evaluate work experience for degree equivalency).

Note: Bear in mind that if you have a skilled immigration professional that has a strategy in place for their green-card sponsorship (permanent residency), it is essential that the degree and its equivalency be carefully reviewed so that it will be compatible with the classification under which they will file their labor certification, the first step in the green-card process.

USCIS now requires very detailed job descriptions for H-1B visa petitions that contain the position summary, duties and responsibilities, as well as the percentage allocation spent on each job duty. It is hard to imagine that a job description with a 15-bullet point list of duties and a full page in length is insufficient, but when you work with a skilled immigration practitioner, this can be successfully argued against the O*NET occupational classification system and the Occupational Outlook Handbook, which is the primary source of job information for USCIS and the Department of Labor.

In summary: Employers need to be prepared with complete job descriptions for their H-1B prospective employees and document the need for a degreed professional thoroughly in their casework.

Discuss your H-1B requirements as well as any other business immigration matters by contacting us at info@immigrationcompliancegroup.com, or call 562 612.3996.

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

• Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.  Refer to AC 21 12/27/2005 Aytes Memo for details.

Proposal to Enhance Opportunities for Highly-Skilled Workers: H-1B1 (Chile and Singapore) and E-3

Specifically, the change to the regulation would:

• Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer.

• Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. Under current regulations, employers of workers in E-3, H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

• Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence.

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.  We will keep you posted on next steps when this actually becomes effective.

The DHS Press Release

If you Previously had an H-1B for Less than 6 Years

Pursuant to § 212(g)7) of the The Act, if you had an H-1B in the past and were in the USA for less than 6 years, you may be eligible to recoup the time that is remaining on the 6-year maximum period of stay to accept employment with a new employer – without being counted against the cap.  An example of this would be someone who works for 3 years in H-1B classification and decides to go back to school on an F-1 student visa.  This individual would be eligible to apply for an H-1B for the remaining 3 years at any time of the year.

If you are abroad for at least one year, you have the choice to either apply for a “new” cap H-1B  for a full 6-year period, or take advantage of the remainder option if you previously had an H-1B.

H-1B 7^th Year Extensions – How This Works

If you are the beneficiary of a labor certification or an I-140 petition that was filed 1 year prior to your 6^th year in H-1B status, pursuant to §106 of AC21, you are permitted to file for a 7^th year extension.  You are also permitted, according to §104(c) of AC21, to apply for a 3-year extension of your H-1B when you have an approved I-140 petition and are unable to move forward with filing your permanent residency case due to employment-based immigrant visa country limits (referred to as retrogression).

If you are in the US and out of status due to a layoff, or are abroad, you are entitled to a 7^th year extension of your H-1B if your labor certification or I-140 petition was filed before your 6^th year in H-1B status with either the sponsoring employer, or with a new employer.  You will more than likely be required to consular process your case in these scenarios.

It is recommended that you seek the advice of a skilled immigration professional with the above cases as they are complex in nature.

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