Tag: H1-B

USCIS Temporarily Suspends Premium Processing for H-1B Petition

USCIS H1-B visa premium processingOn March 3, 2017, USCIS announced a temporary suspension of premium processing impacting all H-1B petitions received by USCIS beginning April 3, 2017.  The suspension will be in place for up to six months, supposedly to permit the agency to prioritize pending H-1B cases that are outside of their normal processing time and to reduce the backlog of pending H-1B cases filed in 2016.

The following case types will be impacted:

  • All H-1B petitions filed under the fiscal year 2018 H-1B cap;

  • All H-1B cap-exempt petitions; and

  • All non-cap H-1B extensions, all change of employer H-1B petitions, and all amended H-1B petitions.

The USCIS premium processing suspension does not impact a petitioner or beneficiary’s ability to request “expedited handling” of any kind of H-1B petition.  Such requests will be granted on a case-by-case discretionary basis, if the petitioner and/or beneficiary can establish severe financial loss to company or person, an emergency situation, a humanitarian situation, or governmental interest, amongst other criteria.

Please note that the premium processing program suspension applies only to H-1B filings.  Employers may continue to use the premium processing service for, among others, L-1, O-1, TN, and I-140 immigrant petition filings.

ARTICLE BY Katie P. Jacob & Gregory P. Adams of Dinsmore & Shohl LLP

© 2017 Dinsmore & Shohl LLP. All rights reserved.

A Preview of Business Immigration in 2016: H-1B

From proposals to slash the H-1B cap to overhauling the EB-5 investor program, 2016 is already proving to be an interesting year for business immigration. In a series of posts, we will provide an overview of the cases, legislation, and regulations to look out for in the new year. In our first post we will discuss the H-1B visa and proposed reforms. 

A new wave of bills on Capitol Hill may lead to greater scrutiny of the H-1B program for high-skilled temporary workers in 2016. Since November, senators on both sides of the aisle have introduced legislation related to the visa category. One comes from Republican presidential candidate and Senator Ted Cruz (R-TX), who hopes to reform the program by creating a “layoff cool-off period” under which employers could not hire any H-1B workers within two years of layoffs, furloughs, or employee strikes. The “American Jobs First Act of 2015” would also end the Optional Practical Training program, which allows certain foreign students or graduates to temporarily work in the United States. Bill co-sponsor Senator Jeff Sessions, (R-AL), said the H-1B program has become a “backdoor method for replacing American workers.”

Senator Sessions, known as an immigration hardliner, also co-sponsored the “Protecting American Jobs Act” with Senator Bill Nelson (D-FL) to reduce the annual cap on H-1B visas from 65,000 to 50,000. If more than 50,000 petitions are filed within a fiscal year, the bill would require DHS to prioritize workers with the highest wages. “This bill directly targets outsourcing companies that rely on lower-wage foreign workers to replace equally qualified U.S. workers,” stated Senator Nelson. His legislation directly opposes fellow Florida Senator and Republican presidential candidate Marco Rubio’s earlier 2015 bill that would triple the H-1B cap to between 115,000 and 195,000 visas.

Another bipartisan effort comes from Senate Judiciary Committee Chairman Chuck Grassley (R-IA) and Senate Minority Whip Dick Durbin (D-IL), who recently introduced legislation that would greatly reform and increase enforcement of the H-1B program. Their bill would prohibit companies from hiring H-1B workers if they have more than 50 employees and over half are H-1B and L-1 visa holders.

Whether any of these bills will actually pass remains the biggest question for H-1Bs in 2016, particularly as certain bills—and legislators—oppose one another, both in the Senate and in presidential campaigns.

Article By Susan J. Cohen of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

Parnia Zahedi assisted with this post.

©1994-2016 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

USCIS Strictly Enforcing the Statutory Provisions in Adjudicating H-1B Petitions Filed Under the 20,000 Advanced Degree Cap

GT Law

 

A separate cap of 20,000 H-1B’s is allotted for those foreign nationals who were awarded advanced degrees in the U.S. However, not all degrees qualify under this provision. Recently, USCIS has been enforcing this provision very strictly, issuing requests for evidence, denials, and even initiating revocation proceedings for previously approved petitions under the advanced degree cap.

Immigration and Nationality Act (INA) Section 214(g)(5)(c) provides that those foreign nationals who earned a master’s or higher degree from a United States institution of higher education can file under the 20,000 cap, which is separate from the 65,000 cap reserved for all other H-1B petitions, with the exception of colleges, universities, and qualifying affiliated institutions who are exempt from the cap altogether. This section further states that only degrees awarded by those institutions which fit the definition set forth in section 101(a) of the Higher Education Act of 1965 (20 U.S.C. 1001(a)). This section of the law, in turn, defines a U.S. institution of higher education as a public or other non-profit institution accredited by a “nationally recognized accrediting agency or association” or “granted a pre-accreditation status”. Degrees received from institutions which do not fit this definition, though located in the U.S. and award advanced degrees, do not qualify an H-1B petition to be filed under the 20,000 cap.

In the past USCIS has been liberal in reading this section, rarely rejecting filings made under this cap where the foreign national held an advanced degree awarded in the U.S. However, recently, in following its new policy of strict interpretation and observance of the immigration laws and regulations, USCIS has begun to closely scrutinize these filings, issuing requests for evidence, and even denials where it finds that the institution does not fit within the requisite definition to qualify. What’s more, Greenberg Traurig has been informed that USCIS has begun revocation proceedings for previously approved H-1B petitions, where it determined that it previously approved H-1B petitions under the advanced degree cap in error.

This year’s H-1B filings are once again expected to surpass the amount allotted under both caps within the first week, with USCIS conducting a random lottery to choose H-1B petitions for adjudication, similarly to last year. If a petition is filed erroneously requesting adjudication under the advanced degree cap and is rejected by USCIS, with both caps having been exhausted within the first week of the filing season, it is unlikely to be re-filed for the same fiscal year. Therefore, it is very important to provide all of the academic credentials in connection with the H-1B filing to your GT business immigration and compliance attorney and make sure to speak with them about the requirements involved with the H-1B petition cap filings.

Article by:

Nataliya Rymer

Of:

Greenberg Traurig, LLP