Emergency H-2B Processing Available For Another Month

The Department of Labor (DOL) has announced that it will continue to accept emergency requests until midnight on April 29, 2016, for H-2B applications filed on or between April 2 and April 29, 2016. This extension is due to continued delays in processing H-2B applications. For full background on the H-2B delays, please see our March 2016 alert. The full text of the DOL emergency processing initiative (including procedures for employers requesting emergency treatment of pending H-2B applications) is available here.

New STEM OPT Rules: More than Just an Extra Seven Months of Work Authorization

On March 11, 2016, the U.S. Department of Homeland Security (DHS) published its final rule on enhancements to the Optional Practical Training (OPT) program for F-1 international students in science, technology, engineering, and mathematics (STEM) fields.  This final rule takes effect on May 10, 2016 and extends the STEM OPT validity from 17 months to 24 months. The additional seven months of employment authorization (allowing at least two more chances for H-1B cap filing success) is a welcome change for foreign students and their employers, but this extension comes with increased reporting, training, and monitoring obligations for the employer and student. Employers hiring STEM OPT workers should carefully review the links below, especially the Form I-983 instructions, to make sure any employment arrangements comply with the new requirements.
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USCIS Guidance on “Same or Similar” Occupations

USCIS has issued a new policy memorandum (PM) outlining relevant considerations in assessing whether a position qualifies as a “same or similar” occupation to the foreign national’s previously approved job for purposes of portability.  Section 204(j) of the Immigration and Nationality Act (INA) was created as part of the American Competitiveness in the Twenty-First Century Act of 2000 and permits applicants for adjustment of status to that of lawful permanent resident who are beneficiaries of approved Form I-140 petitions to change jobs or employers without re-testing the labor market or obtaining new approved petitions under certain circumstances. This PM has been made part of the Adjudicator’s Field Manual and will be used by USCIS officers in making 204(j) determinations for petitions pending or filed on or after March 21, 2016.
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Revised Rules for H-1B1, E-3 and CW-1 Workers and EB-1 Petitioners

DHS recently published amended regulations affecting certain highly skilled workers in specialty occupations from Chile, Singapore (H-1B1) and Australia (E-3), nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification and applicants seeking immigrant status in the employment-based first preference (EB-1) outstanding professor and researcher classification. The final rule, effective February 16, seeks to minimize the potential employment disruptions for U.S. employers of current employees in the H-1B1, E-3 and CW-1 classifications and to enable recruitment of outstanding professors and researchers by expanding types of acceptable evidence. Continue reading

Visa Waiver Changes – Answers to your ESTA-cancellation Questions

UPDATE: CBP has announced that Libya, Somalia, and Yemen are now included with Iran, Iraq, Sudan and Syria as countries of concern, so that individuals who have traveled to these countries since March 1, 2011 are not eligible for ESTA travel.  Regardless of travel, dual nationals of Iran, Iraq, Sudan, and Syria (not of Libya, Somalia, and Yemen) are ineligible for ESTA travel.

ORIGINAL POST: As reported in last month’s article, the enactment of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 will restrict certain travelers from using the Visa Waiver Program (VWP) and require them instead to obtain a nonimmigrant visa from a U.S. embassy or consulate abroad. U.S. Customs and Border Protection (CBP) has published a series of FAQs on the changes to the VWP following the December 18, 2015 enactment.

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Changes to the Visa Waiver Program

In the aftermath of the Paris and San Bernardino attacks, the Visa Waiver Program (VWP) was amended significantly on December 18, 2015, when the enactment of the 2016 Consolidated Appropriations Act (H.R. 2029) was signed into law and included the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015. The VWP allows citizens of participating countries (currently 38 countries) who meet certain eligibility requirements to travel to the United States without obtaining a visa for stays of 90 days or less.  Under the new law, participating countries are now subject to additional restrictions and risk revocation from the program for non-compliance. Additional country requirements include increased passport security requirements, screening protocols and more comprehensive information sharing. Some of these requirements are effective immediately, with others to be implemented in phases throughout the upcoming year. Continue reading

Changes Ahead for Highly Skilled Workers

On December 31, 2015, United States Citizenship and Immigration Services (USCIS) published a proposed rule in the Federal Register in furtherance of President Obama’s executive action to modernize, improve and clarify certain immigrant and nonimmigrant visa programs. This modernization effort was included with the multiple executive actions first announced on November 20, 2014, and has been eagerly awaited by many skilled workers, particularly immigrant visa applicants from India and China who are stuck in the extraordinarily lengthy backlogs trying to complete their visa processes. The proposed amendments are aimed to better enable U.S. employers to hire and retain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions. Continue reading

I-9 Guidance on H-1B Petition/I-94 Mismatch and Short Term Workers

In a recent meeting between the Verification and Document Liaison Committee within American Immigration Lawyers Association (AILA) and USCIS’s Verification Division and ICE Homeland Security Investigations, further guidance was provided on documenting the mismatch of dates for H-1B nonimmigrant workers between the status expiration date noted on the I-94 Arrival/Departure Record and the underlying USCIS petition expiration date. Pursuant to H-1B regulations, the H-1B beneficiary may be admitted for a period that includes the validity of the underlying H-1B petition, plus a period of up to 10 days before the period begins and 10 days after the validity period ends, but work authorization is limited to the period of the approved H-1B petition. This can often result in confusion for employers who are completing Sections 1 and 2 of Form I-9 and do not know how to address the conflicting dates. Continue reading