August 2016 Visa Bulletin: Retrogression in Certain Employment-Based Categories

The Department of State (DOS) has issued its August 2016 Visa Bulletin which reflects retrogression in Employment-Based First Preference (Priority Workers such as Multinational Managers) and Employment-Based Second Preference (Members of the Professions Holding Advanced Degrees) visa applications, and continued high demand in Employment-Based Third Preference visa applications (Skilled Workers, Professionals, and Other Workers).
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Increased Fines for I-9 and Other Immigration Violations Effective August 1, 2016

The U.S. Departments of Homeland Security (DHS), Justice (DOJ), and Labor (DOL) announced increased civil fines against employers who commit immigration-related offenses, such as Form I-9 and E-Verify violations, H-1B visa program violations, unfair immigration employment practices, and unlawfully employing foreign nationals. These increased penalties will be applicable only to penalties assessed after August 1, 2016, but will apply to violations that occurred after November 2, 2015.
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USCIS Returns Unselected Fiscal Year 2017 H-1B Cap-Subject Petitions

Employers with FY 2017 H-1B cap cases not chosen for processing should have received their returned petition packages with fee checks by July 8. The agency continues to process receipted non-premium H-1B cap petitions and premium cases that received requests for evidence. Employers who submitted an H-1B cap-subject petition between April 1 and April 7, 2016 and have not received a receipt notice or a returned petition by July 22, 2016, may contact USCIS for assistance.

Increased Wait Times at U.S. Consular Posts in India

U.S. Consular Posts in India are currently experiencing extraordinary wait times for nonimmigrant visa (NIV) interview appointments. In July 2016, the current wait times for all non-immigrant visa categories (other than Visitor and Student/ Exchange Visitors) are 112 days in Chennai, 116 days in Hyderabad, 104 days in Kolkata, 71 days in Mumbai, and 111 days in New Delhi. The wait times are expected to continue and possibly worsen throughout the summer months.
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Tennessee Employers with 50 or More Employees Will Be Required To Use E-Verify Starting 1/1/2017

Starting January 1, 2017, all Tennessee employers with 50 or more employees will be required to use the E-Verify system in order to verify the employment eligibility of workers hired on or after that date. Currently, employers with 6 or more employees must either use E-Verify or request and retain certain documents from each employee. For employers with 50 or more employees, the new law will eliminate the document retention option in favor of mandatory E-Verify use.
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H-1B Cap FY2017 and Aftermath

The USCIS received over 236,000 H-1B petitions during this year’s FY2017 filing period for the annual supply of 85,000 new H-1B visas (65,000 for regular cap plus an additional 20,000 for workers with a U.S. Master’s degree).  This year’s number of petitions represents another increase after receiving 233,000 petitions for FY2016, 172,500 for FY2015, and 124,000 for FY2014. On April 12, 2016, the USCIS completed a computer-generated random selection process to select sufficient petitions to meet the 65,000 and 20,000 limits and premium processing will begin on May 12, 2016.
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Adjudicating L-1A Functional Manager Petition Requires Consideration of Role Within the Wider Qualifying International Organization

The USCIS issued a Policy Memorandum adopting as binding a USCIS Administrative Appeals Office (AAO) non-precedent decision that provides guidance on evidence considered when determining whether a beneficiary qualifies as L-1A functional manager. The decision clarifies that, when determining whether an L-1A beneficiary will primarily manage an essential function, USCIS officers must weigh all relevant factors including, if applicable, evidence of the beneficiary’s role within the wider qualifying international organization.
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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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