USCIS Posts Comprehensive Reports Containing H-1B and EAD Data

Posted in Employment Authorization, Executive Order, H-1B, USCIS, Visas

Under the heading “Transparency for U.S. Workers,” the U.S. Immigration and Citizenship Services (USCIS) uploaded five reports today containing comprehensive data regarding its H-1B and Employment Authorization Documents (EAD) adjudications. The H-1B reports “provide information about the hiring practices of employers who petition for foreign national workers.” The H-1B trend report contains statistics about the H-1B program from 2007 through 2017. The data listed in this report includes H-1B beneficiary country of birth, age, occupational category, industry, compensation, and education level. The other two H-1B reports are nearly 1,000 pages each and list every company with approved H-1B petitions in fiscal years 2015 and 2016. These reports contain the employers’ total number of approved H-1B petitions, and the average salaries and types of degrees held by the H-1B beneficiaries. The EAD reports list the total number of approved EADs for each immigration category where employment authorization is available to foreign nationals. The reports are separated into immigration classes that are employment-authorized by statute and those immigration classes that are employment-authorized at the discretion of the Secretary of Homeland Security.

The release of these reports coincided with a USCIS teleconference listening session today on the April 17, 2017, Presidential Executive Order, Buy American and Hire American. To review a discussion of this EO, please see our previous post. During the session, USCIS encouraged participants to share their ideas on how to make sure employment-based visa programs are not negatively affecting U.S. workers. USCIS said it was especially interested in feedback regarding the H, L, and E visa classifications and how to utilize those visa programs to protect U.S. workers and wages. USCIS also solicited ideas as to how to ensure H-1Bs (which are subject to an annual quota) are awarded to the best and the brightest.

USCIS announced that DHS and USCIS were working on memoranda to provide new guidance to protect the interests of U.S. workers, including through the prevention of fraud and abuse. USCIS emphasized that all employment-based programs are under review and that the goal was to ensure that these programs are designed to serve U.S. interests and are prioritizing the interests of U.S. workers.

The H-1B and EAD reports are available on USCIS’s website at https://www.uscis.gov/buy-american-hire-american-putting-american-workers-first.

USCIS to Resume Premium Processing for Certain Cap-Exempt Institutions

Posted in H-1B, H-1B Cap, USCIS

On June 20, the USCIS Ombudsman office held a teleconference on H-1B petition processing to discuss various topics, including premium processing.  Premium processing for H-1B petitions had been suspended in mid-March of this year so that resources could be focused on processing current petitions.  During the call, USCIS stated that it would bring back premium processing incrementally.  On June 26, it resumed premium processing for all H-1B petitions filed for medical doctors under the Conrad 30 Waiver program.

Just today, USCIS announced that it would resume premium processing for certain cap-exempt petitions, effective immediately.  Premium processing will resume for the following petitions, if the H-1B petitioner is:

  • An institution of higher education;
  • A nonprofit related to or affiliated with an institution of higher education; or
  • A nonprofit research or governmental research organization.

Premium processing will also resume for petitions that may also be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization, or entity.  This is a further step in USCIS “incrementally” bringing back premium processing for H-1B petitions.

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USCIS Issues New Visa Bulletin Tutorial for I-485 Applications

Posted in Adjustment of Status, Green Card, Immigrant Visa, USCIS, Visas

USCIS has issued a new online tutorial for immigrants that will help determine when a Form I-485, Application for Adjustment of Status, can be filed with USCIS.  For those immigrants who have a family-based or employment-based immigrant petition filed or approved on their behalf, the new Visa Bulletin tutorial details how to determine your priority date and how to use the USCIS charts for determining when the Form I-485 can be filed with USCIS.

The tutorial explains that green cards and immigrant visa numbers for immediate relatives (spouses of U.S. citizens, unmarried children under 21 of US citizens, and parents of U.S. citizens) are unlimited, and therefore an I-485 can be filed at the same time the qualifying relative files Form I-130, Immigrant Petition for Alien Relative.  It also explains that green cards for family-sponsored and employment-sponsored green cards are limited each year, and thus the Visa Bulletin must be consulted to determine when the I-485 Application can be filed.  The key to determining when the I-485 Application can be filed with USCIS is understanding the “priority date,” which is the date that either the immigrant petition is filed with USCIS or the date that the labor certification application was filed with the US Department of Labor (if applicable).

USCIS’ webpage also explains when to use the “Final Action Date” chart and when to use the “Dates for Filing Visa Applications” chart to determine when the I-485 Application can be filed based upon the immigrant’s priority date.  If USCIS determines that there are more immigrant visas available for a fiscal year than there are known applicants for such visas, USCIS will state on this page that you may use the Dates for Filing Visa Applications chart. Otherwise, USCIS will indicate on this page that you must use the Application Final Action Dates chart to determine when you may file the I-485 Application.  The State Department updates the Visa Bulletin on a monthly basis, and USCIS also will update its charts on a monthly basis accordingly, so immigrants are encouraged to check these charts monthly to determine if the I-485 Application can be filed with USCIS.

USCIS Confirms all 2018 H-1B Cap-Subject Petitions Returned

Posted in H-1B, H-1B Cap, USCIS

Today, USCIS announced that it has now returned all cap-subject H-1B petitions to employers or their representatives that were not selected in fiscal year 2018 following the lottery process.  Any employer that hasn’t received a receipt notice or returned H-1B petition by July 31, 2017, should contact USCIS for assistance.

The H-1B cap for fiscal year 2019 will open on April 2, 2018.  It will remain open for a mandated period of five business days.  We anticipate that demand for H-1B petitions will be very high again next year requiring USCIS to close the cap after the five-business-day period is completed.  All filed petitions will then be subject to a computer-generated random selection process shortly after the cap closes.

Employers should assess alternative visa options for any employee who wasn’t selected in this year’s H-1B cap. Please reach out to your GT contact for more information.

The Department of Homeland Security Adds an Additional 15,000 Visas to the H-2B Program

Posted in Department of Homeland Security, Department of Labor, H-2B, Visas

The Department of Homeland Security (DHS) and The Department of Labor (DOL) have submitted a final rule to the Federal Register, which will be published on July 18, 2017, increasing the number of H-2B visas by 15,000. DHS Secretary John Kelly determined, along with DOL Secretary Alexander Acosta, that there are not enough qualified and willing U.S. workers available to U.S. businesses for the remainder of the fiscal year and that these businesses may suffer “irreparable harm” if they are unable to hire additional workers.

The annual cap for H-2B visas is 66,000, with half available during the first half of the fiscal year, and the remainder available during the latter half. The annual cap of 66,000 was reached on March 13, 2017, and in May 2017 Congress delegated authority to the DOL to determine whether the numbers should be increased. With the additional 15,000 visas added, employers, who can begin submitting petitions this week, will need to attest, under penalty of perjury, that their business is likely to suffer irreparable harm if it cannot employ H-2B workers for the 2017 fiscal year. This attestation will appear on the form that will be filed with the petition. There has also been a new tip line to report general H-2B abuse and employer violations and the information can be submitted to ReportH2BAbuse@uscis.dhs.gov.

Update On FAQs After Hawaii District Court Decision

Posted in Customs and Border Protection, Department of State, Executive Order, Supreme Court, Travel

On July 14, 2017, Judge Derrick Watson from the Hawaii District Court expanded the definition of “close familial relationship” to include grandparents, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins.

In addition, Judge Watson ruled that for refugees, a bona fide relationship with an entity can include a U.S. resettlement agency that has issued a “formal assurance.”  In this situation, the U.S. cannot block entry of a refugee.

To read previous alert, click here.

USCIS Releases New Edition of I-9 and Handbook for Employers

Posted in Employment Verification, USCIS

On July 17, 2017, United States Citizenship and Immigration Service (USCIS) released a new Form I-9, Employment Eligibility Verification.  The new Form I-9 contains minor changes to the instructions and list of acceptable documents.  More specifically, the instructions now reflect the Office of Special Counsel for Immigration-Related Unfair Employment practice’s new name, Immigrant and Employee Rights Section (IER).  Furthermore, the list of acceptable documents now includes the Consular Report of Birth Abroad (Form FS-240), lists all certifications of birth issued by the Department of State in one selection, and re-numbers List C documents.

Employers can begin using the new Form I-9 as soon as possible, but still may use the previous version of Form I-9 (revision date 11/14/2016N) through Sept. 17, 2017. Beginning Sept. 18, 2017, only the new Form I-9  (revision date 07/17/2017) will be permitted.

In connection with the new Form I-9, USCIS has also released a new M-274 Handbook for Employers: Guidance for Completing Form I-9, which reflects the changes to the instructions and list of acceptable documents.

August 2017 Visa Bulletin Update

Posted in China, EB-3, India, U.S. Department of State ("DOS"), USCIS, Visa Bulletin

The Department of State’s (DOS) August 2017 Visa Bulletin showed some minor forward movement in some employment-based categories, with no movement or retrogression in other employment-based visa categories. Referring to the Final Action Dates, the following are the updates for the August Visa Bulletin:

The Worldwide EB-1 category for India and China remains stalled at Jan. 1, 2012, while the other categories are current.

The cutoff date for worldwide chargeability in the EB-2 category moved from current to April 1, 2015, which may be a surprise to many. There was also retrogression in the El Salvador/Guatemala/Honduras category; and in the Mexico and Philippines categories. China moved slightly from March 22, 2013, to April 22, 2013, and India remains stalled at July 22, 2008.

In the EB-3 category, the cutoff date for worldwide chargeability, which had a cut-off of June 8, 2017, in the July Bulletin, is now current; as are the El Salvador/Guatemala/Honduras and Mexico categories. The cutoff date for mainland China remains stalled at Jan. 1, 2012. The Philippines had significant movement from May 15, 2014, to June 1, 2015. India moved slightly from Feb. 15, 2006, to July 15, 2006. The other categories are now current.

For those in the EB-5 category, the priority date remains current for all applicants other than those born in mainland China, which moved its cutoff date only by a few days from June 8, 2014, to June 15, 2014.

For those seeking to adjust status, The United States Citizenship and Immigration Service (USCIS) website indicates that the Department’s Application Final Action Dates chart must be used for filing Form I-485. This has not yet been updated with the August 2017 dates; however, we anticipate that USCIS will continue to follow Application Final Action Dates for August as it has to date.

Final Action Dates for Employment-Based Cases

Dates for Filing Employment-Based Visa Applications

*Not admitted to the practice of law.

GT Immigration Attorneys Recognized in Legal 500 United States 2017 Guide

Posted in Awards & Recognitions

Greenberg Traurig’s Immigration & Compliance Practice has been recognized by The Legal 500 United States 2017 Guide (Guide) in the area of “Labor and Employment – Immigration.”  GT immigration attorneys Laura Reiff, Kate Kalmykov, Ian Macdonald, Pamela Mak, and Martha Schoonover have once again been recommended by The Legal 500 United States 2017 editorial.  The Guide highly recognizes five GT attorneys as elite “Leading Lawyers,” including the firm’s Labor and Employment – Immigration attorneys, Reiff and Schoonover.  This ranking recognizes practice area teams and practitioners who are “providing the most cutting edge and innovative advice to corporate counsel.” The elite “Leading Lawyers” rankings are based on feedback from 250,000 clients worldwide, law firm submissions, and interviews with private practice lawyers, in addition to Legal 500’s independent research in the legal market. Additionally, The Legal 500 recognized Reiff in its “Hall of Fame.”  This recognition is awarded to individuals who receive constant praise from their clients for continued excellence.

To read the complete article, please click here.

Department of Homeland Security Releases FAQs Following Reinstatement of Travel Ban

Posted in Department of Homeland Security, Travel

The Department of Homeland Security (DHS) released FAQs for those affected by the recently reinstated travel ban. Earlier last week, the Department of State released their own set of FAQs regarding implementation of the travel ban during visa processing. DHS will be responsible for admitting persons entering the United States and the FAQs on its website will answer questions many people may have.

Greenberg Traurig will continue to monitor new developments. For more information, please contact us or subscribe to this blog.

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