Amid a flurry of media reports last week and verified today by U.S. Sen. Chris Van Hollen (D-MD), Homeland Security Secretary Kirstjen Nielsen announced the availability of 30,000 additional H-2B visas for 2019 seasonal employment. Several years ago, Congress gave the DHS Secretary, in consultation with the Department of Labor, the authority to augment H-2B seasonal visas up to a cap (66,000 per/yr). The Secretary has allowed 15,000 additional H-2B visas in the past two years. This doubling of the allotment comes with a returning worker requirement. That means only those H-2B visa holders who previously held visas in the past three years are eligible to participate in the 30,000 allotment.

The Secretary continues to encourage Congress to pass legislation determining the number of seasonal H-2B visa holders per year. In the interim, many in Congress have encouraged the Secretary to use her discretion, as she did today, to increase H-2B visas to eligible individuals.

The number of additional visas and timing pleasantly surprised many observers. The President has discussed the need for additional workers in speeches recently, and his remarks are believed to have had an effect on today’s announcement.

Sec. Nielsen indicated that a formal announcement of this action will be in an upcoming Federal Register.  Please check back, as we will update this and other posts.

For more on H-2B visas, click here.

˘ Not admitted to the practice of law

The U.S. Senate passed by Unanimous Consent an amended version of H.R. 1044, the Fairness for High-Skilled Immigrants Act of 2019 that was passed by the U.S. House of Representatives in 2019.

The Senate-passed bill eliminates per-country quotas for all employment-based immigrant visa and adds additional requirements for H-1B visas. See the bill here.

This bill increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15%, and eliminates the 7% cap for employment-based immigrant visas. It also removes an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), and EB-3 (skilled and other workers) for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country. EB-5 is not included in the transition as it was in the earlier House version.

The Senate bill includes H-1B compliance provisions and limitations on Chinese immigrants affiliated with the Chinese government. We understand that House leaders have concerns with some of these new Senate-passed provisions and will amend the bill and send it back to the Senate for passage. Should the bill pass both Chambers, it will be sent to the president for his signature before it will go into effect.

Today, the U.S. House of Representatives approved H.R. 1044, the Fairness for High-Skilled Immigrants Act of 2019, that eliminates per-country quotas for all employment-based immigrant visa petitions by a wide, bipartisan vote of 365-65.

The bill includes language helpful to the EB-5 program relating to a transition period for implementation, as explained –

Fairness for High-Skilled Immigrants Act of 2019

This bill increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15%, and eliminates the 7% cap for employment-based immigrant visas. It also removes an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY2020-FY2022, by reserving a percentage of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country.

A companion bill, S. 386 (Sen. Lee, R-UT) was being discussed for Senate floor consideration last month.  The bill drew H-1B compliance provisions that slowed momentum and interested Senators continue negotiations.

Please contact your GT attorney for specific questions.  We will update this matter as information becomes available.

For more on Employment Visas, click here.

USCIS announced June 7 it had received sufficient petitions to reach the recently allocated 30,000 additional returning worker H-2B visas (see our related May 8 post here). Some commenters had noted that the returning worker and the “irreparable harm” attestation requirements required under the additional allocation might suppress utilization. Even with the additional requirements, U.S. employers maintained demand for the increased resources in one month’s time.

Here is the June 7 USCIS statement:

Cap Reached for Additional H-2B Visas for FY 2019

USCIS has received enough petitions to reach the additional maximum 30,000 visas made available for returning workers under the H-2B numerical limit (also called a cap) for fiscal year (FY) 2019.

As previously announced, USCIS began accepting H-2B petitions on May 8 under the temporary final rule increasing the cap by up to 30,000 additional H-2B nonimmigrant visas for returning workers through the end of FY 2019.

USCIS will reject and return any cap-subject petitions received after June 5, together with any accompanying filing fees.

USCIS will continue to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions for:

  • Current H-2B workers in the United States petitioning to extend their stay and, if applicable, change the terms of their employment or change their employers;
  • Fish roe processors, fish roe technicians, and/or supervisors of fish roe processing; and Please contact your GT attorney with questions and please check back as this matter and others will be updated as information becomes available.
  • Workers performing labor or services in the Commonwealth of Northern Mariana Islands and/or Guam from Nov. 28, 2009, until Dec. 31, 2029.

Please contact your GT attorney with questions, and please check back as this matter and others will be updated as information becomes available.

For more on H-2B visas, click here.

On Jan. 25, Senators Orrin Hatch (R-UT) and Jeff Flake (R-AZ) introduced S. 2344, the Immigration Innovation Act of 2018, or I-Squared.  I-Squared has been long-championed by Senator Hatch and the reintroduction of it this Congress includes “updates for this Congress.” Per Senator Hatch-

Continue Reading U.S. Senate legislation Introduced to Address H-1B and Employment-Based Immigration Reforms

The heavily anticipated new Executive Order (EO), “Protecting the Nation from Foreign Terrorist Entry into the United States,” banning nationals from six countries from entering the United States, was signed by President Donald Trump on March 6, 2017 with an effective date 10 days following on March 16, 2017. This new EO revokes and replaces the previous EO 13769 signed on Jan. 27, 2017. The replacement EO provides additional clarification that stemmed from judicial review. For a summary of EO 13769, and a history of events that transpired, please visit.

Highlights of changes in the new EO include:

  • The six countries under the travel ban are Iran, Libya, Somalia, Sudan, Syria, and Yemen.  Iraq has been lifted from the travel ban.
  • Clarification has been given that lawful permanent residents are not subject to the travel ban, and dual nationals may use another passport (that is not from one of the six countries) to enter the United States.
  • Waivers may be granted to individuals applying for a visa who are subject to the travel ban if: 1) denying entry during this period would cause undue hardship, 2) the entry would not pose a threat to national security, and 3) it would be in the national interest of the United States. Examples were provided of situations where a waiver would be appropriate.
  • Entry under the U.S. Refugee Admission Program will be halted for 120 days from March 16, 2017. Notably, the blanket halt on Syrian refugees has been removed.
  • The Visa Interview Waiver Program is suspended until further guidance from the Department of State.
  • Those who are in the United States will not have their visas revoked.

The new EO provides an explanation for some components of EO 13769 that are now rescinded, amended, or clarified in this Order. A section-by-section analysis is below:

Section 2:  Suspension of Visa Issuance- Iraq Removed

The text of this EO calls for the suspension of issuance of visas to nationals of Iran, Libya, Somalia, Sudan, Syria, or Yemen, except in case-by-case waivers, for 90 days from the effective date of the EO (March 16, 2017), while an ongoing assessment of the countries for terrorist threats is conducted. Notably, Iraq has been removed as one of the original countries subject to the travel ban. The reason cited is that the United States has been closely working with the Iraqi government and because of the military presence in Iraq, and Iraq’s commitment to fight ISIS, removing this country from the travel ban is justified.

In addition, the Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, will conduct a worldwide review to identify additional information, if necessary, from any country to ensure that the individual applying for a visa benefit is not a security threat. Within 20 days of March 16, 2017, a required report will be submitted to the President on the results of the worldwide review. Copies of this report will also be given to the Secretary of State, the Attorney General, and the Director of National Intelligence.

Once the report has been submitted to all parties, the Secretary of State shall request the foreign governments to provide the information needed within 50 days of notification. After the 50 day period has expired, the Secretary of Homeland Security, with the Secretary of State and the Attorney General, will submit to the President a list of countries where certain categories of foreign nationals should be prohibited from visa issuance because they have not provided the information. Additional countries may also be submitted for consideration to be added to the list of countries where restrictions or limitations are deemed necessary to protect the United States. In the same way, countries may be recommended for removal from the list as well.

Four reports, each submitted within 30 days of the effective date of the Order (March 16, 2017) to President Trump, are required to document the progress. Continue Reading New Travel Ban Order to Temporarily Halt Entry for Those Seeking New Visas from 6 Muslim-Majority Countries

work appBeginning Feb. 16, 2016, USCIS began reissuing receipt notices on Form I-797 to applicants who continue to have pending applications for renewed employment authorization (EAD applications) under certain categories that were originally filed between July 21, 2016 and Jan. 16, 2017. EAD applications that were filed during this window did not fall within the benefits of the finalized rules to modernize and improve employment-based non-immigrant and immigrant visa programs, published by the U.S.
Department of Homeland Security, and which
took effect on Jan. 17, 2017.

Specifically, USCIS began reissuing EAD receipt notices for the below categories because some of the receipt notices issued by USCIS between July 21, 2016 and Jan. 16, 2017 did not indicate the EAD category.  These EAD categories are:

  • (a)(3) Refugee
  • (a)(5) Asylee
  • (a)(7) N-8 or N-9
  • (a)(8) Citizen of Micronesia, Marshall Islands, or Palau
  • (a)(10) Withholding of deportation or removal granted
  • (c)(8) Asylum application pending
  • (c)(9) Pending adjustment of status under section 245 of the Immigration and Nationality Act
  • (c)(10) Suspension of deportation applicants (filed before April 1, 1997), cancellation of removal applicants, and special rule cancellation of removal applicants under NACARA
  • (c)(16) Creation of record (Adjustment based on continuous residence since January 1, 1972)
  • (c)(20) Section 210 Legalization (pending Form I-700)
  • (c)(22) Section 245A Legalization (pending Form I-687)
  • (c)(24) LIFE Legalization
  • (c)(31) VAWA self-petitioners

As part of the finalized rules that took effect on Jan. 17, 2017, USCIS indicated on the EAD renewal receipt notice the EAD category for renewal applications that were filed after Jan. 16, 2017. Under the finalized rules, applicants could present the EAD renewal receipt notice to their employer as a valid List A document for Form I-9, Employment Eligibility Verification, to show that they had continued work authorization for 180 days while USCIS reviewed their EAD renewal applications. By reissuing the receipt notices to EAD renewal applicants who filed applications between July 21, 2016 and Jan. 16, 2017 under the above-listed categories, these EAD renewal applicants can present the reissued receipt notice to their employer for Form I-9 and take advantage of the finalized rules providing 180-day extensions in employment authorization.

Absent from the above-listed EAD categories are dependents of popular employment-based nonimmigrant visas, such as the H-4, L-2, and E-3D, as well as EAD applicants who have Deferred Action for Childhood Arrivals (DACA), or Temporary Protected Status (TPS), which give applicants authorization to remain in the United States.

Applicants who file for an EAD renewal based on TPS already receive a 6-month extension through the Federal Register notice that extended their respective country’s TPS designation. For the other EAD renewal applicants, they must present the actual EAD to their employer to verify their continued employment authorization. The specific categories are noted below:

  • (a)(17) Spouse of an E nonimmigrant
  • (a)(18) Spouse of an L nonimmigrant
  • (c)(26) Spouse of an H-1B nonimmigrant
  • (c)(33) Consideration of Deferred Action for Childhood Arrivals

For more information please contact your Greenberg Traurig attorney.

immigration form

On Nov. 18, 2016, the Department of Homeland Security (“DHS”) published its final rule to “modernize and improve” employment-based non-immigrant and immigrant visa programs.  As stated by DHS, the primary purpose of the improvements is to enhance the ability of U.S. employers to hire and retain specific foreign national employees who are the beneficiaries of approved employment-based immigrant visa petitions.   The improved rule puts in writing many DHS policies and practices that DHS has established in response to certain provisions of the American Competitiveness and Workforce Improvement Act of 1998.  The final rule is effective on Jan. 17, 2017.

Key improvements, and potential impact to employers and foreign nationals, are listed below broken down by non-immigrant vs. immigrant processes:

Non-immigrant:

  • 10-Day Non-immigrant Grace Period for Entering and Departing the United States:  Similar to H-1B visa holders, non-immigrants who seek to enter the United States in E-1, E-2, E-3, L-1, or TN classification, may enter the United States as early as 10 days prior to the start of their petition validity.  The rule also allows a second 10-day grace period for these non-immigrant visa holders to depart the United States or seek alternative visa arrangements at the conclusion of their petition validity.  A 10-day grace period for non-immigrants to enter the United States prior to commencing employment allows non-immigrants to plan and secure housing, and become acclimated to their new environment prior to beginning work in the United States.  A 10-day grace to depart the United States allows for non-immigrants to adequately wind down their affairs prior to departing the United States without violating their immigration statuses, and possibly jeopardizing their ability to obtain future immigration benefits as a result.
  • 60-Day Non-immigrant Grace Period:   Non-immigrants who hold E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classification in the United States can remain in the United States for up to 60 consecutive days after their employment ends with their current Petitioner/Employer.  A 60-day grace period for non-immigrants to remain in the United States allows the non-immigrant to seek alternative employment and visa sponsorship, or wind down their affairs in the United States without violating their immigration statuses, and possibly jeopardizing their ability to obtain future immigration benefits as a result.  Non-immigrants who secure employment-sponsorship within the 60-day grace period may begin working for the new employer upon the filing or approval of the non-immigrant petition without first having to travel to a U.S. Consulate abroad for visa activation under a process known as consular notification.
  •  H-1B Duties Without Licensure:  USCIS is permitting H-1B non-immigrants to work in occupations that normally require state licensure to practice fully the occupation under the supervision of a licensed senior personnel employee.  For the H-1B non-immigrant to work in an occupation without a license, the Petitioner/Employer must provide evidence that it is fully complying with state requirements regarding licensure.
  • USCIS Processing Time for I-765, Application for Employment Authorization:  USCIS is eliminating the 90-day processing time for applications for employment authorization documents (“EAD”), or EAD renewal applications, but will continue to process EAD applications within a “reasonable time.”
  • Automatic Extensions for EAD Renewals:  Upon the timely filing of an EAD renewal with USCIS for foreign nationals who are in the United States under temporary protected status, USCIS will automatically extend the existing EAD for 180 days while USCIS is adjudicating the TPS and EAD renewal applications.

Immigrant Visas:

  • Priority Date Clarification:  The priority date of any petition filed with a labor certification from the Department of Labor (“DOL”) will be the date the labor certification application was accepted for processing by the DOL.  For I-140 petitions that do not require a labor certification, the priority date is the date the petition was accepted by the USCIS for processing and was properly filed.
  • Priority Date Retention:  I-140 petitions that have been approved under the EB-1, EB-2, or EB-3 categories shall accord the beneficiary that priority date for any subsequently filed petitions under the EB-1, EB-2, or EB-3 categories, and the earliest priority date will always be retained, unless the petition was revoked due to 1) fraud, willful misrepresentation; 2) revocation of the approved PERM application; 3) invalidation by USCIS or DOS of the PERM application; or 4) USCIS determination that the I-140 petition was approved based on a material error.  In these cases, a denied I-140 petition will not accord a priority date.
  • Validity of Approved I-140 Petition:  Unless the approval is revoked, an I-140 petition is valid indefinitely.
  • Eligibility for EAD Application:  For individuals who have an I-140 petition approved pursuant to EB-1, EB-2, or EB-3 classification, the principal beneficiary may be eligible to apply for employment authorization pursuant to the following:  1) the individual is in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status; 2) an immigrant visa must not be available to the principal beneficiary at the time of application based on the priority date; and 3) USCIS determines that the principal beneficiary demonstrates compelling circumstances that justify the issuance of employment authorization.  Eligible family members of the principal beneficiary may apply concurrently, but the employment authorization will not be granted until the principal beneficiary’s application is granted.  The employment authorization may be renewed so long as the principal beneficiary’s priority date does not become current on the date of the EAD application, he or she is still eligible, and USCIS determines that a compelling reason remains.
  • Revocation of I-140 Petitions:  If the petitioning employer files to withdraw an approved I-140 petition, the approval remains if it has been approved for 180 days or more, or if an adjustment of status application pursuant to the I-140 petition has been pending for 180 days or more, unless the I-140 petition was revoked on other grounds.  If the petitioner’s business has been terminated, and the termination happens 180 days after the I-140 petition approval or 180 days after the associated adjustment of status application has been pending, the I-140 approval remains valid.
  • Adjustment of Status and Validity of Petition and Offer of Employment:  An I-140 petition is validly filed if there is a valid offer of employment to the beneficiary at the time of petition submission, and at the time of petition adjudication.  The applicant must intend to accept the offer at the time of petition adjudication, and USCIS may request evidence to demonstrate the following scenarios:  1) the employment offer from the petitioning employer is continuing; or 2) the applicant has a new job offer from the petitioning employer or a different employer in the same or similar occupational classification, if the applicant’s application to adjust status based on the immigrant visa petition has been pending for 180 days or more and the I-140 petition has been approved or was pending 180 days or more before the new job offer was accepted.  The pending I-140 petition must still establish the employer’s ability to pay the proffered wage before the case will be adjudicated.

The Department of State (DOS) recently published its annual report of immigrant visa applicants (2015 Annual Immigrant Visa Report), which tallies up the number of total applicants—including spouses and children—who are waiting for their respective priority date to become current, allowing for them to obtain their green card. The annual report, which totals the number of applicants up to Nov. 1, 2015, does not take into account those applicants who have adjustment of status applications pending with the U.S. Citizenship and Immigration Services (USCIS) as of Nov. 1.

Overall, 2015 saw a three percent increase of total applicants compared against last year, increasing from a total of 4,422,660 for 2014 to 4,556,021 for 2015. This total includes both family-based green cards and employment-based green cards. Employment-based green card applicants only accounted for roughly 100,000 of the 4.5 million. When compared against 2014, the percentage of employment-based applicants waiting to apply for their green cards increased from 90,910 to 100,747—an increase of 10.8 percent.

Continue Reading Over 4.5 Million Are Waiting for Green Cards—Over 100,000 of them are Employment-Based

The Department of State (DOS) recently released a cable summarizing USCIS policy guidance on H-1B visa petitions that involve a change in place of employment. As we reported previously, a Restrictive AAO Decision held that a change in the place of employment of a beneficiary to a geographical area requiring a new LCA may affect eligibility for H-1B status, and further, denotes a material change under the Code of Federal Regulations. USCIS later issued a Policy Memorandum in July 21, 2015, confirming the need for both a new LCA and an H-1B Amendment Petition, stating that the employee can begin working at the new location as soon as the petition is filed with USCIS.  This memorandum also sets forth the criteria for when an H-1B amendment is required. Prior to this precedent AAO decision and USCIS Policy Memorandum, if there was a change in the area of employment for an H-1B worker,  it was acceptable for an employer to post a new LCA and record the change of are of intended employment, without having to file an H-1B amendment petition. Since this AAO decision, employers are required to file both a new LCA with DOL and an H-1B amendment with USCIS, to reflect these changes.

The DOS cable advises consular officers on how to handle H-1B visa applications where an H-1B amendment may have been required. The cable also discusses when an amended or new petition is required. Before any H-1B worker makes a visa application at a U.S. Consulate abroad, employers should confirm that the place(s) of employment is (are) accurately reflected on the H-1B worker’s filing documents.