19 January 2017
Category News Room
19 January 2017,

The 2017 H-1B CAP Season Begins

Our firm is now getting ourselves organized for the 2017 H-1B Cap filing season (applied against Fiscal 2018 H-1B numbers). While the H-1B Cap Lottery is becoming more and more selective each year, with lower acceptance rates last year than the year before, there are still a number of situations in which the H-1B is either unavoidable or the only option for long term employment eligibility. As such, we continue to recommend H-1B Cap filings in cases where other nonimmigrant options (TN, H-1B1, E-2, E-3, J-1, etc.) are not feasible. We’ll look to file all H-1B Cap cases on March 31, 2017 for receipt on April 3, 2017 and, in any event, no later than April 6, 2017 (for last minute cases – so they arrive by April 7, 2017 when the filing window closes.)

Brown Immigration Law attorneys will be reaching out to existing clients in the coming days and weeks, but we encourage others to reach out to our office (info@brownimmigrationlaw.com; 402-328-9899) to discuss how we might help your company with any H-1B or other immigration needs.

Breaking News – New Entrepreneurial Parole Allowance Published

On January 17, 2017 DHS published the final rule providing for Entrepreneurial Parole in the Federal Register.  The final rule will take effect six months after publication – so this July.  It allows for an initial period of three years for a qualifying entrepreneur to receive parole and work authorized status.  It also permits that spouses may receive work authorization during that period.  The three year period can be extended by a further three year period under certain conditions.  Generally, to be a qualified entrepreneur you need to demonstrate a certain level of qualified funding and then either sufficient job creation or sufficient revenues prior to receiving the benefit.  Additionally the entrepreneur needs to hold at least 10% of the company.  To receive an extension you need to have met a higher threshold in either job creation or revenues.  There will be a new form and application process and this may be an alternative method of securing status for foreign entrepreneurs who may qualify.  We’ll provide an in-depth analysis of this new benefit in the near future on our website, but please know that there is the possibility that the new Congress will void this regulation.  So while this is a great step forward by the current Administration, we need to wait and see if the new Congress eliminates this option.

Trump Administration Takes Office January 20, 2017

Donald J. Trump will take the oath of office and assume his position as President of the U.S. on January 20, 2017. Several significant changes to immigration policy have been discussed by Mr. Trump and his surrogates. We understand that many of these proposed changes are worrisome to many of our clients. Brown Immigration Law will seek to address these worries by keeping our clients informed as more concrete developments relating to immigration policy emerge. Please continue to monitor our news alerts and email updates for continuing information on changes to the U.S. immigration system.

House GOP Proposes Additional Penalties to H-1B Dependent Employers

H.R. 170 – 115th Congress: Protect and Grow American Jobs Act was introduced in the House of Representatives on January 3. The proposed bill would specifically apply to H-1B dependent employers* and would amend current provisions that allow for exemptions to penalties. The current law requires such employers to make additional LCA attestations to ensure they are not displacing American workers and make a good faith effort to recruit American workers. Currently H-1B dependent employers are exempt from these provisions if they pay the employee at least $60,000. Additionally, companies who opt to hire those possessing a Master’s degree in the relevant field are also exempt. Under this new proposal, H-1B dependent employers would be bound by provisions unless they promised H-1B workers a salary of at least $100,000. The bill would also eliminate the Master’s degree exemption. An older version of the bill was referred to the House Committee on the Judiciary in July of 2016, but was never voted on.  While this would ensure higher guaranteed wages for H-1B dependent employers and remove the Master’s degree “loophole” it will hurt those H-1B dependent employers who operate in areas outside of the tech sphere – specifically medical professionals such as Medical Technologists and nurses.

*An H-1B dependent employer is one with more than 50 full-time equivalent workers where at least 15 percent of those workers are in H status; with at least 26 but not more than 50 full-time equivalent workers where more than 12 of those workers are in H status; or with 25 or fewer full-time equivalent workers where more than seven of those workers are in H status.

National Interest Waiver Applicants Will Enjoy More Flexible Standard

Nearly two decades since its inception, the much-criticized standard to qualify for an EB-2 National Interest Waiver has been replaced with a new, more realistic and workable standard. Under the previous standard, applicants were required to show that the worker’s employment was in an area of substantial merit; that the work’s benefit would be national in scope; and that the national interest would be adversely affected if they had to test the labor market for U.S. workers. Under the new standard, USCIS will be focusing solely on the applicant’s education, skills, knowledge, and work experience – the major change being that applicants need not show harm to the national interest if the labor market is not tested.

While we view this as a substantial and positive change going forward, we note that USCIS still retains discretion over the granting of national interest waivers, so the changes will depend in large part on how individual adjudicators apply the new test in practice.

New Grace Periods Going into Effect on January 17, 2017

As noted in our December Newsletter, USCIS will be implementing several new grace periods on January 17, 2017. Some of the more note-worthy allowances are as follows:

-Individuals in E-1, E-2, E-3, L-1, or  TN status will be able to enter the U.S. up to 10 days prior to the start date of their work-authorization;
-A10-day grace period will begin upon the expiration or withdrawal of an individual’s E-1, E-2, E-3, L-1, or  TN status, so as to allow these individuals to leave the U.S. or take other action to extend, change, or otherwise maintain their lawful status;
-A 60-day grace period will be granted for individuals in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN status to find employment in the same classification with a new employer after the expiration of their respective status or termination of their sponsored employment; and
-EADs will be automatically extended for certain individuals who apply to renew it within a reasonable time if their renewal application has not yet been adjudicated when their current EAD expires.

The rule will also clarify and improve longstanding DHS policies and practices with respect to: H-1B portability; priority date retention; establishing H-1B cap-exemptions; licensure requirements; and protection for whistleblowers.

Minimal Progressive Changes for the February 2017 Visa Bulletin

On January 9, 2017, the Department of State issued the Visa Bulletin for February. All EB-1 categories remain current for this month. EB-2 China was the only EB-2 chargeability area that advanced its final action date, with a progression from October 15, 2012 to November 15, 2012. However, several small progressive changes were made to all the EB-3 categories. EB-3 India advanced only 7 days and China only 23 days, while all other areas of chargeability advanced 2 months, except the Philippines, which advanced the most this month with a nearly 3 month advancement to October 15, 2011. On the other hand, the February Dates for Filing Visa Applications Chart is identical to last month’s chart, meaning there has been no movement with any filing date permitted by USCIS or DOS.   February 2017 Visa Bulletin

Department of State Imposes Electronic Visa Update System (EVUS) Requirement

As of November 29, 2016, all Chinese Citizens with a 10 year B1, B2, or B1/B2 visa who wish to travel to the United States will need to enroll in EVUS https://www.evus.gov/evus/. Approval to travel on the B visa generally lasts for two years unless the visa and/or passport expire sooner.

TPS Status Re-designated for Yemen

On January 4th, the Department of Homeland Security (DHS) announced that it has redesignated Yemen for Temporary Protected Status (TPS), opening registration for new applicants and allowing current beneficiaries to extend status for an additional 18 months, from March 4, 2017 to September 3, 2018. TPS status also allows new applicants and beneficiaries to apply for or extend the Employment Authorization Document (EAD).

USCIS to Release Date Specific Processing Updates

Effective January 4, 2017, USCIS will post processing times in a specific date format rather than the generic weeks/months to help applicants better understand where their case is in relation to receipt at USCIS and similarly pending applications. While this change constitutes a positive move towards increased transparency for those with pending petition/applications, it unfortunately does not represent a move towards shorter processing times.

Department of Labor Abandons 60-day Prevailing Wage Processing Standard

In the past Department of Labor has declared a 60-day processing time goal for prevailing wage requests related to PERM/Labor Certification filings. However, employers across the U.S. have reported recent processing times in excess of 120 days/4 months. In meetings with immigration interest groups and attorneys, the Office of Foreign Labor Certification has expressed its intent to abandon the 60-day processing time goal for these requests due to insufficient resource allocation. As such, we unfortunately can expect to continue to experience lengthy processing times for the foreseeable future.

** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **

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