October 20, 2015 § Leave a comment
In our recent bLAWg post on August 20, 2015, we discussed the cancellation of the 2008 federal rule allowing for 17-month Optional Practical Training (“OPT”) extensions for individuals with a degree in a Science, Technology, Engineering, or Mathematics (“STEM”) field.
We also explained how the cancellation does not go into effect until February 12, 2016, and mentioned the expectation of a remedy through the passing of a new administrative rule for continued OPT STEM Extensions.
In line with our prediction, the U.S. Department of Homeland Security has published a proposed rule in the Federal Register: “Improving and Expanding Training Opportunities for F-1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F-1 Students.” The proposed rule, published October 19, 2015, expands upon the 2008 rule in many ways. Some highlights include:
- OPT STEM Extension period lengthened to 24 months
- Eligibility to use prior STEM degree from U.S. institution
- Additional 60 days of unemployment for students in an OPT STEM Extension period
- More clearly-defined STEM fields of study
- Qualifying degree required to be from an accredited institution
- Implementation of mentoring and training programs by U.S. employers
In addition, the proposed rule maintains some aspects of the 2008 rule, such as the requirement for OPT STEM Extension employers to utilize the federal E-Verify system, and the “Cap Gap” provision (i.e. allowing for an automatic extension of an individual’s F-1 status and employment authorization through October 1st pursuant to a timely-filed H-1B petition).
The proposed rule is currently open for notice and comment and has not yet been formalized. Stay tuned for continued updates on the proposed rule.
October 2, 2015 § Leave a comment
On September 30, 2015, Congress passed a bill temporarily funding the government through December 11, 2015 that included a provision to allow the EB-5 Regional Center Program to continue operating until a final resolution is passed, or until December 11, whichever comes first.
EB-5 Regional Center Program
The EB-5 Regional Center Program was first enacted in 1992, with regular renewals up to the present. Under the Program, investors can apply for permanent residency (i.e. a green card) in the U.S. if they:
1) Make an investment of $1,000,000 (sometimes $500,000 depending on the location of investment), in a U.S. based commercial enterprise, and
2) Plan to create at least 10 permanent, full-time jobs for U.S. workers. As opposed to the standard EB-5 Investment Program, in which investors can create their own commercial enterprise, the Regional Center Program allows investors to invest their funds in opportunities (i.e. Regional Centers) approved by the U.S. Citizenship and Immigration Services (“USCIS”) based on proposals promoting economic growth in the U.S. Currently, there are 732 USCIS-approved Regional Centers for EB-5 investors to choose from.
Many investors choose the EB-5 Regional Center Program over creating their own commercial enterprise, as the economic forecasts and job creation documentation are prepared by the Regional Center rather than the foreigner having to do all the work. Therefore, the responsibility for the investor is limited to evidencing his/her investment. Additionally, Regional Centers provide assistance to the EB-5 investor throughout the process, which, in conjunction with a knowledgeable immigration attorney, can simplify and streamline the process for the investor.
Those interested in filing EB-5 petitions under the Regional Center Program should act fast to apply before December 11, 2015. Although another extension of the Program is expected, it is always possible that it will include modifications, such as increased investment thresholds, or be discontinued.
September 29, 2015 § Leave a comment
On September 25, 2015, the U.S. Department of State (DOS) published a revised Visa Bulletin for October 2015. The revised Bulletin replaces the prior-released version, previously issued on September 9, 2015 (discussed in our recent bLAWg post). The U.S. Citizenship and Immigration Services (USCIS) will only be accepting Adjustment of Status (i.e. green card) applications based upon the revised Bulletin.
As with the prior version, the updated Visa Bulletin contains two charts each for employment- and family-based preference categories. The first chart, Application Final Action Dates, which provides the dates when green card applications are eligible for decision, remains unchanged for each category. The second chart, Dates for Filing Applications, which provides the earliest dates when green card applications can be filed, contains changes for both the employment- and family-based categories. An excerpt of the changes is included below:
DATES FOR FILING APPLICATIONS
Many categories have retrogressed (i.e. moved backwards) several years. For example, if you were born in India and have an employment-based third preference (EB-2) I-140 petition approved, pending, or eligible for filing, with a priority date of July 1, 2009 or earlier, you will be eligible to file your green card application as of October 1, 2015. Those with priority dates between July 1, 2011 and July 2, 2009 are no longer eligible to submit applications under the revised Bulletin.
Due to the late-breaking nature of this announcement, many affected individuals are contemplating a lawsuit, which may bring about additional changes to the situation. GoffWilson will continue to keep you informed of any changes that arise.
Also stay tuned for the November 2015 Visa Bulletin, which will be released in approximately 2 weeks and could include increased forward movement.
Contact our office today with any questions.
September 11, 2015 § Leave a comment
In an exciting announcement the U.S. Citizenship and Immigration Services (USCIS) released information regarding revisions for determining visa availability for those waiting to file an adjustment of status (i.e. green card) application. The revisions implement a highly anticipated part of the November 2014 Obama immigration Executive Actions: early green card application filings, which we discussed in our December 1, 2014 bLAWg post.
Starting with the October 2015 Visa Bulletin and going forward, there will be two charts each for employment- and family-based preference category. The first chart, called Application Final Action Dates, provides the dates when green card applications are eligible for decision. The second chart, Dates for Filing Applications, tells you the earliest date when a green card application can be filed. Here is an example:
DATES FOR FILING APPLICATIONS
Although your application will not be eligible for a decision right away, since the Final Action Date for EB-3 India is March 8, 2004, your application will remain pending. While the application is pending, you will be eligible to receive an Employment Authorization Document (EAD card) and Advance Parole Travel Document (AP), and can continue to renew those as long as your application remains pending.
Looking at these charts, if you were born in India and have an employment-based third preference (EB-3) I-140 petition approved, pending, or eligible for filing, with a priority date of July 1, 2005 or earlier, you will be eligible to file your green card application as of October 1, 2015 (i.e. the date the Visa Bulletin goes into effect).
This new Visa Bulletin process will allow DOS to more accurately predict overall visa demand and better determine the appropriate dates for upcoming Visa Bulletins. Additionally, the new process is expected to greatly reduce typical month-to-month fluctuations in the Visa Bulletin. Hopefully this will lead to maximum number of green cards issued to intending U.S. immigrants.
Interested in filing for your green card? Questions on whether you qualify? Need more explanation of what a Visa Bulletin tells us? GoffWilson is here for you! Contact our office today for more information.
August 20, 2015 § Leave a comment
On August 12, 2015, the U.S. District Court for the District of Columbia issued a decision, Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, impacting employees working pursuant to Optional Practical Training (“OPT”) and their employers.
According to the decision, the 2008 immigration rule, which allowed OPT individuals to request a 17-month extension of their OPT status based on having a degree in a Science, Technology, Engineering, or Mathematics (“STEM”) field, was procedurally invalid. The court held that the passage of the rule did not follow mandatory federal administrative rulemaking procedures. Therefore, the court vacated the rule.
Due to the tremendous impact this stands to have on OPT workers and employers, the court stayed the vacatur until February 12, 2016, which means the current rule will remain in effect until that date.
During the next 6 months, the situation is expected to be remedied by the passing of a new administrative rule allowing for continued OPT STEM Extensions. However, if a new rule is not passed prior to February 12, 2016, those currently in the U.S. pursuant to a STEM Extension may be ineligible to continue working. Additionally, those in 12-month OPT status will be ineligible to apply for a 17-month STEM Extension. As of now, individuals are permitted to continue working in OPT status.
Stay tuned for updates on the decision and its impact, as well as the new rule, if and when promulgated. Questions on the decision or interested in moving from OPT to another immigration status? GoffWilson can assist you! Contact our office today.
June 1, 2015 § Leave a comment
Only a few good seats remaining for this informative must-do seminar! Be on top of your game. Register Today!
The half-day seminar is Thursday, June 11th at Two Delta Dental in Concord, NH (breakfast included).
- You want to be current on the latest trends in I-9s.
- You need a refresher. Review new questions, choices, and solutions made in completing I-9s, plus how to correct flawed forms and how to avoid them.
- You have some nagging questions about completing I-9s that you really want answered by the pros.
- Your remote hires, recent merger, potential merger or federal contracts present challenges that can be met following this informative seminar.
- HRCI credit and a certificate are provided to you so you maintain your HR accreditation.
- Knowledgeable speakers and assistants will walk you through real examples and an up-to-date workbook to use as a future reference.
April 20, 2015 § Leave a comment
On April 9, 2015, the Administrative Appeals Office (“AAO”) issued a precedent-setting decision, Matter of Simeio Solutions, LLC, impacting H-1B workers and their employers. According to the decision, a change in the work location of an H-1B worker now requires the filing of an amended H-1B petition with the U.S. Citizenship and Immigration Services (“USCIS”). Previously, H-1B employers were permitted to simply file a new Labor Condition Application (“LCA”) for a change in H-1B work location. Under Simeio, this practice is no longer allowed.
Each amended H-1B filing requires a $325.00 filing fee to the USCIS. Additionally, amended H-1B petitions are subject to the same rigorous scrutiny as any new H-1B petition submission and require the same extensive documentation, such as proof of client contracts for H-1B workers stationed offsite. Furthermore, if the amended petition is approved, the H-1B expiry date will remain the same as the original H-1B. Thus, employers could end up filing multiple H-1B petitions for the same authorized work period. For businesses that require H-1B employees to frequently change work locations, this new rule could mean processing changes and advanced planning for the employers.
It is important to note, however, that a work location change within a normal commuting distance from the location listed in the existing H-1B petition remains unaffected by Simeio. There is no specific measure of distance defining a normal commuting distance—it depends on the circumstances in the individual work location area. Not sure whether you require an amended H-1B petition or other possible ways around this new requirement? The GoffWilson team is here to help. Contact our office today for assistance. Immigration is what we do!