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Each quarter, the Department of Labor publishes statistical data about the applications and certifications it adjudicates as a preliminary step in employment-based immigration petitions.  Applicants for H-1B’s, H-2A’s, H-2B’s, and employment-based green cards that require a test of the U.S. labor market, must all obtain various certifications from the Department of Labor before they can submit their petition to the USCIS.  The most recent data for employment-based green cards is shown below:

This is the data for the Permanent Labor Certification Program, otherwise known as PERM.  Filing the PERM application with the Department of Labor is the first step in the employment-sponsored green card process, for those categories of applicants that require the employer to test the U.S. labor market as a prerequisite to sponsoring a foreign national for a green card.  To test the labor market for professional positions, an employer is required to post Notice in-house, place two Sunday ads in the local major newspaper, place a 30-day ad with the state workforce agency, and take three additional recruitment steps. These three additional steps could include: running an ad on their own website, placing an ad with an internet job search,  using an employee referral program with incentives, attending job fairs, using on-campus recruiting, using private employment firms, running an ad in a local or ethnic newspaper, or running ads on radio or TV.  The purpose of the recruitment is to see if there are qualified U.S. workers available for the particular job being offered.

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iStock_000000692344SmallSome Silicon Valley employers preparing to file new H-1B petitions on April 1st may be shocked by the filing fees, extraordinarily high for some employers.  The Consolidated Appropriations Act, 2016, raised the supplemental fees from $2000 to $4000 for employers who have at least 50 employees, and at least 50% of their workforce is in H-1B or L-1 status. These employers could see their total USCIS filing fee be as high as $7550 per employee.

The USCIS filing fee range for new H-1B petitions will range from $1575 to $7550.  Determining USCIS filing fees requires employers to closely scrutinize the Filing Fees chart on the USCIS website. This chart sets out which fees apply to which employers, which is then followed by a list of Exceptions to these filing fees.

Here’s how the math works out for employers who will be filing cap-subject petitions on April 1st.  Employers should note that not all fees are applicable when an employer files an H-1B extension, an amended H-1B, and when an employer is cap-exempt.

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April the first, Fool's day, on table calendarMany Silicon Valley employers know that in order to secure one of the coveted H-1B slots in this year’s immigration H-1B lottery, they must take all the necessary steps to assure that their H-1B petitions are received by the United States Citizenship and Immigration Service between Friday April 1, 2016 and Thursday April 7, 2016.  All cap-subject H-1B petitions submitted within that short window will be counted in this year’s H-1B lottery.  By law, only 65,000 new H-1B’s are permitted each year, with an additional 20,000 H-1B’s available only to foreign nationals who have obtained a U.S. Master’s degree or higher.   Last year, the USCIS received over 3x as many applications as there are slots.

Aside from making sure that the H-1B petitions are ready to be FedExed on March 31st, an employer’s careful preparation must account for the additional timing of filing the required Labor Condition Application.  Before an employer can submit the H-1B petition, they must FIRST obtain a certified Labor Condition Application from the Department of Labor.  Even if accepted into the lottery, the USCIS will reject or deny an H-1B petition that does not include a certified Labor Condition Application.  Buried amid the endless scroll of H-1B instructions on the USCIS website is a little “Note” that “encourages petitioners to keep Department of Labor LCA processing times in mind when preparing the H-1B petition and plan accordingly.”  The USCIS does not indicate how long this processing time is, but instead provides a link to the Department of Labor’s Office of Foreign Labor Certification.  Clicking through to the “H-1B, H-1B1 and E-3” page leads to a long-scrolling web page that explains that the Department of Labor reviews LCA’s within seven working days for completeness and any obvious errors.  This law office just had an LCA certified within five working days of submitting it.  Last year, closer to the end of March, it took nine day – or seven working days.   However, employers need to take into account that it can actually take LONGER than seven business days if the Department of Labor does not recognize the employer’s Federal Employer Identification Number.  The timing to obtain a certified LCA means that employers cannot afford to wait until the very end of March to start on their H-1B petitions.

As an immigration lawyer for the past fifteen years, I’ve occasionally had employers ask if we could file the H-1B petition a couple days earlier than March 31st just to “make sure” it gets there on time.  No. There is no “filing early” for the H-1B lottery.  In fact, doing so would be disastrous.  If the USCIS received an H-1B petition on March 31st, with a start date of October 1st, they will send it back to the employer as improperly filed because a petition cannot be submitted more than six months before the requested start date.  And, an employer is likely to receive this returned petition in the mail some time after the April 7th filing window.

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US VisaSilicon Valley employers need to get started now in order to take advantage of the next H-1B filing window.  Like last year, new H-1B petitions must be received at the USCIS between April 1, 2016 and April 7, 2016.  The H-1B visa allows employers to sponsor foreign workers in specialty occupations. This is an occupation that requires the theoretical and practical application of a highly specialized body of knowledge, for which attainment of a U.S. bachelor’s degree or higher is a minimum requirement for entry into the occupation. These are occupations such as engineers, scientists, architects, accountants, doctors, lawyers, business persons, and teachers.

By law, there is an annual cap of 65,000 new H-1B visas, plus an additional 20,000 available for foreign workers who obtained a Master’s degree or higher, from a U.S university. This annual cap means H-1B visas run out every year, and the new batch of 65,000 (plus 20,000 Master’s cap) H-1B visas are not available until the next Fiscal Year. The USCIS Fiscal Year runs from October 1st through September 30th. The earliest that an employer can apply for an H-1B visa is six months prior to the foreign worker’s anticipated start date. This means that employers wishing to obtain one of the new H-1B visas for FY2017 can file starting April 1, 2016 (six months before the anticipated start date).

Last year, the USCIS received approximately 233,000 H-1B petitions during the first five business days beginning April 1, 2015. This was a 35% increase from Fiscal Year 2015, when the USCIS received approximately 172,500 H-1B petitions.  When the USCIS sees that it receives more than 65,000 petitions during the first few business days of April, it conducts a lottery to select the H-1B petitions to be counted that year. For the lottery, the USCIS collects all petitions for new H-1B visas submitted within the first FIVE business days. The USCIS will first select the 20,000 Master’s cap petitions. Any Master’s cap petitions not selected at that stage will have another opportunity to be selected when the remaining 65,000 are drawn.  It is important to note that an employer cannot file their H-1B petition earlier than April 1, 2016.
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lawsuit form01-26-2016  Last week two former Disney employees sued Disney and two global consulting companies, claiming that Disney and the companies illegally conspired to violate the H-1B visa regulations by replacing U.S. workers with H-1B workers. The Complaint alleges that the two consulting companies, Cognizant and HCL, were the employer sponsors for the H-1B visas for the foreign workers. Presumably, Cognizant and HCL has contracts with Disney to place their workers with Disney to work on various projects. The Plaintiffs allege that in October 2014, between 200-300 Disney employees in the IT department were told that they would be fired on January 30, 2015, but that they had 90 days to train the H-1B visa holders and their replacements.

The H-1B is one of the most regulated visa petitions. Before filing an H-1B petition with the USCIS, an employer must first submit a Labor Condition Application to the Department of Labor, and obtain a certification of it. The Labor Condition Application includes attestations that: (1) the employer will pay the H-1B worker the HIGHER of either the actual wage paid the employer to other workers in the same job with similar experience and qualifications, or the wage that the Department of Labor says is the wage for that job with similar experience and qualification, in the same geographic area; (2) the H-1B workers will not adversely affect the working conditions of workers similarly employed; (3) there is no current strike, lockout, or work stoppage; and (4) Notice of the employer filing the Labor Condition Application has been provided to all workers in the same occupation.

An employer who is considered “H-1B Dependent” must make additional attestations to the Department of Labor when they submit the Labor Condition Application. For companies with more than 51 U.S. employees, they are considered to be “H-1B Dependent” if 15% or more if the U.S. workforce is in H-1B status. An “H-1B Dependent” employer must attest that: (1) they will not displace any similarly employed US worker within the period 90 days before the H-1B petition is filed up until 90 days after the petition is filed; (2) they will not place any H-1B worker at a third-party worksite unless the H-1B employer firsts makes a bona fide inquiry as to whether the employer has displaced or intends to displace any similarly employed US worker with the same 180 window as above; and (3) that the employer made good faith steps to recruit U.S. workers for the job, offering compensation at least as high as what is required to offer the H-1B worker. HOWEVER, these additional attestations DO NOT apply if the H-1B worker will be paid at least $60,000 annually, or if the worker has attained a master’s degree or higher in a field related to the employment.

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iStock_000021640436Small.jpg Starting May 26, 2015, certain spouses of H-1B nonimmigrants will become eligible to apply for employment authorization. Currently, spouses and unmarried minor children of H-1B nonimmigrants, who hold H-4 status, are not eligible for employment authorization. The H-1B is a work visa for professionals to work in specialty occupations. Unlike other work visas, such as the L-1 (intracompany transferee) or E visa (treaty-trader or treaty investors), spouses of H-1B visa holders who hold H-4 status, are not eligible to apply for employment authorization.

When an employer sponsors an H-1B worker for a green card, the H-1B worker may be approved for the work visa but still have to wait years before being able to complete the final step in obtaining their green card. Only after the H-1B worker, and their spouse, submit applications for the final stage of the green card process, is the spouse first eligible to work in the U.S. During these years of waiting to complete the final stage, the H-1B spouse in H-4 status is not eligible to work.

Starting May 26, 2015, eligible individuals will include those H-4 spouses of H-1B nonimmigrants who:

1. Are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker, or
2. Have obtained extensions in their H-1B status beyond the six-year limit in H-1B status, pursuant to section 106(a) and (b) of the American Competitiveness in the Twenty-first Century Act of 2000, as amended by the 21st Century Department of Justice Appropriations Authorization Act.

These “Acts” are provisions that allow H-1B workers to obtain H-1B extensions beyond the regulatory six-year cap on H-1B status, because their employer applied for an employment-based green card on their behalf early enough to be eligible to apply for further extensions. Essentially, if an H-1B worker is the beneficiary of an approved employment-based immigrant petition, of if an employer started the employment-based green card process early enough so that the H-1B worker is now obtaining H-1B extensions beyond the sixth year, then the H-4 spouse can apply for employment authorization. Under the new rule, eligible H-4 spouses will file Form I-765, Application for Employment Authorization, with supporting evidence and the USCIS filing fee.
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iStock_000000692344Small.jpgThe five-day window for the 2015 H-1B cap season is just over a month away, and this is the time for employers to make decisions on processing their cap-subject petitions. The H-1B petition has the highest filing fees per petition, of all the nonimmigrant visa options. The USCIS filing fee for an initial H-1B petition comes to $1725 for employers with 25 or less full-time equivalent employees, and $2475 for employers with more than 25 full-time equivalent employees. These filing fees are comprised of:

  1. The regular USCIS filing fee of $325;
  2. A $500 Fraud Prevention and Detection fee, authorized by the H-1B Visa Reform Act of 2004; and
  3. Either an additional $750 or $1500 fee (depending upon whether the employer has more than 25 full-time equivalent employees) for the American Competitiveness and Workforce Improvement Act of 1998, which was increased and made permanent with the H-1B Visa Reform Act of 2004.

There is yet an additional $2000 fee for employers who employ more than 50 employees in the U.S., if more than 50% of employees are in either H-1B, L-1A, or L-1B status.
These are the REQUIRED fees to submit an H-1B petition. This mean that it can costs employers up to $4475 just in the required filing fees for each H-1B application.

The premium processing fee is an ADDITIONAL $1225 for the USCIS to adjudicate the petition within 15 days. As an immigration lawyer, I have often explained to employers that premium processing does not necessarily increase the odds of a petition being selected for the lottery. In fact, because of the H-1B cap lottery, premium processing works a little differently in this context. The 15-day count does not begin until AFTER the lottery petitions are selected. Last year, the 15-day premium processing count did not begin until April 28, 2014.

Even when a cap-subject case is selected in the lottery, and approved, the foreign-national employee does not start working in H-1B status until October 1st. So what would be the benefit of paying the premium processing fee and having the petition approved as early as March? One answer is that the foreign-national – and often the employer as well – just want to know the outcome of their petition so that they can plan accordingly. Although there are restrictions on which fees an employee can pay, many employees are willing to pay this additional fee so that they have peace of mind moving forward.
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iStock_000019093513Small.jpgMost foreign students graduating from a U.S. University this Spring will want the opportunity to stay in the U.S. and put their new knowledge and skills to the test by working for a U.S. employer. For students with an employment offer, their future employers can sponsor them for an H-1B if the employment is in a specialty occupation and if obtaining the requisite degree will qualify the student to work for the employer.

One of the many challenges that can arise with the H-1B process is with timing, of course. As we’ve explained above, there is an annual cap of 65,000 new H-1B visas, plus an additional 20,000 available for those who obtained a Master’s degree or higher, from a U.S university. Every year for the past several years, there has been much more demand than 85,000. Therefore, the USCIS conducts a lottery for the H-1B’s allocated for the upcoming fiscal year. The earliest that an employer can enter the H-1B lottery is April 1st. This means that employers who want to get one of these 85,000 new H-1B’s for a new worker must apply at the very beginning of April, and only those H-1B petitions received the first five business days starting April 1st will be counted in the lottery.

One of the many timing challenges that can arise is when the foreign student will not have their final University degree conferred by the time the H-1B application must be submitted on April 1st. All H-1B petitions must be “approvable when filed”. This means that the potential employee – the foreign student – must have been eligible for H-1B status at the time the H-1B application is submitted on April 1st, and NOT October 1st when the foreign student would actually be able to start working in H-1B status. To qualify for an H-1B visa, the proposed employment must be in a “specialty occupation”. A “specialty occupation” is one that requires the theoretical and practical application of a highly specialized body of knowledge, for which attainment of a U.S. bachelor’s degree or higher is a minimum requirement for entry into the occupation. So if the potential employee has not yet attained their University bachelor’s degree at the time the H-1B petition is filed, then the H-1B petition runs the risk of being denied for not being “approvable when filed”.
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Our country’s own laws provide for people fleeing persecution in their own country, to apply for asylum upon their arrival to the U.S. The most vulnerable people, who are unable to avail themselves of the protections of their own country because of persecution, or a well-founded fear of persecution, on account of their race, religion, nationality, membership in a particular social group, or political opinion, can seek asylum in the U.S. Providing a haven for those attacked and in danger, on account of their race, their religion, their nationality, their particular social group, or their political opinion, is at the core of our American values. Yet since July 2014, Central American mothers and children seeking asylum have routinely been locked up while awaiting their asylum hearings.

The mothers, as with all undocumented people apprehended at the border, are subject to removal unless they can show “credible fear” of persecution in their home country during the initial screening. Once they establish “credible fear”, they will have an opportunity to present their claim to an immigration judge in removal proceedings. Once the mothers establish “credible fear”, there is a significant possibility that they will be granted asylum. Between the initial screening and the immigration court procedure, it is in the Immigration and Customs Enforcement (ICE’s) discretion to release the mother and children if it is determined that she is likely to appear for her immigration court hearing and if it is determined that she is not dangerous. When asylum seekers are deemed to not be a flight risk, and are not dangerous, they are typically released and stay with family until their immigration court hearing. But instead of considering the factors based on each mother’s situation, ICE has been following a general policy of detaining Central American mothers and their children to serve as a deterrent to other would-be asylum seeker in Central America.

Yesterday, a Federal District Judge ruled that Central American mothers and children who are here seeking asylum, cannot be detained for the purpose of deterring future immigration. The court’s ruling means that ICE cannot continue to uniformly lock up mothers and children without first making that individualized determination as to whether they are dangerous, and whether they pose a flight risk.
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iStock_000004765140Small.jpgToday the USCIS announced that it Will NOT start accepting new, expanded DACA applications tomorrow. This announcement comes after yesterday’s Federal District Court’s grant of a temporary injunction, blocking the implementation of the expanded DACA and DAPA.

Department of Homeland Security Secretary Jeh C. Johnson announced that he “strongly disagrees” with the Court’s decision, but that they must comply with the ruling. Accordingly, the USCIS will NOT begin accepting expanded DACA applications tomorrow, as originally planned. Furthermore, the USCIS is also suspending plans to accept DAPA requests in May.

The White House has also weighed in on this decision, stating that it was wrong and that the Department of Justice is going to appeal it. The White House states that “The Department of Justice, legal scholars, immigration experts, and the district court in Washington D.C. have determined that the President’s actions are well within his legal authority.”

This District Court ruling, while not a surprise, comes as a blow to the Obama administration’s immigration overhaul plan. The expanded DACA, for people who came to the U.S. before turning 16, and the new DAPA program for parents of U.S. citizens and U.S. permanent residents, was estimated to benefit millions of people who have been living in the U.S. for years. While it was not going to provide legal immigration status, it would have provided employment authorization for three years.

Beyond politics, the ruling is truly a blow to millions of people who have called the U.S. their home since they were children. As an immigration lawyer, I think about the people whom I have seen benefit from the current DACA program, such as a young single mother who was able to get a better-paying job once she had employment authorization, and is now able to provide for her family and even seek higher education. There are millions of others like her, who would benefit from the expanded DACA, who were brought to the U.S. as children and who were waiting for their opportunity to apply on February 18th. They will continue to wait.
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