Tag Archives: immigration

February 1, 2017

Workplace Implications of the President’s Immigration Executive Order

6a013486823d73970c01b8d1be606f970c-120wiBy Roger Tsai

On January 27th, President Trump signed an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” immediately suspending the entry of citizens from Syria, Iran, Libya, Somalia, Yemen, Iraq, and Sudan, as well as the entry of new refugees. Employers with immigrant employees in the affected countries are encouraged to suspend work-related travel into the U.S. for the time being, as they may be unable to enter the U.S. Where possible, immigrant employees currently in the U.S. from the affected countries, even those with valid immigration documentation, such as H-1B visas, should avoid international travel for the next 90 days unless there is more clear indication of enforcement activities, a change to the Executive Order, or court-related clarity.

Who Does The Executive Order Impact?

  • Foreign nationals from the seven affected countries will likely be temporarily prevented from entry at U.S. airports and ports of entry by U.S. Customs and Border Protection for a 90-day period. Similarly, U.S. Embassies abroad are expected to suspend the issuance of temporary nonimmigrant visas and immigrant visas to foreign nationals of the seven countries. The issuance of visas or entry into the U.S. of dual citizens of affected countries will also likely be temporarily suspended. To prevent unnecessary travel, the Department of Homeland Security (DHS) is working with airlines to prevent the selected travelers from boarding international flights. Because the Executive Order also orders DHS to suspend “visas and other immigration benefits” to the citizens of the affected countries, immigrant employees in the U.S. seeking extensions of existing visas through U.S. Citizenship and Immigration Services may potentially be impacted.
  • U.S. permanent residents who are citizens of the affected countries will be allowed to enter the U.S. based on recent updates issued by White House Chief of Staff Reince Priebus and DHS. Initially, the Executive Order only permitted the entry of U.S. permanent residents “when in the national interest” on a case-by-case basis. On January 29th, DHS clarified that lawful permanent resident status will be a dispositive factor in the case-by-case determinations, absent derogatory information indicating a serious threat to public safety and welfare.
  • Newly admitted refugees from any country will be suspended for a 120-day period under the Executive Order. Current employees under refugee status should be permitted to travel internationally but may face additional scrutiny at Customs if they are from the seven affected countries. The entry of new Syrian refugees is indefinitely suspended.
  • Immigrants seeking renewal of their visas through the Visa Interview Waiver Program (VIWP). Previously, the VIWP allowed visitors and other visa holders to renew visas without a consular interview if the immigrant was applying for the same visa category within 12 months of the initial visa expiration. Applicants could simply drop off their application, passport and payment and obtain a renewed visa stamp without undergoing a visa interview. The Executive Order immediately suspends the VIWP and most nonimmigrant visa applicants will be required to attend an in-person interview to renew their visas. The VIWP is separate from the Visa Waiver Program which allows citizens of 38 countries to enter the U.S. as visitors for 90 days without a visa.

Over the course of the next 30 to 120 days, the Department of State and DHS will provide reports to the President regarding the public-security concerns, and we will provide additional alerts as the policy evolves.

April 13, 2016

H-1B Visa Submissions Lower than Expected

Tsai_RBy Roger Tsai

The U.S. Citizenship and Immigration Services (USCIS) received over 236,000 H-1B visa applications for fiscal year (FY) 2017 in the first week of April. That number far exceeds the statutory cap of 65,000 H-1B visas under the general category and the 20,000 visas under the master’s degree cap. But, it is only 3,000 more petitions than were filed last year, and substantially less than many attorneys and employers were expecting. That is good news for H-1B petitioners, who face better odds at roughly 36% selection rates, but is a sign that the tech economy may be plateauing or new increased fees for employers submitting high volumes of applications are taking effect.

Lottery System Used to Select Petitions

U.S. businesses use the H-1B program to employ foreign workers in occupations that require highly specialized knowledge in fields such as science, engineering, and computer programming. On April 9, 2016, USCIS used its computer-generated random selection process, or lottery, to select a sufficient number of H-1B petitions to meet the total 85,000 cap. The agency first conducted the selection process for the advanced degree exemption. All unselected advanced degree petitions then became part of the lottery selection process for the 65,000 general category limit.

USCIS earlier announced that it will begin premium processing for selected H-1B cap cases no later than May 16, 2016. No start date has been announced for regular processing cases, although historically regular processing receipt notices have been issued in May. All unselected petitions will be rejected and returned with their filing fees. 

Not Selected? Consider Alternative Visa Options

If you need to hire foreign professionals but your H-1B visa petition was not selected, you may want to explore other popular alternatives. Consider the following alternative employment visas and options:

  1. Lateral Hire of H-1B Workers. The statutory H-1B visa cap applies only to new H-1B petitions, meaning that employers may be able to hire foreign workers who currently hold H-1B visas through another employer. Current H-1B employees generally may extend their visa status for up to six years and in some cases, even longer. In addition, foreign nationals who previously held H-1B status but are not currently employed in the U.S. are exempt from the annual H-1B cap and may be returned to that status for the rest of their six-year H-1B visa period.
  2. F-1 STEM OPT Extensions. Science, tech, engineering, and math (STEM) graduates may apply for an extension to their one year Optional Practical Training (OPT). The extension period soon will be increased from 17 to 24 months. The 17-month extension period under the current STEM OPT rules will apply to applications filed through May 9, 2016, but I-765 Applications for Employment Authorization filed after May 10, 2016 may seek the longer 24-month extension available under the new rule. F-1 employers must participate in E-Verify in order for the STEM graduate to be eligible for this extension.
  3. TN Visa. The TN visa is a three-year nonimmigrant visa for Canadian and Mexican citizens and authorizes the individual to work and live temporarily in the U.S. Almost all TN positions require a Bachelor’s degree except for a Scientific Technician or Management Consultant position, but unlike the H-1B, there is no numerical limitation to the number of TN visas issued. TN nonimmigrant workers must show that they will be working in one of sixty TN approved occupations, such as nurses, attorneys, engineers, management consultants, and scientific technicians. 
  4. E-3 Australian Specialty Occupation Visa. An E-3 visa allows Australian citizens to enter the U.S. for a two-year period to work in a specialty occupation, which is defined as any position which normally requires a Bachelor’s degree in a specific major or concentration (i.e. engineer, nurse, scientist, software developers, and accountants). Solely managerial or sales roles do not qualify as specialty occupations. E-3 visas are limited to 10,000 per year.
  5. L-1B Specialized Knowledge Worker Visa. Workers who currently are outside the U.S. working for a foreign parent or subsidiary company related to a U.S. company and who have done so for at least one out of the last three years may qualify for the L-1B intercompany transfer for specialized knowledge workers. The individual must hold specialized knowledge which is distinguished from knowledge held by others in the company and industry.
  6. F-1 Student Status. Non-U.S. citizens may choose to return to school and change their status to F-1. Depending on his or her degree program, the international student’s office may allow the individual to work off-campus part time under Curricular Practical Training. Students should contact their university’s international student’s office for additional information.

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May 12, 2015

H-1B Visa Applications Hit Record 233,000 In First Week

Tsai_RBy Roger Tsai 

Nearly 233,000 H-1B applications were filed with the U.S. Citizenship and Immigration Services (USCIS) in the first week of April. With only 85,000 H-1B visas available, nearly two-thirds of all applications will be rejected. 

USCIS Lottery to Select Petitions 

By statute, the number of H-1B visas is capped at 65,000 under the general category, with an additional 20,000 for applicants with advanced degrees. After the filing period began on April 1, USCIS received almost 233,000 H-1B petitions – almost three times the cap. To determine which applications will be accepted, USCIS uses a computer-generated lottery system. 

Beginning April 13, USCIS first conducted the random selection process to fill the 20,000 advanced degreed visa allotment. Any advance degree petitions not selected in that lottery were put into the general lottery and became eligible for random selection for the 65,000 general H-1B visas. USCIS then began issuing receipt notices for premium processing cases from April 27th to May 11th. We estimate receipt notices for H-1B petitions filed under regular processing will be issued between mid-May to mid-June. All unselected applications will be rejected and returned to the petitioner along with their filing fees. 

Exempt Petitions Still Accepted 

Certain petitions that are exempt from the cap will continue to be accepted and processed. This includes petitions for current H-1B visa holders who previously were counted against the cap. It includes petitions: 

  • to allow current H-1B workers to change employers
  • to work concurrently in a second H-1B job
  • to change the terms of a current H-1B worker’s employment, and
  • to extend the amount of time a current H-1B worker is permitted to stay in the United States. 

Time to Raise the Cap? 

With record numbers of applications for H-1B visas being filed each year, many organizations believe Congress needs to raise the cap. U.S. businesses, including many high tech companies, who need to hire foreign workers for their science, engineering and computer programming positions are often frustrated when visa applications greatly exceed the cap, leaving their ability to hire highly skilled immigrants up to chance due to the random lottery process. 

According to estimates from Compete America, a coalition representing universities, trade associations and technology industry leaders like Microsoft, Google, Amazon and Facebook, U.S. businesses lose about 500,000 jobs each year because of the visa caps. The organization asserts that for every scientist and engineer who doesn’t get to work in the U.S. because of the visa cap, an additional four jobs for U.S. workers are lost. They argue that the restraint on hiring highly skilled foreign workers limits economic growth and innovation.

Earlier this year, Senator Orrin Hatch, R-Utah, introduced the Immigration Innovation Act of 2015 (also called the I-Squared Act) which would raise the H-1B visa cap to 195,000 annually. Critics of the bill argue that U.S. colleges are graduating more scientists and engineers than can find work in their respective fields each year, so businesses should be looking to hire U.S. citizen graduates rather than foreign guest workers. Opponents also assert that H-1B workers lower the wages in technology and science fields. Given the current political climate in Washington, it is unlikely that the I-Squared Act, or other immigration reform bills, will pass anytime soon.

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September 25, 2014

Colorado Employers Must Use Updated Employment Verification Form Beginning October 1, 2014

Collis_SBy Steve Collis 

The Colorado Department of Labor and Employment (CDLE) recently updated the form that employers must use to comply with the Colorado Employment Verification Law, C.R.S. § 8-2-122.  The new Affirmation of Legal Work Status form must be used for all Colorado employees hired on or after October 1, 2014. 

Form Must Be Completed Within 20 Calendar Days 

The updated form does not differ greatly from previous versions of the Colorado employment verification form.  It does, however, clarify that the form must be completed within 20 calendar days after each new employee is hired.  (The prior form specified that it must be completed within 20 days, but did not specify  whether it was calendar days or business days.)  The new form is available on the CDLE’s website in a fillable PDF format . The revision date on the new form is 09/01/14 with an expiration date of 10/01/17. 

Complying with Colorado’s Employment Verification Law 

Colorado’s Employment Verification Law has been in effect for over seven years, yet many employers remain confused because it differs from federal employment verification requirements. Key details for employers to know in order to comply with Colorado’s law include: 

  • All private and public employers with employees in Colorado must comply with the Employment Verification Law;
  • Use of the Affirmation of Legal Work Status form provided by the CDLE is mandatory;
  • Electronic copies of the affirmation form are acceptable;
  • Employers must make and keep copies of the identity and employment authorization documents used to complete federal Form I-9 for each newly hired employee (Note: this differs from federal law, which does not require employers to retain copies of the identity and authorization documents);
  • Employers may complete the form before the person begins work as long as he/she has been offered and has accepted the job; it may not, however, be used as a pre-screening tool;
  • Employers must retain copies of the affirmation forms and supporting documents for as long as the employee is employed;
  • Employers do not need to submit the forms and documents to the CDLE unless specifically requested; and
  • Compliance with federal Form I-9 or E-Verify requirements is not a substitute for complying with Colorado’s Employment Verification Law. 

The new affirmation form is prefaced with two pages of instructions that offer employers an overview of the Colorado Employment Verification Law as well as instructions regarding how to complete the form.  In addition, the CDLE has updated its Fact Sheet and provided Frequently Asked Questions regarding the Employment Verification Law to help guide employers through the process.  These documents are available on the CDLE website on its Employment Verification Law page.  

Penalties for Non-Compliance 

Fines for failing to complete and retain the required Colorado affirmation forms and copies of new hire identification and authorization documents can mount up quickly.  An employer who, with reckless disregard for the law, fails to comply may be subject to a $5,000 fine for the first offense and up to $25,000 for any subsequent offenses.  The CDLE conducts random audits of Colorado employers and will audit employers upon receipt of a complaint.  Employers should keep their verification documents organized and readily available in case the CDLE requests to examine verification records to determine compliance. 

If in Violation, Don’t Correct—Comply Going Forward 

The CDLE advises that if an employer has not properly completed the affirmation form within 20 calendar days of hiring a new employee or has failed to keep copies of the identification and authorization documents, the employer should not complete the form after the 20-day period has expired.  The CDLE states that backdating or entering false information on the form could result in further fines, depending on the circumstances.  Instead, employers should comply with the Employment Verification Law going forward and properly complete the mandatory forms and retain the necessary documents for all future new hires.  

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July 29, 2014

Options for Hiring Foreign Workers After H-1B Visa Rejection

Tsai_RBy Roger Tsai 

The U.S. Citizenship and Immigration Services (USCIS) received about 172,500 H-1B petitions this April for the annual allotment of 85,000 H-1B visas (65,000 in the general H-1B category and 20,000 for those with advanced degrees) to be issued this fiscal year.  Businesses use the H-1B Visa program to employ foreign citizens to work in the U.S. in highly specialized fields, such as engineering, science and computer programming.  When the number of petitions exceed the cap, as they do many years including this year, USCIS uses a random, computer-generated lottery to select the petitions that will be processed.  Those petitions not randomly chosen are  returned to the submitting employer along with the filing fees. 

If you need to hire foreign professionals but your H-1B visa petition was not selected, all is not lost.  Numerous alternatives exist that may provide you with the means to hire the specialized foreign workers you need. Consider the following alternative employment visas: 

  1. F-1 OPT STEM Extensions. Science, tech, engineering, and math (STEM) graduates may apply for a 17 month work permit to extend their one year Optional Practical Training (OPT).  The graduate must have applied for the 17 month OPT by filing an I-765 Application for Employment Authorization, which typically takes three months to process.  You, as the employer, must participate in E-Verify in order for the STEM graduate to be eligible for this extension. 
  2. TN Visa.  The TN visa is a three year nonimmigrant visa for Canadian and Mexican citizens and authorizes the individual to work and live temporarily in the U.S. Each TN nonimmigrant worker must demonstrate that he or she will be working in one of sixty TN approved occupations. Occupations include but are not limited to nurses, attorneys, engineers, management consultants, and scientific technicians.  Almost all TN positions require a Bachelor’s degree except for a Scientific Technician or Management Consultant position. Unlike the H-1B, there is no numerical limitation to the number of TN visas issued.  
  3. E-3 Australian Specialty Occupation Visa.  This visa allows Australian citizens to enter the U.S. for a two year period to work in a position that qualifies as a specialty occupation. Specialty occupations are defined as any position which normally requires a Bachelor’s degree in a specific major or concentration (i.e. engineer, nurse, scientist, software developers, and accountants).  Roles which are solely managerial or sales do not qualify as specialty occupations.  E-3 visas are limited to 10,000 per year. 
  4. L-1B Specialized Knowledge Worker Visa.  If the worker is currently outside the U.S. working for a foreign parent or subsidiary company related to a U.S. company and has worked for the foreign company for at least one out of the last three years, he or she may qualify for the L-1B intercompany transfer for specialized knowledge workers. The individual must hold specialized knowledge which is distinguished from knowledge held by others in the company and industry. 
  5. Lateral Hire of H-1B Workers. The H-1B visa cap applies only to new H-1B petitions.  Consequently, employers may be able to hire foreign workers who currently hold H-1B visas through other employers.  Current H-1B employees typically can extend their visa status for up to six years and in some cases, even longer.  In addition, foreign nationals who previously held H-1B status but are not currently employed in the U.S. are exempt from the annual H-1B cap and may be returned to that status for the rest of their six-year H-1B visa period. 
  6. Dependent status. Individuals whose spouse is in the U.S. under F-1, TN, L-1, H-1B or another nonimmigrant status may choose to change to the correlating dependent status (F-2, TD, L-2, H-4) which will allow them to remain in the U.S. but not to work.  To apply for this change of immigration status, the individual must submit an I-539 Application to Change or Extend Status to USCIS.  This typically requires a three month processing time. 
  7. F-1 Student status.  Non-U.S. citizens may choose to return to school and change their status to F-1. Depending on his or her degree program, the international student’s office may allow the individual to work off-campus part time under Curricular Practical Training. Students should contact their university’s international student’s office for additional information. 

Explore Visa Alternatives To Meet Your Employment Needs 

While not an exhaustive list, these are some of the available options that may help you employ the degreed, specialized workers your business needs.  If your H-1B petition wasn’t selected under the cap, consider whether one or more of these alternatives applies.  As always, please feel free to consult us with your immigration and visa questions.

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March 17, 2014

Beat the H-1B Visa Cap By Filing On April 1, 2014

By Roger Tsai 

The U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B visa applications on Tuesday, April 1, 2014 and it is expected that USCIS will receive more than 140,000 petitions for the 85,000 available H-1B visas.  

H-1B Visa Cap Likely to be Reached in First Week 

The number of available new H-1B visas is limited to 65,000 bachelor degreed positions and 20,000 advanced degree positions.  This applies to an immigrant employee who will fill a specialty occupation in the U.S., which is defined as any position with the minimum requirement of a Bachelors degree in a specific major or the equivalent experience.  For example, H-1B specialty occupations include a wide range of high-tech, medical and managerial professionals (i.e., operations engineers, engineering managers, or accountants). The USCIS will accept three-years of experience for each year of education omitted.  If the immigrant employee has a non-U.S. university degree, USCIS requires a third-party educational evaluation. 

An additional 20,000 visas are set aside for graduate degreed positions.  This applies to non-U.S. citizen employees who have obtained a U.S. master’s degree or higher. 

The statutory H-1B cap of 65,000 for the fiscal year will likely be met within the first week of the filing period, which begins on April 1, 2014.  All applications received by the USCIS in the first week of April will be entered into the lottery.  Last April, USCIS received approximately 124,000 H-1B petitions during the filing period and reached the cap within the first five days of accepting petitions.  When it receives more petitions than the cap allows, USCIS uses a computer-generated random selection process known as the “lottery” to select a sufficient number of petitions to fill the 65,000 Bachelor degreed positions and the 20,000 advance degreed positions.  Immigrant employees with a U.S. Masters degree will have an opportunity to be selected under the 20,000 advanced degree cap. This year, the continued economic recovery is causing immigration practitioners to expect even more petitions to be submitted than last year, likely in the range of 130,000 to 150,000. 

H-1B Visa Petition Process 

Employers seeking an H-1B visa for a foreign worker to start work on or after October 1, 2014 should submit their H-1B visa petition as close to April 1, 2014 as possible, but no later than the first week of the filing period.  The petition process includes submitting the following to USCIS: 

1.  All sections of the Form I-129, Petition for a Nonimmigrant Worker, including the H Classification Supplement  and the H-1B Data Collection and Filing Fee Exemption Supplement; and

2.  A signed check or money order with the correct fee amounts (H-1B filing fees, payable to the federal government, are $2,325.00 per petition; and additional $1,225.00 can be paid to expedite the processing time). 

Petitions not selected in the lottery will be rejected and the petition and filing fees will be returned to the employer.  Unfortunately, rejection means that the company may not employ the non-U.S. citizen individual that year and the affected foreign national may need to leave the U.S. 

For accepted petitions, the processing time typically is three to five months, unless the employer submitted a $1,225 expedite fee which reduces the processing time to 15 calendar days.  Upon approval, USCIS will issue an I-797 Approval Notice which authorizes the immigrant employee to begin work immediately. 

Prepare to File At Earliest Date 

To increase your chances of acceptance of your H-1B petitions, plan to get your petitions to USCIS on April 1, 2014, the first day of filing.  Completing the forms takes some time and requires the employer to attest to certain salary requirements and conditions of work.  This means that you must gather the necessary salary, working conditions and other information to get your documents in order now. You have just two weeks before the filing period begins so get your petitions ready. 

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