Tag Archives: Roger Tsai

June 24, 2016

Obama’s Immigration Policy Blocked Due to Equally Divided Supreme Court

Tsai_RBy Roger Tsai

A 4-to-4 decision by the Supreme Court on a challenge to President Obama’s immigration reform policy means that the policy continues to be blocked, disappointing five million undocumented immigrants who had hoped to stay and work in our country. The failure of the Court to come to a majority decision leaves a nationwide injunction by a Texas court in place, preventing implementation of the new immigration policy. United States v. Texas, 579 U.S. ___ (2016). The short nine word opinion fails to provide any reasoning for the Court’s decision or establish clear precedent.

DACA and DAPA Programs

At issue is President Obama’s November 2012 and 2014 immigration programs that would allow more undocumented immigrants to apply for the Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs. The pre-existing DACA program granted temporary two-year work permits to 1.2 million young people brought to the U.S. by their parents and remains unaffected. The administration’s new immigration policy sought to expand the DACA program, which allows eligible young people to apply for work permits and deportation deferrals, by increasing the deferral period from two to three years and eliminating the requirement that applicants be under 31 year old. Under the new DAPA policy, which applies to parents of children who are U.S. citizens or lawful permanent residents, undocumented parents would be permitted to stay in the United States for three years and work here legally.

States Sued To Stop Obama’s Immigration Reforms 

Before the President’s policy could go into effect, Texas and twenty-five other states went to court and got an injunction preventing implementation of the policy. The states asserted that the Obama administration did not have the authority to issue new immigration policy, arguing that sweeping immigration policy of this sort must be passed through Congress, not by the executive branch. In early 2015, a federal court in Texas issued an injunction blocking the enactment of the new policy while the legal issues were resolved. An appeals court upheld that ruling, leading to the appeal to the Supreme Court.

Next Steps For Immigration Reform

The federal government has the option of filing a rehearing petition in the Supreme Court, hoping for a different result if, and when, a ninth Justice is seated on the Court. Absent that, the case essentially goes back to the federal district court in Texas for further proceedings on the actual claims in the case. Because that judge had issued the preliminary injunction believing that the states would prevail on their claims, the government will have an uphill battle getting its policy through. In the meantime, the immigration reform is blocked, leaving an estimated five million undocumented workers and their children without relief.

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June 13, 2016

Repeal of Colorado’s Employment Verification Law

Tsai_RBy Roger Tsai

Effective August 10, 2016, Colorado employers no longer need to complete and maintain the state employment verification affirmation form that ensures that new hires are legally eligible for employment in the United States. Gone too will be the state requirement that employers keep copies of the documents provided by new hires to show their employment eligibility and identity in support of the I-9 verification process. Signed into law by Governor John Hickenlooper on June 8, 2016, House Bill 16-1114 repeals the state statutory provisions that duplicated much of the employment verification requirements of the federal I-9 forms.

Legislature Relieves Extra Burden on Colorado Employers

In repealing most of section 8-2-122 of the Colorado Revised Statutes, the Colorado legislature acknowledged that the additional state employment verification affidavit and documentation requirements imposed an extra, redundant burden on employers while doing nothing to further prevent unauthorized individuals from working in our state. With the repeal of the additional state verification requirements, the fines and penalties for failure to comply with those requirements under state law are repealed as well.

Section 8-2-122 does not go away entirely, however, as the legislature kept the provision that permits the director of the Colorado Division of Labor to request documentation from employers to show they are in compliance with the I-9 employment verification requirements. The director, or his/her designee, still may conduct random audits of employers to ensure compliance with I-9 obligations. The legislature also maintained the public policy statement that this statute is to be enforced in a non-discriminatory fashion.

What Colorado Employers Should Do

For new employees hired in the next two months, before August 10, 2016, continue to comply with the Colorado employment verification requirements as well as your federal I-9 obligations.

For new employees hired on or after August 10, 2016, you need only comply with your federal I-9 employment verification requirements. That means newly hire employees must complete and sign Section 1 of Form I-9 no later than the first day of employment, and employers must complete Section 2 of the I-9 and examine evidence of both identity and employment authorization within three business days of the employee’s first day of employment. Federal law does not require you to keep copies of the documents provided by the employee to show identity and employment authorization, but employers may choose to retain these documents at their discretion in case an federal immigration audit occurs.

What should you do with the Colorado employment verification affirmation forms and copies of authorization document for your current employees after August 10th?  Your best practice is to continue to keep those forms for the duration of each employee’s employment since the forms were required at the time you hired them. Once an employee is no longer employed by your organization, you may dispose of the Colorado-specific affirmation forms but continue to retain the I-9 forms for one year after the date employment ends, or three years after the date of hire, whichever is later.

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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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March 21, 2016

STEM OPT Extension Lengthened to 24 Months

Tsai_RBy Roger Tsai

The Department of Homeland Security’s Final Rule governing STEM Optional Practical Training (OPT) places new obligations on employers of F-1 STEM OPT international students and increases the available STEM OPT extension period from 17 to 24 months. As of September 2015, more than 34,000 students were in the U.S. under STEM OPT. Here are the essential highlights of the final rule you’ll need to know.

STEM OPT Extensions 

The initial OPT period is 12 months but the new rule allows qualifying F-1 STEM students to apply for a 24-month extension of the OPT period, replacing the 17-month extension period previously available. When combined with the initial 12-month standard OPT period, the new STEM extension will allow international students to work in the U.S. for up to 36 months after graduation.

New Form I-983 and Formal Training Plans Required

Under the new rule, employers must work in conjunction with each STEM OPT student to prepare and implement a formal training plan that identifies learning objectives and a plan for achieving those objectives. To fulfill this requirement, the student and the employer must complete and sign a new Form I-983 and submit it to the Designated School Official (DSO). The new formal training plan requirement applies to all students applying for STEM OPT after May 11, 2016.

The Form I-983 requires that the student and employer identify the following:

  • duties and assignments that the student will work on during the OPT training, and how such tasks relate to the student’s STEM degree;
  • the specific skills the student is expected to learn or apply during OPT, including goals and a timeline of the training curriculum;
  • how the employer will offer oversight and supervision, which may include how an existing training program or policy achieves the required oversight and supervision; and
  • mechanisms by which the employer assesses whether the person in the OPT position is actually obtaining new knowledge and skills.

E-Verify, Reporting Requirements and Site Visits

The DHS’s final rule places numerous obligations on employers who employ STEM OPT students. In light of the federal lawsuit filed by the Washington Alliance of Technology Workers challenging STEM OPT, these changes are designed to improve the integrity of the STEM OPT program and ensure that U.S. workers are not displaced or adversely impacted. For instance, as part of the Training Plan, the employer must attest the student will not replace a full or part-time, temporary or permanent U.S. worker, and the F-1 employee will be paid a salary commensurate with similarly situated U.S. workers.

First, employers must be enrolled in and remain in good standing with E-Verify. Second, both the student and the employer have reporting requirements, primarily as follows:

  1. validation of student’s employment status six-months after the start of STEM OPT employment;
  2. a self-evaluation requirement by which the student must report to the DSO on his or her progress with the practical training, which must be signed by the employer;
  3. reports on any changes in employment status must be made by both the student and the employer within five days; and
  4. reports to the DSO must be made by both the student and the employer on any material changes to, or deviations from, the student’s formal training program.

Third, DHS has the discretion to conduct employer site visits with 48 hours of notice to verify whether the employer is meeting the STEM OPT program requirements, including that they have the ability and resources available to provide structure and guided work-based learning experiences.

What Happens To Pending I-765 Applications?

The 17-month extension period under the current STEM OPT rules continue in effect through May 9, 2016. Consequently, I-765 Applications for Employment Authorization requesting a STEM OPT extension filed and approved prior to May 10, 2016 will result in a 17-month extension, not the longer 24-month extension available under the new rule.

Students with a 17-month STEM OPT wishing to request the additional seven-month extension will need to file a Form I-765 on or after May 10 but no later than August 8, 2016 with a new Form I-20 and a completed and signed Form I-983 attesting to the training and monitoring plan. Students must have at least 150 calendar days remaining on their 17-month extension prior to filing the Form I-765 requesting the additional seven month extension.

Students with an I-765 application still pending on May 10, 2016 will receive an RFE (request for evidence) from USCIS requesting documentation to establish that the student is eligible for the 24-month extension under the new rule. This will require filing a new Form I-20, endorsed on or after May 10th indicating that the DSO recommends the student for a 24-month OPT extension, and a completed and signed Form I-983 attesting to the training and monitoring plan.

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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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