Changes Ahead for H-1B Cap Season

Next year, U.S. Citizenship and Immigration Services (USCIS) is likely to implement its new electronic H-1B cap registration process, and the H-1B cap season as we know it will end. No longer will employers and attorneys be required to prepare entire petitions for every case submitted in the lottery.

DHS Announces That It Will Issue 30,000 Additional H-2B Visas in Response to High Demand

After a tumultuous filing period for the second half of fiscal year (FY) 2019, employers that rely on H-2B seasonal workers received some good news. The U.S. Department of Homeland Security (DHS) has agreed to issue up to 30,000 additional H-2B visas for the second half of FY 2019, which runs through September 30, 2019.

BALCA Decision Serves as Cautionary Tale on Recruitment Requirement

On December 29, 2016, the Board of Alien Labor Certification Appeals (BALCA) issued its decision in the Matter of Unisoft International, Inc., d/b/a SMA (“the Employer”), sending a signal to employers concerning their burden of responsibility during a recruitment process and the good-faith efforts that would be expected in order for them to demonstrate compliance with those requirements. In its decision affirming denial of certification, BALCA clearly placed “the burden of follow-up” on the employer, rather than the applicant in situations where “subsidiary requirements” for a job are not present in a resume, and further stated that the employer should have conducted a closer analysis as to whether on-the-job training options could have allowed U.S. applicants to meet the required qualifications for certain skills.

Severe Delays at USCIS Create Need for Nimble Approach by Employers

U.S. Citizenship and Immigration Service (USCIS) service centers are experiencing severe delays in processing immigration cases due to an overwhelming backlog. USCIS has not publicly identified the cause of the delays or offered an explanation, but the situation is causing problems for many employers.

DHS Issues New Regulations for Certain Highly Skilled Workers

On Friday, January 15, 2016, the U.S. Department of Homeland Security published a final rule—Enhancing Opportunities for H–1B1, CW–1, and E–3 Nonimmigrants and EB–1 Immigrants—in the Federal Register. The new regulations, which will go into effect on February 16, 2016, apply existing rules to additional, similar visa categories, and are intended to benefit highly skilled workers and CW–1 nonimmigrant workers.

A Potential Federal Government Shutdown: The Immigration Implications for Employers

Congress has until September 30, 2015 to reach an agreement on the 2016 Fiscal Year federal budget. If an agreement to fund the federal government is not reached, immigration processes are expected to be impacted as they were in the shutdown that occurred in October of 2013. Some federal agencies that rely solely on government funding would not be able to provide most services. Agencies that receive funding from fees or other government sources are expected to remain open, but they will probably experience service delays.

Advertising Requirements in PERM—A Survey of BALCA’s Application of 20 CFR § 656.17(f)(7)

The U.S. Department of Labor’s (DOL) permanent labor certification (PERM) program requires employers to conduct specific recruiting activities to test the labor market before filing an application. The regulation at 20 CFR § 656.17(f) sets forth the advertising requirements, which also apply to the Notice of Filing (NOF). This includes the requirement at section 656.17(f)(7) that the ads “[n]ot contain wages or terms and conditions of employment that are less favorable than those offered to the alien.” The DOL’s Board of Alien Labor Certification Appeals (BALCA) has come to rely on this section to uphold denials of certifications in a variety of factual situations where the agency speculates that more detail may have generated more or less interest in the open positions.

OIG 2015 Plan Focuses on ICE’s Business Selection Process for I-9 Investigation

As part of its 2015 fiscal year Annual Performance Plan published on October 1, 2014, the Department of Homeland Security’s (DHS) Office of Inspector General (OIG) will review the approach of Immigration and Customs Enforcement (ICE) to I-9 inspections. Specifically, it will “determine whether ICE has effective policies and practices to identify and select businesses for I-9 inspections and re-inspections.”

EB-2 India Retrogresses Significantly in November

As predicted in the August/September 2014 issue of the Immigration eAuthority, the U.S. Department of State’s (DOS) Visa Bulletin for November 2014 indicates that the priority date for the employment-based second preference category (EB-2) for Indian nationals will retrogress more than four years, back to February 15, 2005. The Visa Bulletin sets out per country

Cap-Subject H-1Bs Will Be Effective October 1

On October 1, 2014, FY 2015 H-1B cap-subject visa petitions will be valid. Individuals in possession of valid H-1B petitions must take appropriate action to demonstrate work authorization for the petitioning employer. For certain individuals, demonstrating H-1B status can be as straightforward as completing an I-9 form. For example, if the following requirements are met:

USCIS Clarifies Eligibility Requirements for STEM OPT Extension

A recent interim policy memorandum, released by the U.S. Citizenship and Immigration Services (USCIS), clarifies the degree completion requirements for the 17-month extension of Optional Practical Training (OPT) available to F-1 students enrolled in Science, Technology, Engineering, and Mathematics (STEM) degree programs. The memorandum concludes that F-1 students engaging in post-completion OPT are eligible for a 17-month STEM extension even if they have not completed the thesis or equivalent requirement for their STEM degree.