New Registration System for H-1B?

The H-1B visa classification is one of the most popular work-authorized temporary work visas available. H-1Bs are available where there is a U.S. employer; where the position offered is a "specialty occupation," that is, one cannot perform the duties without having a degree in a specific field of study; where the individual has the degree (or equivalent work experience) in that specific field; and where the employer is willing to pay a required wage. For now, there is generally no labor market test. The H-1B is so popular that individuals not already in H-1B status must have their employers file a petition in a lottery each spring for a chance at obtaining an H-1B number. There are only 20,000 numbers available each year for those with advanced U.S. degrees and 65,000 for all others. About 30-35% of those trying for a number are selected for processing, and there is no guarantee that the government would approve the petitions based on their merits due to shifting adjudicatory standards under the current administration.

There have been talks over the years regarding changing the H-1B system given the demand for them. One of the more talked about options is to have a pre-registration system for employers so that employers would not have to complete the whole H-1B filing process, only to find out through a lottery system that their petitions were not chosen for processing. This fall, when the Department of Homeland Security (DHS) provided an overview of some of the upcoming regulatory changes, it indicated the following:

The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) ("H-1B regular cap") or under section 214(g)(5)(C) of the INA ("H-1B master's cap"). This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. employers has often exceeded the numerical limitation. This rule is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for these H-1B petitions.

While the DHS had indicated that they would be publishing the new rule in October 2018 for the public to comment, and so that there would be enough time to implement it for the upcoming H-1B lottery (April 1, 2019), to date, nothing has been published yet. What is of interest, however, is that on November 16, during a public meeting, USCIS Director Francis Cissna said that DHS is still aiming to publish a rule in time for this upcoming H-1B lottery. Details of this rule have not been released yet, but our sources, the American Immigration Lawyers Association (AILA) believes that the rule will mirror what was proposed back in 2011 whereby an employer would undergo an electronic registration process that would take about 30-minutes, then USCIS would select the number of registrations that it believes would use up the allotment of H-1B numbers, and then notify the employer that it may proceed with preparing and filing both steps of the H-1B process (the ETA Form 9035 Labor Condition Application and the Form I-129 Petition for Nonimmigrant Worker).

We will keep a close watch on this developing story. In the meantime, regardless of the actual procedure, we do encourage all employers to look ahead and consider whether any of their current employees and any upcoming hires will need an H-1B number. These typically are those who are not currently in H-1B status, especially recent international student graduates (F-1s).

The above information was provided for educational purposes only.


Vince Lau Named Top Lawyer

Clark Lau LLC is pleased to announce that Managing Partner Vince Lau has been named by Marquis' Who's Who as a Top Lawyer. According to Vince, "What makes one a 'Top Lawyer' is the strong support and backing he receives from the team at work."


Vince Lau Joins Government Speakers

Vince Lau joins government speakers Bill Rabung (Director of Operations of the Department of Labor's Office of Foreign Labor Certification) and Judge Paul Almanza (Associate Chief Administrative Judge of the Department of Labor's Office of Administrative Law Judges) at AILA's Annual Immigration Conference to discuss latest updates in connection with employment-based green cards.


H-1b Cap Reached and Lotteries Completed

USCIS announced today that not only has the H-1b cap been reached but that it has completed both its US Master's degree H-1b cap and regular H-1b cap lotteries. They will now start processing the selected petitions and will be returning those that have not been chosen.

Given that USCIS has suspended premium processing for H-1b cap cases, it may take a while before employers will receive further news about a particular petition.

In the meantime, no official processing time has been issued. USCIS did announce however they received 190,098 petitions this year for the 85,000 available visas. This is down from the 199,000 filed last year.

If any H-1b cap petition beneficiary needs to do any international travel, please do not hesitate to contact us first to determine if there is any impact on the filed H-1b petition.

Please stay tuned!

(This information was posted for educational purposes only.)


Magaly Rojas Navarro Speaks on Wages

Magaly Rojas Navarro spoke on a national webinar organized by the American Immigration Lawyers Association (AILA) on January 18, 2018. She joined members of AILA's Department of Labor Liaison Committee in discussing how an employer could meet wage requirements in H-1B and PERM cases using alternative sources such as private wage surveys.


Vince Lau Speaks on Green Card Process

Vince Lau spoke today at the American Immigration Lawyers Association's (AILA) Midyear Conference. As Vice Chair of AILA's Department of Labor Liaison Committee, he shared insights on the current U.S. Department of Labor processes including how to handle obtaining a prevailing wage determination in connection with an employer-sponsored green card case.


Planning for H-1Bs

While the government is still dealing with the current fiscal year and its budget, it's not too early to consider any potential H-1Bs for FY2019.

Timing is everything. Congress sets a limit on the number of H-1B visas available each year. While the H-1B numbers for the next fiscal year do not become available until October 1, 2018, employers may file petitions to request numbers as early as six months in advance, i.e., April 1, 2018. As a result, we are writing to encourage employers to review their hiring needs and determine whether they should initiate H-1B processing for anticipated hires, or even recent hires in other nonimmigrant status now. During the last few fiscal years, we ran out of H-1B numbers within the first five days of filing! We anticipate that the numbers will run out in early April again this year.

(Please note that the H-1B process consists of two steps: (1) filing the Labor Condition Application with the U.S. Department of Labor which takes at least 10 days to process and (2) filing the actual H-1B petition with the U.S. Citizenship and Immigration Services. For this reason, employers will need to contact us no later than March 1, 2018 to ensure sufficient time to process the H-1B petition for timely filing.)

Every time an employer hires an individual for a specialty occupation an H-1B number must be available. (An exception arises where the individual is already with another employer in H-1B status, but this employer cannot be a university/college or a non-profit government research organization.) When numbers run out, the employer has to wait until the next fiscal year to file for an H-1B. In some cases there may be no other nonimmigrant visa option for the individual and the individual may have to leave the U.S. or, at least, not be able to work for the employer until a year later.

You should consider filing an H-1B this April if the following applies:

  • You are looking to hire an individual who is not in H-1B status already
  • You are hiring an individual who is already in H-1B status, but is currently employed with a college/university (this situation requires a new H-1B number)
  • You are hiring an individual who is already in H-1B status, but is with a non-profit government research organization (this situation requires a new H-1B number)
  • Your employee is in F-1 Student Status
  • Your employee is in L-1B Status and is considering seeking legal permanent residency in the United States
  • Your employee is in another nonimmigrant status and may want to seek legal permanent residency in the United States

*** Please also note that as of the writing of this, and despite reported rumors of changes to the H-1B program, USCIS has not made any announcements regarding changes to the requirements or the process and we anticipate that USCIS will continue processing H-1B petitions as before. Please stay tuned. ***

The above information has been provided for educational purposes only. Please contact us at your earliest convenience if you have any questions concerning the above and how the information may apply to your particular circumstances.


International Entrepreneur Rule Back for Now

On December 1, 2017, a district court reinstated an option available for entrepreneurs created under the Obama Administration but put on hold by the Trump Administration. Today, the U.S. Citizenship and Immigration Services announced that they would be accepting applications under this option. Concurrently, however, they are also proposing to end this option. As a result, it is uncertain whether this option will last, and if so, in what form. Below is a summary of the current form of this option.

The International Entrepreneur Rule ("IER") would allow individuals, and their families, who meet certain criteria to be admitted, to remain, and to work in the United States for an initial period of up to two years, with the possibility of an extension of up to three years. The work permission would allow the applicant to work for the start-up entity only but would also extend work permission to his/her spouse.

IER does not provide a new status to individuals but instead provides more flexibility to the government in granting "parole," i.e., permission to enter the United States, for entrepreneurs who meet certain criteria and "whose entry into the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation." Such criteria include the following:

  • Business entity was recently formed, i.e., within three-years of the application date, and has substantial potential for rapid growth as evidenced by a range of documents;
  • Applicant has a substantial ownership interest, i.e., at least 15% ownership at the time of the application, and maintains at least 10% throughout the parole period, in the business entity and has an active and central role to be able to advance the business (proposal is that no more than three applicants can benefit from one entity); and
  • Business entity has received substantial investment, i.e., at least $345,000 within the 365 days prior to the application, from U.S. individual or organizational investors with established records of successful investments as defined by multiple factors including job creation and revenue growth or
  • received substantial awards or grants, i.e., at least $100,000, from certain Federal, State, or local government entities.

Alternatively, if the applicant cannot fully satisfy all of the requirements above, the applicant additionally can demonstrate that his/her parole into the U.S. would "provide a significant public benefit," i.e., rapid growth and job creation.

Applicants must apply for an initial parole period of up to two years by filing a newly created Application for Entrepreneur Parole, Form I-941, along with supporting evidence to meet each of the criteria above and a proposed fee of $1200. (There will be an additional fee for biometrics to be captured.) Spouses and children would file Form I-131. Spouses would file Form I-765 for employment authorization, while the principal applicant would not need a separate application or document for employment authorization. Applicants however must maintain a household income which is at least 400% greater than the Federal poverty line for his/her household size as defined by the Department of Health and Human Services. Should there be any material changes to the circumstances which served as the basis for the application approval, the applicant would need to file a new Form I-941.

After the initial grant, if the applicant can show that additional time would serve a "significant public benefit," an applicant may receive up to an additional three years of parole. An applicant must file for re-parole before the expiration of the initial parole. Criteria include the following:

  • Business continues to be a start-up entity as evidenced by its revenue growth and investment attraction;
  • Applicant continues to be an entrepreneur through substantial ownership (at least 10%) and central role in the business;
  • Business continues to have substantial potential for rapid growth and job creation through receipt of additional funding ($500,000 during the initial parole period), revenue generation ($500,000 in annual revenue, with at least 20% average annual growth during the parole period), or job creation (at least 10 full-time jobs filled by non-family U.S. workers for at least 1 year).
If an applicant does not meet the above fully, the applicant may provide "reliable and compelling" evidence of the business' continued substantial potential for rapid growth and job creation.

The above information has been provided for educational purposes only. To see whether this option is appropriate for your circumstances please contact Clark Lau LLC.


Travel Ban and Entrepreneur Parole Back in Play

Yesterday, on December 4, 2017, the U.S. Supreme Court lifted the restrictions that lower courts had imposed on implementing President Trump's latest travel ban. Arguments to whether the travel ban will stay will be conducted in the lower courts. (See details under Clark Lau entry of 9/27/2017.)

Additionally, the Obama Administration had fashioned a rule that would offer entrepreneurs an opportunity to conduct business in the U.S. if a certain threshold of capital and operations were reached ("Entrepreneur Parole"). The rule was to take effect in July 2017, but the Trump Administration halted it with its "Delay Rule." A district court in D.C. ruled on Friday, December 1, 2017, that this Delay Rule did not follow proper procedures and therefore the Entrepreneur Parole rule should be in place. Details for implementation are expected. (See details under Clark Lau entry of 8/27/2016.)

The above information has been provided for educational purposes only. Please contact your Clark Lau attorneys to see how the above information impacts your particular circumstances.


Magaly Rojas Navarro Speaks on PERM

Magaly Rojas Navarro will be speaking at the Massachusetts Continuing Legal Education ("MCLE") Annual Conference on Immigration today. Magaly will be providing insight into the overall PERM process. This is an annual event where new and seasoned attorneys attend find out about the latest developments in immigration law.

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