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USCIS Revises Form I-9 – Effective January 22, 2017

By Aleksandra Michailov, Esq.|November 14th, 2016|

On November 14, 2016, U.S. Citizenship and Immigration Services (USCIS) published a revised version of Form I-9, Employment Eligibility Verification which is available to use starting immediately. Starting Jan. 22, 2017, employers must use only the new version, dated 11/14/2016 N. Until then, they can continue to use the version dated 03/08/2013 N or the new version.

Among the changes in the new version, Section 1 asks for “other last names used” rather than “other names used,” and streamlines certification for certain foreign nationals.

Other changes include:

  • The addition of prompts to ensure information is entered correctly.
  • The ability to enter multiple preparers and translators.
  • A dedicated area for including additional information rather than having to add it in the margins.
  • A supplemental page for the preparer/translator.

The instructions have been separated from the form, in line with other USCIS forms, and include specific instructions for completing each field.

The revised Form I-9 is also easier to complete on a computer. Enhancements include drop-down lists and calendars for filling in dates, on-screen instructions for each field, easy access to the full instructions, and an option to clear the form and start over. When the employer prints the completed form, a quick response (QR) code is automatically generated, which can be read by most QR readers.

Form I-9 requirements were established in November 1986 when Congress passed the Immigration Reform and Control Act (IRCA). IRCA prohibits employers from hiring people, including U.S. citizens, for employment in the United States without verifying their identity and employment authorization on Form I-9.

How Can We Help

The Capitol Immigration Law Group can provide various levels of internal I-9 compliance audits and on-site employee training as well as training materials and guidance for performing regular audits and training. We can provide immigration compliance training and auditing to meet an employer’s specific needs. We encourage all employers to be mindful of their compliance requirements and to proactively and regularly audit their compliance before a government agency does. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics. We also invite you to contact us if our office can be of any assistance or you have any questions or comments.

President-elect Trump and Immigration: Initial Thoughts

By Dimo R. Michailov, Esq.|November 11th, 2016|

During the election campaign, President-elect Trump put immigration at the center of his agenda and platform and made a commitment to the voters to take immediate steps relating to immigration upon taking office on January 20, 2017.   There are certain immigration-related steps that can be done immediately upon taking office, by executive action, and there are certain steps which require congressional approval. Our office seeks to provide our initial thoughts on what immigration-related changes we may expect during the Trump presidency. (more…)

H-1B Cap Lottery Lawsuit Allowed to Proceed

By Dimo R. Michailov, Esq.|September 29th, 2016|

Many of our readers are aware of the way first-time H-1B work visas are allocated – via a random lottery conducted as part of each year’s H-1B cap filing season in early April.    The way the lottery is conducted has been kept secret and a recent lawsuit seeks to uncover details of the lottery’s mechanics while also seeking to change the way H-1B work visas are allocated. (more…)

H-1B Dependent Employer – Definition and Responsibilities

By Dimo R. Michailov, Esq.|August 24th, 2016|

The definition of an H-1B dependent employer is important in a number of ways, including due to the H-1B regulations’ certain additional recruitment and attestation requirements to such employers.   For H-1B employers, it is important to understand the definition and apply the analysis during each H-1B filing. (more…)

Appeals Court Creates Right of I-140 Revocation Notice to New AC21 Sponsor Employer

By Dimo R. Michailov, Esq.|August 18th, 2016|

In an August 3, 2016 opinion, the U.S. Court of Appeals for the Seventh Circuit held that in situations where beneficiaries of I-140 petition have ported their I-485 adjustment of status application to a new employer pursuant to the AC21 portability provisions, USCIS is required to provide a notice of its intent to revoke the earlier I-140 petition to the new AC21 employer but not to the beneficiary.

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L-1A Visa – Recognizing The Global Role Of Managers

By Aleksandra Michailov, Esq.|May 19th, 2016|

The Administrative Appeals Office (“AAO”) recently issued a decision in a case focusing on the correct interpretation of the L-1A visa requirements for functional managers. In Matter of Z-A-, Inc., the AAO clarified that when determining whether the foreign national will primarily manage an essential function, USCIS must consider all relevant factors, including the foreign national’s role within the wider qualifying international organization. Importantly, USCIS designated this AAO opinion an Adopted Decision, making it a policy guidance binding all USCIS employees.

The L-1A classification allows a foreign business to transfer its executives or managers to the related U.S. office. According to the U.S. immigration law, there are two types of managers: a personnel manager who oversees other professionals and a functional manager who oversees an essential function of the business. Functional manager cases have been difficult to prove, especially for smaller business entities. With small staff in the U.S., it can be a challenge to show that the foreign national would primarily manage an essential function rather than perform it.

In Matter of Z-A- Inc., the foreign parent company had over $900 million in annual sales, while the U.S. office employed only three individuals. The L-1A petition sought to classify the foreign national beneficiary as a functional manager due to his market development duties. USCIS denied the petition based on the small number of employees in the U.S., arguing that the foreign national beneficiary must necessarily be engaged in day-to-day sales and other non-managerial duties. The AAO reversed the initial decision and approved the L-1A petition.

The AAO criticized USCIS for focusing on the number of individuals employed in the U.S. office. The opinion stated that to determine whether the beneficiary’s job duties are primarily managerial in nature, USCIS must consider the totality of the record and weigh all relevant factors, including the petitioner’s organizational structure and the beneficiary’s position within the petitioner’s organization. The decision clarifies that staffing levels alone are not dispositive on whether the beneficiary is a functional manager. USCIS cannot focus on the size of the U.S. business, but rather must analyze the overall needs of the corporate family.

How Can We Help

This new guidance allows us to bolster functional manager cases with binding precedent. It also serves as a reminder to our clients that sound evidence on overall corporate structure is essential for a successful L-1A petition.

Capitol Immigration Law Group PLLC offers a wide range of immigration law services. Please do not hesitate to contact us if our office can be of any assistance or you have any questions or comments. We stand ready to help analyze any time-sensitive cases. We also invite you to subscribe to our free weekly immigration newsletter to receive timely updates on this and related topics.

USCIS Publishes Rule Seeking to Raise Filing Fees

By Dimo R. Michailov, Esq.|May 11th, 2016|

The Department of Homeland Security has just released a proposed rule seeking to amend (increase) most of the Citizenship and Immigration (USCIS) application filing fees. The weighted average of the increase is 21 percent and USCIS is adding one new fee.  The proposed fee increase rule is under a comment period until July 5, 2016 with an anticipated effective date for the new fees around Fall of 2016.

Update October 24, 2016:  the final filing fee increase rule has been published with an effective date of the new fees December 23, 2016.

(more…)

H-1B Alternatives: What Are The Available Visa Options?

By Dimo R. Michailov, Esq.|April 28th, 2016|

Many of our readers are aware that as of April 7, 2016, USCIS had received a sufficient number of H-1B cap-subject petitions to fill the annual H-1B quota.  This year’s number of filings (236,000) is at an all-time high, meaning that about 1 in 3 H-1B cap applications will be selected for review.   As USCIS is starting to issue receipt notices for the H-1B cap cases which are being selected for processing, we wanted to provide an overview of the alternative visa options for those H-1B employers and employees whose H-1Bs did not get selected under the H-1B cap lottery.

The H-1B Cap Season Numbers

This year there were 236,000 applications filed for the 85,000 available H-1B cap visas, resulting in a simple calculation of about 36% average chance than an application will be selected for processing under the H-1B cap.    U.S. master’s degree holders have higher change, while the rest of the applicants have slightly lower chance due to the way U.S. master’s degree holders’ H-1B cap cases are given priority at the lottery.   This 36% chance is about the same as last year’s average chance of H-1B cap selection.

As a result,  many employers and prospective employees who wanted to take advantage of the H-1B program this year are unable to do so — either because they were unable to file between April 1st and 7th or because their application was not picked by the H-1B lottery.     We seek to highlight some common alternative visa options.

Alternatives to H-1B Cap Petitions

Now that the H-1B quota has been reached, we are receiving an increasing number of inquiries by both cap-subject employers and prospective employees about the alternatives for work authorization between now and October 1, 2017, when the next fiscal year’s H-1B quota would begin (as a reminder, April 1, 2017 is the earliest a cap-subject H-1B application can be filed under next year’s cap).  We describe some of the most common H-1B visa alternatives.  Note that the list is not intended to exhaust all possible visa types and scenarios pursuant to which an employee may be legally employed.  Our goal is to list some of the common options for the benefit of our clients and readers.  We are happy to discuss individual cases as part of our initial consultation.

Cap-Exempt H-1B

A number of employers may qualify to be cap-exempt and are allowed to file for H-1B petition at any time.   A cap-exempt employer is (1) an institution of higher education, (2) related or affiliated to a higher education institution nonprofit entity, or  (3) nonprofit research organization or a governmental research organization.  A cap-exemption case may be made even if the actual H-1B employer does not meet these requirements but the placement of the H-1B worker will be at the location of a cap-exempt employer.    Please see our cap-exempt H-1B employer guide.   As a result, many educational institutions, non-profit and research organizations may qualify to file cap-exempt H-1Bs.   We are happy to help evaluate whether an employer can qualify to be cap-exempt.

O-1 or P-1 Extraordinary Ability Visas

O-1 and P-1 visas are generally reserved for individuals who have extraordinary ability in the sciences, arts (including the television and motion picture industry), education, business, or athletics.  By definition, not many individuals qualify for one or both of these visa types, but where possible, an application for O-1 and/or P-1 should be prepared in lieu of H-1B.   In addition to being able to obtain work authorization pursuant to these visa types, an O-1 and/or P-1 approval may establish the basis for the subsequent application for an EB-1 category permanent residency.  Please contact us if you would like our help in evaluating your O-1 and/or P-1 visa case.

L-1 Intracompany Transferee

The L-1 visa type allows multinational companies who have presence abroad to transfer their employees from their overseas offices to their U.S. office (or to establish a new U.S. office).  This visa type is a good option for foreign employers seeking to establish or boost their U.S. presence and for foreign nationals currently employed abroad.   Foreign nationals who are currently in the U.S. generally will not qualify for L-1 visa.  An added benefit to the L-1 visa is that family members are entitled to a work authorization pursuant to L-2 status.

In the past, our office has assisted many US employers who were not successful in the H-1B cap lottery but were able to send their employee(s) abroad on an assignment for one year and then bring them back to the US on L-1 visa.   For US employers who have international presence and for whom it is possible to send a candidate on an assignment, abroad, the L-1 visa option is a very good alternative.

TN for Canadian and Mexican Professional Workers

An option available to certain Canadian and Mexican nationals in certain occupations is the TN visa classification.   It is available to citizens of Canada and Mexico who would be employed in the U.S. in one of the designated occupations.  The TN visa is not subject to a cap and can be obtained fairly easily either by applying at the border (for Canadians) or by filing a petition with USCIS.    Please see more information on the TN visa classification.

E-1/E-2 Treaty Trader or Investor

The E-1/E-2 visas allow nationals of countries with which the U.S. has trade treaties to invest an amount in the U.S. and receive an E-1 (treaty trader) or E-2 (treaty investor) visa.  See a list of treaty countries.

The E-1 treaty trader visa is suitable if the foreign national has a multinational employer who is willing to transfer them, and the company has significant trade between the foreign country and the U.S.  The employee must also have skills which are essential to the operation of the company trade.   Dependents of E-1 visa holder are eligible for work in the U.S.

The E-2 treaty investor allows foreign nationals to invest (preferably) a substantial amount in the U.S. and obtain an E-2 visa to be able to manage and direct their investment.  The amount required for investment generally varies depending on the industry (the so called, proportionality test) with more capital-intensive industries requiring more significant investment for E-2 application.   Dependents of E-2 visa holders are eligible to apply for work authorization.

F-1 Optional Practical Training (OPT) Extension or F-1 Curricular Practical Training  (CPT)

Many of the H-1B cap candidates are F-1 student visa holders who are already in the U.S. and for them there may be ways to continue to stay on F-1 status while having work authorization.    OPT holders who have completed a STEM degree (See Which Degrees are on the STEM List?) are eligible to apply for a 17-month STEM OPT extension (to be increased to 24 months starting May 2016).    There are certain requirements to qualify for the 17-month STEM OPT extension (employer must be E-Verified company, extension must be filed before the current OPT expires, and others) but this is a great way for F-1 students to continue to be able to work in the U.S.

Additionally, certain schools and F-1 degree programs allow an F-1 student to engage in employment related to their field of study under the Curricular Practical Training, CPT, program.    Availability and eligibility varies by school and program; but when available, the F-1 CPT option may allow for continued employment authorization.

File for a Permanent Residency/Green Card Directly

For some employers and their foreign workers filing for an employment-based green card may be  viable option.   Normally, employers seek to hire a foreign worker on H-1B status and then the employer does a green card sponsorship.    However, it is also possible to do a green card directly, without going through the H-1B visa option.      This option may work best for foreign workers who have a master’s degree OR a bachelor’s degree and five years of experience and are nationals of a country other than China or India.   This option may work well even for holders of a bachelor’s degree from a country other than China or India.     Unfortunately, this direct green card filing option may not work so well for India or China nationals because of the significant waiting time for a visa number to become available (4-5+ years).

For example, it may be possible to secure a PERM Labor Certification approval in 9-12 months.   For many EB-2 (and even for some EB-3) candidates, the way the Visa Bulletin cutoff dates have advanced means that the second and third stages of the green card process (which also grants permission to stay in the U.S. and EAD permission to work) can be filed within a year (or possibly even less) after starting the green card process.    While the foreign national will need to be able to maintain valid status in the U.S. during this time, the direct filing of a green card may be a good alternative to simply skip the H-1B work visa filing process.     Obviously, the suitability of this option depends on a number of factors, including education, experience, country of nationality and the ability to maintain status in the U.S.     We are happy to provide a more personalized overview of this option – please contact one of our attorneys for more information.

H-1B Program Changes by Congress Possible, Although Timing is Uncertain

It has become a pattern that after every H-1B cap season ends, resulting in a high number of disappointed employers and employees who did not make it under the lottery, there is increased talk about raising the H-1B cap limit.     There are proposals and much talk here in Washington, DC about this kind of a chance in the H-1B program; however, as of this time, there is no proposal or law which would become law any time soon.    As we have done in the past, our office would continue to monitor and report on any developments relating to relief to H-1B employers and workers, so stay tuned.

Wait and File on April 1, 2017 for the FY2018 Cap

For some of our clients, waiting until April 1, 2017 to file a new cap-subject H-1B petition may be the best (or only?) option.  The H-1B visa type, although subject to some requirements, is a fairly common visa type for which many qualified employees are eligible.    As of now, and assuming any proposed immigration reform is not enacted by then, the FY2018 H-1B cap is expected to be the same as it was for the FY2017 fiscal year – 65,000 H-1B visas (plus 20,000 for holders of U.S. master’s degrees).

Conclusion

Our office will continue to monitor developments relating to the H-1B program, this and next year’s caps and the immigration proposals.   In the meantime, please feel free to subscribe to our free weekly newsletter to obtain developments on this and related topics. If our office can be of any help with any of the H-1B visa alternative options, please feel free to contact us.

Very Short and Busy H-1B Cap Filing Season Expected: April 1st to April 7th (Five Business Days); H-1B Lottery Likely; Last Call for H-1B Cap

By Dimo R. Michailov, Esq.|March 3rd, 2016|

As we are going into the peak of the H-1B cap season, our office receives many inquiries about the duration of the H-1B filing season this year or, in other words, when will the H-1B cap be reached?      So far we have been able to compare demand with prior H-1B filing seasons and we knew that this would be a very busy and very short H-1B filing season.    According to our sources (which include clients, peer law firms and government agencies), we expect that the H-1B cap be reached in the first five business days of April with the number of filings over the first five business days far exceeding the available number of H-1B visas.  This means that there is almost a guarantee that there will be a random lottery to allocate the  available H-1B visas (65,000 regular cap in addition to 20,000 U.S. master’s degree or higher cap)  among all filings received in the first five business days of April. (more…)

How to Increase the H-1B Cap Lottery Chance of Success?

By Dimo R. Michailov, Esq.|February 14th, 2016|

With the approaching H-1B cap filing season, one of the most common concerns we are hearing from both prospective H-1B employers and candidates is about the H-1B cap lottery and the fact that the random lottery does not provide a great chance of an H-1B application being selected for review.

Our office has handled thousands of H-1B applications and we have seen firsthand how cruel the H-1B cap lottery can be to both employers and to workers. Unfortunately, we have seen many highly-qualified and talented workers, many of them recent graduates of top universities, see their H-1B application rejected under the lottery and then struggle to find alternatives to remain in the US.

On the other hand, there are certain things that can be done to increase the chance that an H-1B candidate will see their application selected under the H-1B lottery and ultimately approved.   We would like to share some of our experiences.

Background of the H-1B Cap Lottery

The H-1B visa category was created in 1990 through the Nationality and Immigration Act of 1990 (INA).  Upon the creation of the H-1B visa type,  INA imposed a numerical limitation (“cap”) on the number of H-1Bs that could be issued in each fiscal year.  This “cap” (or quota) has varied over the past years but is set to 65,000 per year for FY2017 (fiscal year) starting on October 1, 2016.  As a result, each year, by law, USCIS can approve up to new 65,000 H-1Bs.

There are certain exceptions to the congressionally-mandated maximum of 65,000 H-1B visas per fiscal year.  The first 20,000 H-1B visas issued to alien workers who obtained their master’s degree or higher from a U.S. university are exempt from the 65,000 cap;  H-1B visas issued to such U.S. master degree or higher holders subsequent to the first 20,000 are then counted against the overall 65,000 cap.    Additionally, the cap does not apply to foreign nationals in the U.S. who are in lawful H-1B status and who are seeking to extend their visa or change employers.

Historical Chances of Selection by the H-1B Cap Lottery

Over the last several years, the chances of selection of a new cap H-1B application under the H-1B cap have been decreasing.

0%
Last year (FY2016) chance of success (233,000 applications)
0%
Chance of success for FY2015 (172,500 applications)

Last year (FY2016) there were 233,000 applications and the cap was reached over the first five days. This means that there was approximately 27% percent chance that an H-1B cap filing will be selected under the H-1B lottery. The chance for U.S. master’s degree or higher holders was slightly higher.

Previously, in FY2015, there were 172,500 applications and the cap was also reached over the first five days of the filing season, for a lottery selection success rate of 38%.

This trend of increasing of H-1B cap filings, together with the improving economy in the United States, suggests that this year’s H-1B cap will also be oversubscribed even after only five filing days and will be subject to a random computer-generated lottery.

Ways to Increase the H-1B Cap Lottery Chances of Success

  1. Use US Master’s Degree or Higher

One of the most obvious ways is to try to take advantage of the 20,000 U.S. master’s degree or higher cap exemption. Doing so can boost the chance of selection by at least several percentage points, based on last year’s filings.

However, private for-profit universities’ degrees are not accepted and if the candidate has not officially graduated yet, all of the degree requirements (including thesis, if required) must be completed by the time the H-1B petition is filed on April 1. Also, the offered position must be one which is related to the master’s degree field of study.

  1. File Multiple Years

Mathematically speaking, filing for an H-1B cap in multiple years increases the overall chance of success under the H-1B cap lottery. We recommend that employers and candidates do not miss an opportunity to pursue an H-1B cap petition as early as possible – assuming the employer is willing to sponsor and assuming the candidate meets the eligibility requirements. We have seen (unfortunately, not just a few) cases where a H-1B cap case was not pursued early because “there would be more opportunities to do so in subsequent years” only to find out that such subsequent years’ H-1B petitions were not successful under the H-1B cap lottery.

For example, many F-1 OPT holders (and especially STEM graduates) often have multiple opportunities to file under the H-1B cap due to the fact that their OPT may be valid for 1 year which may cover two H-1B cap seasons (STEM graduates may get a chance to participate in at least one, and likely two more, H-1B cap seasons). This is also true for H-1B candidates who are still in school – there are other ways to build H-1B cap eligibility in order to file an H-1B petition early and to be able to have multiple years’ H-1B filings as backup options.

  1. Establish H-1B Cap Eligibility in Alternative and Creative Ways (In Order to be Able to Make Early and Multiple H-1B Filings)

Related to the suggestion to consider early H-1B cap filings, even when doing so may not be so obvious, there are ways to make H-1B cap eligibility cases when the candidate is still in school.

For example, many U.S. master’s degree students who may not have completed their master’s degree requirements may still be eligible for an H-1B cap filing based on their prior bachelor’s degree. The H-1B minimum requirements are that the position requires, at a minimum, a bachelor’s degree (or higher) and that the candidate has such degree.   Many master’s degree students already have a degree which may make them eligible for an H-1B even before the master’s degree is completed.

Similarly, an H-1B cap case may be build based on incomplete degree plus years of work experience.   The H-1B regulations permit an incomplete degree to be used – each missing year of education (from a four-year bachelor’s degree) can be substituted by three years of related work experience. As a result, many candidates who have work experience may be eligible for an H-1B cap case even if their bachelor’s degree is still incomplete.    Please see our article on filing H-1B cap before graduation for additional details.

  1. Job Offers with Multiple Employers

USCIS specifically prohibits multiple H-1B cap filings by the same employer on behalf of the same worker. But a qualified H-1B candidate can have bona fide job offers by more than one employer and can have multiple (different) employers seek to obtain cap H-1B approval on their behalf. Having a bona fide sponsorship by more than one employer also increases the chances of success under the H-1B cap lottery.

  1. File a Perfect Application

Last but not least, and stating the obvious, is  making sure to file a perfect H-1B cap application.   The H-1B filing is generally a fairly technical set of documents and using a qualified and attentive attorney is strongly recommended.  Yes, we are biased, but we have seen applicants hurt by poorly-prepared or late H-1B cap applications.    USCIS will reject any H-1B petitions filed at the incorrect service center, requesting incorrect H-1B employment dates,  with missing pages or signatures or filed too early or too late.    Needless to say, this is a one-time opportunity without a chance to correct a mistake or redo an application, so the margin of error is extremely small to none.

Conclusion

While we do not yet know for sure how many H-1B cap applications will be filed over the first five days of April this year, based on what we see in our office, the demand is higher than last year.   We urge our clients and readers to assume that the H-1B cap season will last only five days, that there will be a lottery and to aim for April 1, 2016 H-1B petition filing.

If you wish to start a new H-1B work visa petition under this year’s quota, or if our office can be of any help, please contact us as soon as possible.  Our attorneys and professionals stand ready to review your case, as part of our free initial consultation, and will help you prepare a strong H-1B application.