Nonimmigrant Visa for Religious Workers
By Reuben S. Seguritan
December 02, 2015
The religious worker (R) visa program was established in 1990 to allow foreign religious workers to perform religious duties in the United States on a temporary basis. The program was intended to enable churches, mosques, synagogues and other religious organizations, which had been struggling to find qualified workers, to better serve their communities.
The petition is made on Form I-129 with the R-1 classification supplement. It must be filed by the U.S. sponsoring organization that must demonstrate membership in a specific religious denomination.
A “religious denomination” is a religious group or community of believers having some type of ecclesiastical government, a common creed or statement of faith, form of worship, a formal code of doctrine and discipline, religious services and ceremonies, established places of worship or religious congregations, or comparable indicial of bona fide religious denomination.
The employer must be able to show tax-exempt status under Section 501(c)(3) of the Internal Revenue Code. The petition must include a clear job description and state the number of hours the beneficiary will work per week, which must be no less than 20 hours.
The R-1 beneficiary is usually a minister who must be authorized and trained to conduct religious worship and who will work solely as a minister in the United States. The minister must give proof of the denomination’s requirements for someone to become a minister, and evidence of his or her ordination and theological education. A lay preacher is not a minister.
Religious vocational workers and religious occupation workers are also eligible for an R-1 visa. Religious vocation refers to a formal lifetime commitment to a religious way of life. Examples of vocations include nuns, monks and religious brothers and sisters.
Workers considered to be in a religious occupation include religious instructors, missionaries, translators and religious health care workers. Positions that are primarily administrative or support positions, such as janitors, maintenance workers, fund raisers and clerical employees are excluded.
The religious worker must be able to document at least two years of membership in the denomination. The sponsor must be of the same religious denomination of which the beneficiary has been a member.
Because of the high fraud rate in the R visa program, on-site inspections of petitioning organizations are required. The site visits may be scheduled or unannounced. The religious visa is employer specific but, if authorized by the USCIS in a separate petition, the worker may have more than one employer at a time.
The spouse and children may also be included as derivative beneficiaries but they cannot work.
The R-1 beneficiary is initially allowed a period of 30 months to stay but it may be extended for an additional 30 months. The extension application must be accompanied by financial and other supporting documents to show that the beneficiary worked as R-1 for the first 30 months.
Only periods of physical presence in the U.S. are counted towards the 5 year maximum. Any trip of at least one 24-hour day outside the U.S. can be recaptured.
The petitioning organization carries the burden of proof to establish eligibility for time recapture. It must submit evidence documenting the beneficiary’s periods of physical presence outside the U.S. Although summaries and charts of travel are helpful, the petitioner must remember to include independent documentary evidence of the time sought to be recaptured, such as copies of the passport stamps, I-94 cards, and plane tickets.
Nonimmigrant Visa Processing in Canada and Mexico
By Reuben S. Seguritan
November 11, 2015
Many individuals in the United States choose to apply for or renew a nonimmigrant visa in a country other than their home country to save on time and expense. Because of their proximity, Canada or Mexico are popular choices for this type of consular processing.
This is what’s called Third Country National (TCN) visa processing because the applicant is neither a citizen nor a national of the third country. Applicants will have to pay their visa application processing fee before scheduling their appointment.
TCN processing usually means less time away from work or family than if the individual were to obtain a visa in his/her home country. It could also be considerably cheaper. As an example, for most Filipinos the drive or flight to Canada or Mexico costs less than a plane ticket to the Philippines.
However, TCN processing also carries with it potential risks which visa applicants must be aware of.
For one, the issuance of a visa may be delayed for some reason, in the security checks for instance, which means that until the applicant obtains a valid visa stamp, he/she cannot return to the U.S. The applicant may have to make arrangements for an extended stay in the third country which could be a problem, for example, in some posts in Mexico when local violence erupts and causes a suspension of consular operations.
If the application is denied and the consular official cancels the individual’s prior visa, the applicant would have to wait for visa issuance at the third country or go directly to his/her home country.
Moreover, not all types of nonimmigrant visa applicants may apply in Mexico or Canada. Applications for E visas from third country national applicants who are not residents in their consular district are not accepted.
Applications from nonresident TCNs who are nationals of countries designated as sponsors of terrorism are also not accepted.
Applicants who have been out of status in the U.S. for violating the terms of their visa or those who overstayed their I-94 validity may not consular process as a TCN. Aliens who overstay their visa, even by one day, who are subject to Section 222(g) of the Immigration and Nationality Act are generally not allowed to apply for a nonimmigrant visa via TCN processing.
TCN applicants must therefore be reminded to be ready for potential delays at the third country. They have to be mindful of timing issues and the logistics of the trip (such as biometrics schedules and pick-up of passport after visa issuance). Additionally, in some cases they may have to first get a visa in order to enter Canada or Mexico
Second, they must research the policies of a specific consular post where they intend to apply and check if it has jurisdiction over the application.
Finally, they need to carefully review their immigration history and status. Processing in Canada or Mexico is reserved for “clearly approvable” TCN cases. Individuals who have fallen out of status under Sec. 222(g) must apply for a visa from their home country, and those with potential admissibility issues are better off consular processing back home.
STEM OPT Extension for Foreign Students Invalidated
By Reuben S. Seguritan
August 26, 2015
F-1 visa holders who are graduates of U.S. universities can receive work authorization under the Optional Practical Training (OPT) program for a limited period of 12 months after having been enrolled in their academic program for one full academic year. A student can have 12 months of OPT each for the bachelor’s, master’s, and doctoral levels.
In 2008, the Department of Homeland Security (DHS) published a rule extending the post-completion OPT of F-1 students who earn a degree in science, technology, engineering, or mathematics (STEM) for an additional 17 months.
On August 12, 2015, a federal court ruling vacated the rule extending the OPT period for STEM graduates. U.S. District Judge Ellen Segal Huvelle ruled that the DHS did not comply with the Administrative Procedure Act (APA) when it issued the regulation without notice and comment.
Fortunately, the judge stayed her ruling, finding that immediately vacating the rule would create “major labor disruption” for employers as well as cause “substantial hardship” to foreign students with work authorization who would be forced “to scramble to depart the United States.”
The court, therefore, gave the DHS until February 12, 2016 to comply with the notice and comment requirement. This means that students who were granted STEM OPT extension will continue to be authorized to work. Adjudication of pending applications will also continue.
Foreign students who are eligible may still apply provided they submit their applications before February 12, 2016. Students who qualify for the additional 17 months of OPT time must be currently engaged in the 12-month period of approved post-completion OPT, must be in the fields of science, technology, engineering or mathematics (STEM) and must be employed in a business enrolled in the E-verify program. Also, the student must be maintaining F-1 status. The USCIS is expected to issue guidance in light of this ruling.
The STEM OPT extension allows F-1 visa holders who are working under the Optional Practical Training (OPT) program to remain in the U.S. and continue working until the H-1B petition filed on their behalf is approved and their status changes effective October 1st, the start of the fiscal year.
This regulation also remedies the dilemma faced by F-1 students with OPT work authorization which ends one year after their graduation or usually in June. Under the regulation, these graduates no longer need to depart the U.S. and re-enter after a few months in time for the start of their H-1B employment.
The regulation likewise helps alleviate the problem of U.S. companies especially those with technology components who are in need of tech workers but are unable to hire eligible applicants because of the limited H-1B visa numbers each year.
The lawsuit was brought last year by the Washington Alliance of Technology workers which alleged there was no emergency tech worker shortage which justified circumventing the required notice and comment procedure. They also alleged that the DHS exceeded its authority when it created the STEM OPT program.
Although the court agreed with the plaintiffs on the procedural flaw, the court found that for years Congress recognized practical training regulations for foreign students and that the DHS interpretation in this area should be given deference. The DHS is expected to propose a rule for notice and comment before the date set by the court.
USCIS Begins Accepting H-4 Work Permit Applications
By Reuben S. Seguritan
May 27, 2015
The United States Citizenship and Immigration Services (USCIS) is now accepting work permit applications of certain H-4 spouses of H-1B non-immigrants who are in the process of obtaining green cards through employment.
The benefit is only available to the H-4 spouse of an H-1B visa holder who is either the principal beneficiary of an approved I-140 Immigrant Petition for Alien Worker or has been granted an H-1B extension under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), as amended.
Under AC21, H-1B workers may file for an extension of their H-1B status beyond the 6 years allowable period on H-1B status, if they are unable to adjust status before the end of the six-year period mainly because of delays in the adjudication of employment-based green card sponsorships or the unavailability of a visa number.
The USCIS issued an FAQ on the new H-4 rule. It clarified, among others that H-4 dependent spouses who are eligible for the benefit may apply for work permits as long as they are on a valid H-4 status. The validity of their employment authorization document (EAD) will be for the same period as their H-1B family member. The applicants may apply for renewal of their EAD as long as they remain eligible under the rule.
If the H-1B visa holder’s I-140 petition is revoked or he is no longer eligible for H-1B extension under AC21, the USCIS has the discretion to revoke the work permit issued. Also, both the H-1B visa holder and the H-4 dependent spouse must maintain their nonimmigrant status in order for the H-4 spouse to qualify for the benefit.
The H-4 spouse granted work authorization under this rule may work for any employer. The work permit is unrestricted. The H-4 spouse may even start a business and hire individuals as employees of the business.
The application is made on Form I-765, Application for Employment Authorization. If the H-1B visa holder is filing Form I-129 petition to extend his/her stay on H-1B status along with the H-4 dependent’s spouse H-4 extension of stay application, the application for work permit may be filed together with these applications.
If a new H-1B petition is being filed along with a new H-4 change of status application, the application for work permit may also be filed concurrently. However, before the USCIS can adjudicate the I-765 application, it must first determine if both are eligible for H-1B and H-4 status respectively.
Current rules require the USCIS to adjudicate a pending I-765 application within 90 days from receipt. If the application is not adjudicated by the 90thday, regulations require the USCIS to issue an interim Employment Authorization Document. In this case, however, the USCIS will not begin counting the 90 days until they make a decision on the H-1B petition and the H-4 application.
The applicant must submit the following to show eligibility for the benefit: evidence of H-4 non-immigrant status, evidence of qualifying spousal relationship with the H-1B visa holder such as marriage certificate, and evidence of the H-1B family member’s non-immigrant status.
If the H-1B visa holder has an approved I-140 petition, the applicant must submit evidence that the I-140 petition has been approved such as the Form I-797 Approval Notice.
If not, the applicant must show evidence that the H-1B spouse is a beneficiary of a permanent labor certification application or employment-based immigrant visa petition which was filed on his/her behalf 365 days or more before the expiration of the six-year H-1B period, and the application or petition remains pending. The labor certification application or I-140 petition must have been filed by the end of the worker’s fifth year in H-1B status.
There is no premium processing service available for I-765 applications under this new rule.
Filing Cap-Exempt H-1B Petitions
By Reuben S. Seguritan
April 29, 2015
Each year, the demand for H-1B visa continues to increase. In April 2013, the United States Citizenship and Immigration Services (USCIS) received approximately 124,000 H-1B petitions within the five-business day filing window. In April 2014, the number increased to around 172,500 petitions received within a similar timeframe.
This year, approximately 233,000 H-1B petitions were received during the first week of the filing period that ended on April 7, 2015. The number includes those filed under the 65,000 cap-subject petitions and the 20,000 advanced degree exemption.
With the dramatic increase in this year’s H-1B filings, the chance of employers getting an H-1B visa number for their prospective employees under the annual cap decreased to 36.5 percent.
On April 13, 2015, the USCIS conducted a computer-generated lottery process to determine which cases would be forwarded to the appropriate immigration service centers for adjudication and which ones would be returned.
The USCIS first used the lottery process to select the 20,000 petitions under the advanced degree exemption. Then, it randomly selected the 65,000 cap-subject petitions. Petitions under the advanced degree exemption which were not selected were also included in the lottery for the cap-subject petitions.
Approximately 148,000 petitions not selected in the lottery were rejected and returned with the filing fees. The historic number of H-1B filings this year is attributed to the growth of the U.S. economy.
Unfortunately, many U.S. companies would not be able to hire much-needed high-skilled workers this year due to the annual numerical cap which has remained unchanged for ten years. Many are hoping for Congress to finally address the issue.
In the meantime, the USCIS announced that it would continue to accept cap-exempt petitions.
H-1B petitions for new employment are exempt if the beneficiary will work at an institution of higher education or a related or affiliated nonprofit entity, a nonprofit research organization, or a governmental research organization.
In order to qualify as an “institution of higher education”, the institution must admit only high school graduates, is legally authorized to provide education beyond secondary education, provides bachelor’s degree programs or not less than 2-year programs that can be credited towards such a degree, is a public or nonprofit organization and accredited by a nationally recognized accrediting agency.
To be a related or affiliated nonprofit entity for purposes of the H-1B exemption, it must be connected or associated with an institution of higher education through shared ownership or control by the same board or federation; or be operated by the institution; or be attached to the institution as a member, branch, cooperative or subsidiary.
A “nonprofit research organization” is an organization engaged in basic research and/or applied research while a “government research organization” is a U.S. entity engaged in the performance or promotion of basic research and/or applied research.
J-1 physicians who have obtained a Conrad 30 waiver are also cap exempt.
Also, a petition is cap exempt if the current H-1B worker has already been counted against the cap. These petitions include those filed for an extension of H-1B status; those that change the terms of employment of an existing foreign worker with the same US employer; those filed for H-1B workers who are transferring to another US employer; and finally those filed for current H-1B workers for a second H-1B position.
H-2B Adjudication Resumes
By Reuben S. Seguritan
March 18, 2015
As of March 17, 2015, the United States and Immigration Services (USCIS) announced that it has resumed adjudication of H-2B petitions for temporary non-agricultural workers.
The USCIS suspended processing of H-2B petitions on March 5, 2015, a day after the Department of Labor (DOL) ceased processing prevailing wage determinations and applications for labor certification required under the H-2B program pursuant to an order of a federal district court in Florida.
The federal court vacated the DOL’s 2008 H-2B regulations, ruling that under the Immigration and Nationality Act (INA) the DOL does not have authority to issue regulations in the H-2B program.
The DOL filed an unopposed motion to stay the court’s order on March 16, 2015 stating that the USCIS will resume the processing of H-2B petitions based on temporary labor certifications issued by the DOL. The USCIS, however, announced that premium processing of H-2B petitions remains suspended until further notice.
The H-2B program allows U.S. employers to hire foreign non-agricultural workers to perform temporary services on a one-time, seasonal, peak load or intermittent basis. These workers are usually needed in the construction, health care, lumber, manufacturing, food service/ processing and resort/ hotel industries.
Each year the USCIS allocates 66,000 visas for the H-2B program, with 33,000 allocated for the first half of the fiscal year and 33,000 for the second half.
The first half of the fiscal year is between October 1 and March 31 while the second half of the fiscal year is between April 1 and September 1.
The USCIS has announced that the H-2B cap for the first half of fiscal year 2015 was reached on January 26, 2015. As of February 27, 2015, the USCIS received a total of 16,519 H-2B petitions for the second half of the fiscal year and 14,740 beneficiaries have been approved while 1,779 were pending.
The H-2B process starts with the filing of a temporary labor certification for H-2B employment with the U.S. Department of Labor. When the labor certification is issued, it must be attached to the H-2B petition on Form I-129 by the petitioner and filed with the USCIS.
The petitioner of an H-2B petition may be a U.S. employer or U.S. agent. However, the petitioner must show that the need is only temporary in nature. He must demonstrate that the work will terminate after a definite period of time.
Multiple beneficiaries may be included in a single H-2B petition if they will all be performing the same work for the same period in the same location.
The beneficiary of an H-2B petition may be in the United State or overseas. The H-2B petition can be filed with an unnamed beneficiary if the beneficiary is overseas and will be applying for the visa at a U.S. consular office abroad. However, if the name of the beneficiary is required to establish eligibility or that the beneficiary is not from a participating country, the beneficiary must be named in the petition.
When approved, the validity of the H-2B visa will reflect the period indicated in the labor certification. This should reflect the period of the employer’s need. Generally, the period granted is limited to one year which may be extended for another year up to a maximum of three years.
The Philippines as well as 67 other countries have been identified by the USCIS as participating countries under the H-2B program in a list released in January 2015. Five of these countries, namely, the Czech Republic, Denmark, Madagascar, Portugal, and Sweden, are new additions to the list.
An H-2B petition may be approved for a beneficiary who is not from any of the participating countries only if the Secretary of Homeland Security finds that it is in the interest of the U.S. to approve the petition.
Work Permit for Certain H-1B Spouses Available in May
By Reuben S. Seguritan
March 11, 2015
On May 26, 2015, the United States Citizenship and Immigration Services (USCIS) will begin accepting applications for employment authorization of certain H-4 dependent spouses.
The Department of Homeland Security (DHS) issued the final rule on February 24, 2015. According to the DHS, this is an important element of President Obama’s executive actions on immigration announced on November 20, 2014.
The H-1B program is one way that U.S. employers are able to hire high skilled workers in specialty occupations such as teachers, engineers, accountants, computer programmers, architects, therapists, among others. It has been frequently used by U.S. businesses to employ high-skilled foreign workers with degrees in science, technology, engineering and mathematics. The job requires as a minimum a bachelor’s degree or equivalent.
An H-4 dependent visa is available for the spouse and unmarried children under 21 of the foreign worker on H-1B status. The new regulation will provide work permits for H-4 dependent spouses of H-1B visa holders who are in the process of obtaining green cards through employment.
According to USCIS Director Leon Rodriguez, “Allowing the spouses of these visa holders to legally work in the United States makes perfect sense. It helps the U.S. businesses keep their high skilled workers by increasing the chances these workers will choose to stay in this country during the transition from temporary workers to permanent resident. It also provides more economic stability and better quality of life for the affected families.”
To qualify for the benefit, the H-4 dependent spouse must show that his/her H-1B nonimmigrant spouse is either the principal beneficiary of an approved I-140 Immigrant Petition for Alien Worker or has been granted an H-1B extension under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21), as amended.
A foreign worker is allowed a maximum period of 6 years on H-1B status. Under AC21, an H-1B worker may file for an extension of their H-1B status beyond 6 years if he/she is unable to adjust status before the end of the six-year period mainly because of delays in the adjudication of employment-based green card sponsorships and the unavailability of a visa number.
A post-sixth year extension is available to H-1B workers under AC21 if a labor certification application or employment-based immigrant visa petition was filed on their behalf 365 days or more before the expiration of the six-year H-1B period, and the application or petition remains pending. The labor certification application or I-140 petition must have been filed by the end of the worker’s fifth year in H-1B status.
Family members on H-4 dependent status are also eligible for the same period of extension granted to the principal H-1B beneficiary.
H-4 dependent spouses who are eligible for the work permit under this new rule must sign and submit Form I-765, Application for Employment Authorization. The completed form must be submitted with documentary evidence demonstrating their eligibility for the benefit along with the $380 filing fee. The check must be made payable to the U.S. Department of Homeland Security.
The USCIS, however, stressed that applications will not be accepted before the effective date of the new regulation on May 26, 2015.
Once approved, the qualifying H-4 visa holder will be issued an employment authorization document (EAD) which will allow them to work in the U.S. for the period indicated in the EAD. The validity of their EAD will be for the same period as their H-1B family member.
For the first year, the USCIS estimates around 179,600 applicants for work permit under this rule and 55,000 annually in the succeeding years.
DAPA and Expanded DACA Temporarily Blocked
By Reuben S. Seguritan
February 25, 2015
U.S. District Judge Andrew Hanen issued a temporary injunction on February 16 putting on hold the implementation of President Obama’s Deferred Action for Parental Accountability (DAPA) program and the expanded Deferred Action for Childhood Arrivals (DACA) program.
As a result, the Department of Homeland Security did not begin accepting applications for DACA under the expanded program last February 18 as planned.
Although DHS Secretary Jeh Johnson strongly disagreed with Judge Hanen’s decision, he affirmed that the DHS will comply with the decision. He, however, clarified that the ruling does not affect the existing DACA program launched in 2012. The order does not also affect the Department’s authority to implement enforcement priorities established in the November 20, 2014 memorandum.
The lawsuit seeking to prevent the Obama Administration from implementing the executive actions was filed on December 3, 2014. Texas leads 25 other states in the lawsuit, namely, Alabama, Arizona, Arkansas, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Maine, Michigan, Mississippi, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, West Virginia, and Wisconsin.
In issuing the temporary injunction, Judge Hanen based his decision on the claim that the administration did not comply with the Administrative Procedures Act. He has yet to rule on the merits of the case. The order effectively halts the implementation of the programs until the case is resolved.
The White House will appeal the order. Josh Earnest, White House press secretary said, “We will seek that appeal because we believe when you evaluate the legal merits of the arguments, that there is a solid legal foundation for the president to take the steps he announced last year to help reform our immigration system.”
Immigrant rights advocates also took issue with Judge Hanen’s basis for issuing the order. The American Immigration Lawyers Association, in a statement, pointed out, “His injunction is not based on constitutional grounds; it is based on procedure, finding flaws under the Administrative Procedure Act. It is almost as if he was desperate for a way to block these initiatives and grasped any straw he could.”
They remain confident that the lawsuit, just like previous legal challenges, will also fail. It can be recalled that last December, a politically motivated lawsuit was dismissed when Sheriff Joe Arpaio contended that President Obama’s announcements in November 2014 were unconstitutional.
Similarly, in 2012, Mississippi’s lawsuit challenging the legality of the original DACA program was also dismissed. In that case, the judge found that the perceived economic hardship claimed by the state was not based on facts.
President Obama, for his part, is confident that Judge Hanen’s order will be overruled. According to him, “The Department of Homeland will continue with the planning because we want to make sure that as soon as these legal issues get resolved – which I anticipate they will, in our favor – that we are ready to go.”
Meanwhile, the Department of Justice has filed for an “emergency stay” of the court order, pending appeal, or in the alternative, to stay its order beyond application in Texas. If the stay is granted, DHS can finally begin accepting requests for DACA under the expanded program as well as requests for DAPA in May as scheduled. Millions of immigrants hoping to benefit from both programs would not have to wait many months for the decision on the appeal.
This recent development on the President’s executive actions may have delayed the implementation, but it has not dampened the hopes of the immigrant community. As Karen Tumlin, Managing Attorney of the National Immigration Law Center pointed out, “We’ve hit a speed bump on the road to the implementation of these programs, but folks should stay the course, get their documents ready, prepare to apply, because the programs will open their doors eventually.”
H-1B Filing Period To Start April 1
As the start of the H-1B filing season draws near, employers looking to sponsor foreign workers in specialty occupations are urged to get their petitions ready before the filing window opens on April 1, a Wednesday.
Every year, the United States Citizenship and Immigration Services (USCIS) allocates a maximum of 65,000 new H-1B visas with an additional 20,000 visas available to graduates with advanced degrees from U.S. universities.
For the past two years, the number of H-1B petitions filed during the first week of filing exceeded the annual H-1B visa quota. In 2013, approximately 124,000 petitions were filed during the five-day filing window. In 2014, around 172,500 petitions were filed within the same number of days.
This year, it is expected that H-1B filings will again exceed the annual cap during the first five days of the filing season. The demand for cap-subject H-1B numbers for fiscal year 2016 which begins on October 1, 2015 is predicted to be even higher than last year. To increase the chances of getting an H-1B visa number, employers should prepare in advance to ensure that the petitions are received by the USCIS between April 1 and April 7.
Before the actual filing with the USCIS, the H-1B employer must obtain a certified labor condition application (LCA) from the Department of Labor.
The employer makes several attestations in the LCA including a promise to pay the required wage to the worker for the entire period of the authorized employment.
The employers also attest in the LCA that the current employees and the union, if any, are given notice of the petition and that there are no strike or lockout in the occupational classification at the place of employment.
The H-1B employer must also have documentary evidence of the beneficiary’s educational background and work experience to make him/her eligible for H-1B classification. Documentary evidence includes diploma, transcript of records, credentials evaluations and license to practice the profession, if required, among others.
A U.S. employer cannot file multiple H-1B petitions for the same beneficiary. Multiple H-1B petitions by a single employer for the same beneficiary will be rejected. However, related employers such as a principal and subsidiary may file for the same worker for different positions subject to other requirements. The H-1B beneficiary may work for more than one employer provided that each employer files a separate petition with the required labor condition application.
Employers must make sure that the petition made on Form I-129 is properly completed. There is a base fee of $325 for an H-1B petition, an ACWIA fee of $750 or $1,500 depending on the number of employees of the employer and an anti-fraud fee of $500.
Processing of H-1B petitions may be expedited through premium processing request on Form I-907. This may be filed concurrently with the H-1B petition. For a fee of $1,225, premium processing guarantees a fifteen calendar day processing of filed petitions from receipt of the request.
For two consecutive years now, the USCIS has conducted an H-1B lottery to select at random the petitions required to reach the cap from the pool of petitions received on the final receipt date. The petitions not selected in the lottery process as well as those filed after the final receipt date were rejected and returned with the filing fees.
There is no doubt that the annual limit on H-1B visa number can no longer keep up with the demand of U.S. companies. Many are hopeful that Congress will finally address this problem. In the meantime, if the H-1B quota is reached this year as predicted, U.S. employers will have to rely on luck whether they can hire much-needed high-skilled workers for fiscal year 2016.
Senate Bill to Increase Annual H-1B Cap
Bipartisan efforts in the U.S. Senate are once again sparking hope for a meaningful and sensible change to the country’s immigration laws. The new proposed bill entitled, “Immigration Innovation or I-Squared Act of 2015” introduced on January 13, 2015, focuses mainly on expanding laws applying to high-skilled guest workers.
Under present law, a maximum of 65,000 new H-1B visas are issued each fiscal year. An additional 20,000 visas are made available to graduates with master’s degree or higher from U.S. universities.
For years, U.S. companies especially those with technology components have been clamoring for a significant increase in the number of new H-1B visas issued per year. The annual H-1B cap of 65,000 which has remained unchanged for ten years can no longer keep up with the demand of the present time. An increase to the current cap would allow U.S. companies to hire much-needed high-skilled workers
In April 2013, the United States Citizenship and Immigration Services (USCIS) received approximately 124,000 petitions in one week’s time and in April 2014, the number increased to around 172,500 petitions which the USCIS received within a similar timeframe.
The proposed I-Squared Act seeks to increase the current annual H-1B visa cap from 65,000 to 115,000, and if there is high demand, it would even allow for an increase of up to 195,000 per year. The proposed bill would also eliminate the 20,000 limit on advanced degree petitions.
The proposal is seen to benefit U.S. companies in need of workers with advanced degrees from U.S. universities in the Science, Technology, Engineering, and Math (STEM) disciplines.
The proposed bill would also allow dependent spouses of H-1B visa holders to work, increase worker mobility so they can change jobs with ease, allow dual intent for foreign students, recapture unused green cards approved by Congress in previous years but were not used, and exempt from visa caps, “persons of extraordinary ability,” “outstanding professors and researchers,” U.S. degree holders in STEM disciplines, and dependents of employment-based immigrant visa recipients.
Many have high hopes for this proposed legislation which is authored by Senators Orrin Hatch (R-Utah), Marco Rubio (R-Florida), Jeff Flake (R-Arizona), Amy Klobuchar (D-Minnesota), Chris Coons (D-Delaware), and Richard Blumenthal (D-Connecticut).
According to Sen. Chris Coons (D-Delaware), “Our immigration system is broken, though, and while I still believe the Senate should come together again on comprehensive immigration reform, it’s important that we make progress in the areas that Democrats and Republicans do agree on…”
It can be recalled that the remaining embers of hope for a comprehensive legislative fix to the broken immigration system died in the hands of House Republican leaders who snubbed and refused to even take up the Senate-passed comprehensive immigration reform bill.
Although the partisan divide on this particular bill is clear, it seems that other proposed bills on immigration also suffered the same fate. In 2013, the bill, S. 169, which mirrors the proposed I-Squared Act, did not even make it beyond the committee level.
Meanwhile, another bipartisan bill, known as “The Startup Act” was also introduced in the Senate on January 16, 2015. The proposed bill seeks to create, among others, an entrepreneur’s visa which will allow foreign-born entrepreneurs to remain in the U.S. to launch businesses and create jobs.
This proposed bill introduced by SenatorsJerry Moran (R-Kansas) and Mark Warner (D-Virginia), together with Chris Coons (D-Delaware), Roy Blunt (R-Missouri), Tim Kaine (D-Virginia) and Amy Klobuchar (D-Minnesota), is the fourth version of the “Startup Act” which they have been working on for more than three years.
The fate of these proposed legislations remain uncertain. However, it is high time that our legislators set aside partisan politics and put in place reforms that have been long overdue.