H-1B Bill Seeks Changes

Posted on June 14, 2016 by Arjun Mishra

New H-1B Bill Seeks Fundamental Changes to the Program

A new bill – The High Skilled Integrity and Fairness Act of 2015 – is poised to be introduced by two Californian legislators: Zoe Lofgren (D) and Darrell Issa (R). The bill proposes multiple changes to the H-1B visa and employment-based immigration, particularly to the H-1B lottery. The highlights of the bill are listed below:

It will fundamentally alter the way the lottery works. The lottery process is shrouded in mystery, hence a lawsuit to extract information. Theoretically, all petitions are equally treated. This bill proposes giving employers who pay their prospective H-1B employees the most over the prevailing wage the best chance at success in the lottery. For example, an IT company that is willing to pay its Software Developer 200% of the prevailing wage will have an advantage over the IT company that is going to pay its Software Developer a dollar above the prevailing wage.
Wages would not solely determine a petition’s chance at success in the new lottery. Also taken into consideration would be companies that hire US workers mainly. H-1B dependent employers would be prejudiced in favor of those companies.
20% of the lottery H-1B visas would be allocated to small companies (firms with fewer than 50 employees). This is to address the complaint of small and medium companies that a few large companies eat up all of the H-1B visas in the lottery.
H-1B dependent employers currently have to pay a $60,000 salary to count themselves as exempt from the recruitment process. That threshold would increase to $130,000 under the bill. There may be a loophole if the employer petitions the employee for a Green Card.
Per country caps on employment-based immigration visas would be eliminated. There are 140,000 employment-based immigrant visas available a year. The nationals of a country cannot obtain more than 7% of that number. By sheer population, that puts nationals of India and China at a major disadvantage, and they have to spend extraordinary times waiting for their Permanent Residence, despite approved employment-based immigration petitions.
The L-1 visa remains untouched by this bill. There is no mention of filing fees, which are due to increase anyway. Certain companies have been hit with an enormous filing fee for H and L visa petitions.

List most legislation concerning immigration reform, this could go by the wayside. The legislative process may create even more changes or dilute some of the proposals.

STEM List – 24 Month Extension

Posted on June 8, 2016 by Arjun Mishra

SEVP Releases STEM 24 Months List

DHS recently published a rule allowing OPT students in the STEM fields (Science, Technology, Engineering, Mathematics) to extend their Optional Practical Training for 24 months. This is especially beneficial to OPT students who intend to stay in the USA and find post-graduate employment because it allows them more opportunity for the H-1B lottery. The H-1B visa is often the appropriate option for a recent graduate in a “specialty” occupation. All of the fields listed qualify as STEM and for the 24 months.

H-1B Lottery Lawsuit

Posted on May 24, 2016 by Arjun Mishra

Lawsuit Against H-1B Lottery: Case Seeks Information on the Lottery Process

The American Immigration Council has filed a lawsuit against USCIS, demanding transparency in the lottery process that affects the lives of hundreds of thousands of individuals and thousands of companies. With a statutory cap of 65,000 visas in the regular cap and 20,000 visas in the US Master’s cap, the over 230,000 applications that are submitted in the first week of April are subject to a lottery. However, there is no information on how that lottery works. Applications are submitted in early April and then receipt notices and lottery rejections trickle in over the next months.

In some years, the cap is not reached and there is no need for a lottery. However, for the past few years, the number of applications has been over 200,000 and the cap is reached in the first week of April. As this has become consistent, the need for lottery transparency has become urgent for the American Immigration Council. All that is known about the process is that it is random and computer generated. The lawsuit seeks to elicit more information from USCIS in how this process is conducted.

Demand to Speed Up U Visas

Posted on May 18, 2016 by Arjun Mishra

Organizations Demand U Visa Applications Speed Up

U Visa processing times have stalled for a year. Since June 2015, U visa applications have essentially not been adjudicated. Congress has mandated 10,000 U visas are available per year. That means once 10,000 U visas are granted, the other approvable U visas are waitlisted and backlogged. USCIS has a practice of placing U visa candidates on a wait list, so at least they can obtain an employment card while waiting for U visa approval.

The U visa is partly a humanitarian safe haven for immigration. It allows an applicant to overcome many grounds to inadmissibility, though a waiver can be required. The U visa is a grant of legal nonimmigrant status to someone who has been the victim of a qualifying crime. It requires certification from a government agency, such as the police department that handled the crime. The applicant must have also been willing to or actually have helped in the prosecution of the perpetrator. There is the potential for adjustment to Permanent Residence for U visa applicants and their derivative family members.

USCIS has had some dismal processing times recently affecting all swathes of the immigration spectrum. H-1B and L-1 processing times have been abnormally lengthy. This has caused issues for employees with driver’s licenses, college tuition, and travel. It has caused employers to pay the $1,225 premium processing fee for occasions that should not require it. U visa applications are at a standstill. Employment authorization applications are taking triple the amount of time that they mandated to take for first time asylum applications, and they are pushing against their regulatory period for all other types of applications. Green Card applications through employment-based petitions are beyond processing times. O and P visa petitions are 5xs beyond normal processing of two weeks. If you look at processing times for the service centers, you will see that they are well beyond their stated goals for processing times. USCIS has blamed the slow processing on a lack of resources, as evidenced in its proposed comment for increasing filing fees by 21%.

USCIS Proposed Fees for Employers

Posted on May 5, 2016 by Arjun Mishra

How the Proposed Fee Increase Hurts Employers

If you are an employer that files immigration petitions, especially H-1B and L-1 petitions, you might have noticed that there was an additional fee levied upon certain employers on file H-1B and L-1 petitions. That was in December. DHS is proposing to increase its filing fees for all of its petitions by a weighted average of 21%. These are what the proposed fees are likely to look like:

E, H, L, O, P, Q, R Petitions – $325 becomes $460

Immigration Petition Fee – $580 becomes $700

Premium Processing Fee – $1225 still, but USCIS would like an increase

USCIS has maintained its fees since 2010. The primary reason for increasing the fees, DHS claims, is that current fees are not generating enough revenue to fund their operations.

The timing of the fee increase seems particularly unfortunate. USCIS is well-behind their stated goals in adjudicating many of the aforementioned petitions. Change and extension of status petitions are taking over 6 months for H and L petitions. O and P petitions are usually adjudicated within two weeks. They are currently approaching three months. Because the timing of adjudication is lengthy, it is causing problems for many employers and employees. Premium processing requests are being foisted because of issues with driver’s licenses, among others. A 240 day extension for employment authorization goes into effect once the employee hits her final day of work authorization on her visa. The extension only goes into effect if the extension is timely filed. The lengthy adjudications have been problematic for months.

The Administrative Procedures Act gives 60 days for comments. July 5, 2016 is the final day to comment. The link to comment is here.