Corporate Immigration Law News

Each year, NJICLE’s comprehensive Immigration Conference provides an in-depth exploration of the most pressing concerns confronted by Immigration Law Attorneys, Employment Lawyers, Human Resource Representatives and In-House Counsel, and offers effective strategies for dealing with those concerns.

This Conference presents a rare opportunity to hear directly from heads of the governmental agencies (Ombudsmen of USCIS, CBP, ICE, CIS, DOS) who directly affect immigration/labor policy and procedure. You won’t find a better opportunity to catch up on all of the latest developments – this one-day program is packed with information that will help you navigate changes in the law and meet current challenges.

This year we will be reviewing recent and significant changes to US immigration policies and how they will shape America’s immigration policy going forward. Representatives from various key governmental agencies responsible for implementing these changes, together with prominent attorneys who are involved with organizations that have been spearheading many of the efforts to address issues under the new administration, are expected to attend. Don’t miss out on this essential advanced annual immigration conference – make your plans to attend today. Register here.

On March 19, 2019, U.S. Citizenship and Immigration Services (“USCIS”) announced that it will accept premium processing requests (i.e., Form I-907, Request for Premium Processing Service + an additional $1,410 USCIS filing fee) for fiscal year (“FY”) 2020 H-1B cap-subject petitions filed on April 1-5, 2019, but only if the petition meets two (2) conditions. Specifically, the sponsoring employer must (i) request a “change of status” on the Form I-129 [meaning the H-1B candidate must be physically present in the U.S. at the time of filing] and (ii) file the Form I-129 concurrently with the Form I-907 [meaning later requests for conversions to premium processing will not be accepted until June 2019]. For additional details click here.

If you have questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.

This is a reminder to all U.S. employers of the rapidly approaching April 2019 deadline for the filing of H-1B cap cases for Fiscal Year 2020. USCIS will start accepting cap-subject petitions on Monday, April 1, 2019.

Given continued pent-up demand, we fully expect the H-1B cap to be reached during the first week of April.  As usual, USCIS will continue to accept petitions during the first five (5) business days; i.e., through Friday April 5, 2019.  As such, we strongly encourage you to identify any employees who may require H-1B sponsorship and contact us as soon as possible to begin preparing your H-1B petitions for a timely filing.

Assess Your Cap-Subject H-1B Needs:

H-1B visas are available for specialty (professional) occupations requiring at least the attainment of a bachelor’s degree or its equivalent in a relevant discipline. For current or prospective employees, U.S.- based employers should take the time to consider who the Company may need to sponsor for an H-1B for Fiscal Year 2020.

Here are some of the most common candidates for an H-1B under the annual cap:

• F-1 visa holders (student interns / recent graduates) who are working for you pursuant to an Employment Authorization Document issued in connection with an approved period of post-grad Optional Practical Training (OPT);

• F-1 visa holders (student interns) who are working for you while in school pursuant to university-approved Curricular Practical Training (CPT);

• J-1 visa holders (interns/trainees) whose training programs will expire and who will need a change their status from J-1 to H-1B in order to continue working for you;

• TN employees (Canadian and/or Mexican NAFTA professionals) who may desire an H-1B if applying for adjustment of status to that of a lawful permanent resident;

• L-1B visa holders (intra-company transferees with specialized knowledge) approaching the end of their initial 3 years of L-1B eligibility who may need to switch to an H-1B to gain an additional year of work authorization and for whom a change of status is a necessary component to planning your long-term strategy of pursuing lawful permanent residence for that employee;

• O-1 visa holders who are coming up for expiration within the next year as O-1s are renewable in only 1 year increments (as compared to a 3 year period for an approved H-1B); and

• Potential candidates who are living and working abroad and have not been previously counted against the H-1B cap.

PLEASE NOTE: the H-1B cap applies only to “new” H-1B petitions. As such, current H-1B employees seeking to file an extension of stay or existing H-1B workers for whom you may desire to file an H-1B transfer petition are not subject to the H-1B cap.

The Importance of Early Preparation:

As you may know, as a result of the Trump Administration’s Buy American, Hire American (BAHA) Executive Order and related policies, H-1B petitions are now facing a heightened level of scrutiny leading to a significant increase in the number of Requests for Further Evidence (RFE) and even denials.  As such, gathering the necessary supporting documentation and preparing the H-1B visa petition are much more labor intensive than before.  Early preparation is therefore essential.

If you have any questions about the H-1B visa cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact Anthony F. Siliato or Scott R. Malyk.

USCIS announced yesterday that it will resume premium processing on Tuesday, March 12, for all H-1B petitions.

When an H-1B petitioner requests the premium (or expedited) processing service by filing a Form I-907 and paying an additional USCIS filing fee of $1,410, USCIS will guarantee an adjudication (either an approval or the issuance of a request for additional evidence) within 15 calendar days of the filing date.  A request for premium processing can be done in conjunction with the initial filing of the H-1B petition or, alternatively, a pending case can be converted to premium processing to expedite its adjudication.  Likewise, if you have received a request for additional evidence (RFE) on a pending H-1B petition, you can include the request for conversion to premium processing with the RFE response so that the case may be adjudicated within 15 calendar days from the Service’s receipt of the RFE response.

While USCIS’ announcement indicates that all H-1B petitions are eligible for premium processing, it is not yet clear whether or not H-1B petitions filed in April under this year’s cap are eligible.  Clarification should come shortly in this regard.

If the USCIS does not take adjudicative action within the 15 calendar day processing time, upon request, the Service will refund the petitioner’s premium processing service fee and will continue with expedited processing of the petition.

For additional information on the resumption of premium processing click here to access the USCIS website.

If you have questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.

A federal judge in Newark is presiding over a lawsuit brought by employers against the federal government over H-1B visas

A technology business association is fighting a legal battle in Newark, New Jersey against the federal government over the bureaucracy’s handling of H-1B, or specialty occupation, visas.

The Small and Medium Enterprise Consortium is accusing the government of changing its requirements to prove an employee-employer relationship, therefore making initial H-1B visas or visa extension much harder than before.  (Read full text of the article here.)

If you have questions in connection with any of the foregoing, please contact Anthony F. Siliato and Scott R. Malyk of our firm’s Immigration Law Group.