Our Immigration Practice is international in scope, with an emphasis on corporate and employment-related immigration matters.
We are pleased to announce that Anthony F. Siliato was recognized in the 2017 Edition of U.S. News & World Report – Best Lawyers In America. He was also recognized by Who’s Who Legal: The International Who’s Who of Corporate Immigration Lawyers (2017).
Meyner and Landis LLP received the highest ranking available (a Tier 1 ranking) in the 2017 Edition of U.S. News & World Report – Best Lawyers “Best Law Firms in New Jersey” for Immigration Law.
U.S. Citizenship and Immigration Services (“USCIS” or the “Service”) recently announced a final rule that will (in some cases, dramatically) increase the filing fees required for most employment-based (and family-based) immigration applications and petitions filed with the Service. The new fees will become effective December 23, 2016.
According to USCIS, this is the first fee increase in six (6) years, since November 2010, necessary to “recover the full cost of services provided by USCIS”, including costs associated with fraud detection and national security, customer service and case processing, and providing services without charge to refugee and asylum applicants and to other customers eligible for fee waivers or exemptions.
The final rule contains a table summarizing current and new fees, summarized below. Under the new rule, any application or petition mailed, postmarked or otherwise filed on or after December 23, 2016 must include the new fees.
| Form | Title | Current Fee | New Fee |
|---|---|---|---|
| I-129/I-129CW | Petition for a Nonimmigrant Worker | $325 | $460 |
| I-131/I-131A | Application for Travel Document | $360 | $575 |
| I-140 | Immigrant Petition for Alien Worker | $580 | $700 |
| I-485
*Includes the cost of Forms I-765 and I-131 filed concurrently, but does not include $85 biometrics fee |
Application to Register Permanent Residence or Adjust Status | $985* | $1,140* |
| I-485 | Application to Register Permanent Residence or Adjust status (certain applicants under the age of 14 years) | $635 | $750 |
| I-526 | Immigrant Petition for Alien Entrepreneur | $1,500 | $3,675 |
| I-539 | Application to Extend/Change Nonimmigrant Status | $290 | $370 |
| I-765 | Application for Employment Authorization | $380 | $410 |
| I-90 | Application to Replace Permanent Resident Card | $365 | $455 |
| I-129F | Petition for Alien Fiancé(e) | $340 | $535 |
| I-130 | Petition for Alien Relative | $420 | $535 |
| I-751 | Petition to Remove Conditions on Residence | $505 | $595 |
| N-400 | Application for Naturalization | $595 | $640 |
If you have any questions about the filing fee increases, or about any other immigration matter, please do not hesitate to contact us.Of particular note to employers, the filing fee for Form I-129 (used in certain H, L, TN and E-3 classification requests) will increase from $325 to $460 (representing ~ 42% increase); the filing fee for Form I-140 (Immigrant Petition for Alien Worker) will increase from $580 to $700 (representing ~ 20% increase); and the filing fee for a travel document will increase from $360 to $575 (representing a ~60% increase!). We can only hope that the increase in fees will result in a reduction in processing times for employment-based petitions (e.g.; a reduction in the current 12-13 month processing time of H-1B extensions!)
Please follow us on Twitter @ML_Immigration to stay tuned for further developments.
Scott R. Malyk has been named First Vice Chair of the New Jersey State Bar Association’s Immigration Law Section. He is a Partner with Meyner and Landis LLP in Newark, NJ and is a member of the firm’s Immigration Law Group. He specializes in all aspects of corporate and business-related immigration law. Scott represents domestic and multinational corporations and their employees, providing guidance in connection with the hiring, transfer and retention of international personnel worldwide. This includes counseling business clients in areas of worksite compliance, including I-9 audits and investigations, H-1B public access file compliance and electronic verification (E-Verify) requirements.
As many of you are still reeling from abysmal H-1B cap results as a result of a record number (236,000) of H-1B cap-subject filings this year, we must now turn our attention immediately to define viable alternative visa options for those foreign graduates who were not fortunate enough to be selected in the H-1B lottery. The purpose of this update is to discuss recent regulatory changes, effective May 10, 2016, to one of the most common alternatives to the H-1B classification, the STEM/OPT extension.
In the past, one of the common alternatives to the H-1B classification for employers with recent foreign national university graduates who were not selected in the H-1B lottery, but who possess qualifying Science, Technology, Engineering or Math degrees (so-called “STEM” degrees), was the ability for that foreign graduate to apply for a 17 month STEM extension of their Optional Practical Training (OPT) work authorization. Until recently, the requirements to secure this STEM/OPT extension were simple and did not require any extensive involvement of the employer. Specifically, the regulatory requirements were as follows:
Unfortunately, the days of the straightforward STEM/OPT work authorization extension process are now behind us. In exchange for agreeing to lengthen the STEM/OPT period of work authorization (from 17 months to 24 months), there is a new, somewhat rigorous regulatory scheme, effective tomorrow, May 10, that now requires additional cooperation from the employer by way of an affirmative filing made by the employer.
More specifically, beginning on May 10, any qualifying STEM graduate wishing to apply for his/her STEM/OPT extension is responsible for the demonstrating the following:
Please note: If your 17-month STEM/OPT extension was already approved, in order to request the balance of the 24 month extension (the additional 7 months), you must have at least 150 calendar days remaining prior to the end of your 17-month STEM/OPT extension at the time you file the Form I-765.
In order to obtain the DSO’s OPT extension recommendation (#4 above), the graduate, together with the employer, must now complete and submit to the DSO the newly-minted Form I-983 Formal Training Plan for STEM OPT Students. The Form I-983 is a mandatory application and requires both the employee and employer to satisfy several new training and verification requirements. With regard to the employer, the Form I-983 requires you to attest, under penalty of perjury, the following:
Here are the benefits of the new STEM/OPT regulations:
On the downside, these newly-minted STEM/OPT regulations have added reporting requirements for the student and employer to maintain compliance with these STEM/OPT training programs (under the threat of DHS audit). Some of the most salient reporting requirements include the following:
The next few days, weeks and months are bound to be hectic and unsettling to your foreign graduate OPT and STEM/OPT employees who will, no doubt, be inquiring as to whether your business will assist them in navigating these new regulations. While we will be reaching out separately to each of our clients to discuss options for your foreign graduates who were not selected in the H-1B lottery, we would strongly urge you to contact us for assistance with navigating these uncharted waters, especially completing and submitting the new Form I-983 Formal Training Plans.
On March 11, the Department of Homeland Security (DHS) issued the highly anticipated final rule permitting qualifying F-1 foreign students with science, technology, engineering and math (STEM) degrees earned in the United States to extend their optional practical training (OPT) work authorization period by 24 months, in addition to the 12-month standard period of OPT available for all F-1 foreign graduates in all fields. This 24-month extension effectively replaces the 17-month STEM OPT extension previously available under the prior regulation. The new rule will become effective on May 10, 2016.
The net result of this new STEM OPT rule is that qualifying STEM graduates will now receive an aggregate of 36 months of STEM OPT work authorization in the United States, thereby permitting foreign students to remain in the United States after graduation to work and receive practical training relating to one’s respective field of study. The new STEM OPT extension also offers employers an additional 7 months to review the performance of foreign STEM OPT workers prior to deciding whether to pursue temporary (H-1B) or permanent employment (green card) sponsorship. Thus, the new rule allows STEM graduates and employers more flexibility and makes the United States an even more attractive destination for potential STEM international students.
Practical Effect Of The New Rule:
Beginning on May 10, U.S. Citizenship and Immigration Services (USCIS) will issue Requests for Further Evidence (RFEs) asking students with pending STEM OPT extension applications whether they wish to amend their application from 17 to 24 months. Alternatively, students with pending applications also have the option to withdraw and re-file a new application with a 24-month request, but with the caveat that a student can only apply for a STEM OPT extension if post-completion OPT has not yet expired.
Students who have already received a 17-month STEM EAD will be able to file for a 7-month extension between May 10, 2016 and August 8, 2016, so long as 150 days still exist before the expiration of their 17-month STEM EAD and they file within 60 days of the date their Designated School Official (DSO) enters the recommendation for the 24-month STEM OPT extension into the student’s SEVIS record and other requirements are met, and they meet all other requirements for the 24-month STEM OPT extension.
The new STEM OPT rule, in combination with the existing H-1B cap-gap rules, will now permit many qualifying STEM graduates 3 “bites at the apple” at the H-1B lottery instead of 2. With the possibility of 3 full years of work authorization, some employers may opt to pursue sponsorship for permanent residency (for STEM graduates who are from countries with available visa numbers) rather than rely on obtaining work authorization through the highly coveted H-1B program.
Employer Obligations:
Consistent with the former rule, STEM OPT extensions are only available for students working for employers who are participating in the E-Verify program. The new STEM OPT rule also adds increased oversight of the STEM OPT program, including: (i) individualized training plans developed by the employer and the student; (ii) regular student reporting to the college/university’s DSO; (iii) completion by the employer of an attestation that the student will not replace U.S. workers; (iv) a requirement that STEM OPT students are offered the same terms and conditions (including compensation) as similarly situated U.S. workers; and (v) limitation of the extension to students with degrees from accredited schools.
Conclusion:
The new rule was drafted in order to resolve the challenge to the faulty administrative process utilized to pass the STEM OPT rule created under the Bush Administration. In addition to reviving the STEM OPT extension in compliance with required rulemaking procedures, DHS took the opportunity to extend the validity period. This is certainly a welcome result, especially when one considers the grim 33% chance a foreign national graduate faced last year in connection with being selected in the H-1B lottery.
If you have any questions about the STEM OPT extension or its potential effect on the H-1B cap, or would like to discuss appropriate alternatives to the H-1B category, please do not hesitate to contact us.
Please follow us on Twitter @ML_Immigration to stay tuned for further developments.
In a largely anticipated move, the US District Court for the District of Columbia granted DHS’ motion to extend the Stay Order of the STEM OPT program, permitting the program to continue to exist under its current regime for an additional 90 days.
In August 2015, the STEM OPT program, which allows foreign national graduates of U.S. universities to extend their post-graduate work authorization an additional 17 months if (i) the graduate’s degree falls within the list of approved STEM disciplines and (ii) the STEM employer is enrolled in E-Verify; was dissolved by the District Court on procedural grounds. Such dissolution, however, was initially stayed for six (6) months to allow DHS time to fix the program’s procedural deficiencies. With the recently granted extension of the stay, the District Court has now ensured that the current STEM OPT regulations will remain in effect until May 10, 2016, and has further given DHS some additional time to vet the overwhelming volume of public comments it received about the existing program and to make any necessary changes.
While this decision was not a surprising one, it does come as welcome news to the more than 23,000 STEM OPT participants currently working in the United States. In particular, if the stay was not granted beyond April 1, many of the STEM OPT graduates would no longer have been eligible to apply for H-1B visas under this year’s H-1B cap as many would no longer be work authorized leading up to the April 1 filing date and, thus, would no longer be eligible for the automatic OPT extension provided by the “Cap Gap” measure initiated by USCIS.
This process, however, is far from over, as DHS will still need to review the public comments on its newly proposed STEM OPT amendments and implement a final rule by May 10, 2016. Our firm will continue to monitor the progress of the STEM OPT program and will keep you updated on any new developments. Stay tuned!
It’s that time of year again! The April 1, 2016 “deadline” for the filing of H-1B cap cases for Fiscal Year 2017 is rapidly approaching, and given pent-up demand, we fully expect the H-1B cap to be reached on opening day. As usual, USCIS will continue to accept petitions during the first five (5) business days; i.e., through Thursday, April 7, 2016. However, once the H-1B cap has been reached, employers will be unable to file new cap-subject H-1B petitions for a full year, until Monday, April 3, 2017. 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 April 1 filing.
HR ACTION NEEDED: 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 transferring 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 2017.
Here are some of the most common candidates for an H-1B under the annual cap:
PLEASE NOTE: the H-1B cap applies only to “new” H-1B petitions. As such, current H-1B workers seeking to file an extension of stay or a transfer petition are not subject to the H-1B cap.
The Importance of Early Preparation:
Cap-subject H-1B petitions are accepted by USCIS on a “first-come-first-serve” basis. Any petitions filed after the cap is met will be returned and cannot be re-filed until the following year.
To assure a timely filing, Labor Condition Applications (“LCAs”) should be submitted to Labor Department by the beginning of March, and petitions should be ready for filing before April 1, 2016. With that said, gathering the necessary supporting documentation and preparing the H-1B visa filing materials can be time consuming. Preparation includes assembling background and educational documents, drafting and signing letters and forms, and submitting an LCA with the Labor Department for certification. 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 us.
Please follow us on Twitter @ML_Immigration to stay tuned for further developments with the H-1B cap filing season.
Tags: 2017 Cap, 2017 Visa, advanced degree petition, alternative to H-1B visa, EAD, F-1, FY 2017 H-1B Cap, H-1B alternative, H-1B cap, H-1B Lottery, H-1B quota, H-1B visa cap, H-1b visa cap news, H-1B Visa News, H-1B visas remaining, h1b visa, LCA, OPT, Specialty Worker, US Masters Cap, USCIS, USCIS cap
In a largely unanticipated move, the State Department (“DOS”) announced on Friday that it significantly rolled back the Adjustment of Status (“AOS”) application filing cut-off dates it established under the Obama Executive Action less than three (3) weeks ago. Specifically, on September 25, DOS released a revised visa bulletin for October 2015, superseding the bulletin that was originally published on September 9. The revised October Visa Bulletin contains new and earlier filing cut-off dates than those dates contained in the original October Visa Bulletin issued on September 9.
These revised filing cut-off dates are apparently a response to USCIS concerns over the Service’s ability to process such a huge volume of AOS applications. In response to such concerns, the “Dates for Filing Visa Applications” for certain visa preference categories, particularly the employment-based second preference (EB-2) category for China and India, have been significantly rolled back.
The retrogression of these filing cut-off dates will serve to dramatically reduce the number of individuals permitted to pre-file for Adjustment of Status on October 1 based on the originally published October Visa Bulletin. This sudden reversal of filing cut-off dates is a great disappointment to employers, their foreign national employees, and immigration professionals alike, all of whom had already begun the process of preparing a number of filings in reliance upon the anticipated October 1 filing date.
Litigation has ensued against the Federal Government – only time will tell if such litigation will yield a positive outcome.
Stay tuned!
Tags: adjustment of status, Department of State, DOS, EB-2, Green Card News, I-485, Immigration Reform, USCIS News, Visa Bulletin
Today, the U.S. Department of State (DOS) announced a significant reform to the way the agency forecasts green card availability (through the issuance of a monthly Visa Bulletin) for employment-based green card applications. This reform now makes it possible for eligible employer-sponsored foreign nationals to file the third and final step of the green card process, the Application for Adjustment of Status to permanent residence (Form I-485), before an immigrant visa number otherwise becomes available to them. Based on this key development, the foreign national employee (and his/her eligible dependents) will be eligible to apply for interim employment authorization (Form I-765) and travel documents (Form I-131) during the often lengthy wait for a green card.
Up until yesterday, under the previous (broken) regime, a foreign national was only eligible to file an application to adjust status (or an application for an immigrant visa abroad) when his or her “priority date” became “current”, as specified in the monthly Visa Bulletin issued by DOS. By way of background, a foreign national’s priority date is the date on which a labor certification (if required) or a Form I-140 immigrant worker petition was filed on his/her behalf. The priority date becomes is current if it falls before the cut-off date listed in the monthly Visa Bulletin.
Under the new, revised procedures, the Visa Bulletins going forward will now provide 2 different charts, which charts list two critical cut-off dates for each backlogged employment-based preference category and country. The first chart (which is the same chart that has always appeared in the Visa Bulletin), has not changed as it simply lists the cut-off date for actual immigrant visa availability. This chart is now referred to as the “Application Final Action Dates”, which chart provides dates when green cards / immigrant visas may finally be issued. The second chart is the new addition to the Visa Bulletin that provides a new cut-off date for eligibility to file an Application for Adjustment of Status or, alternatively, apply for an immigrant visa abroad. This chart is referred to as “Dates For Filing Applications”, which provides the earliest dates when applicants may be able to apply for adjustment of status, despite no immigrant visa number being available.
To illustrate the stark benefits of the revised procedures, according to the October 2015 Visa Bulletin, the Application Final Action Date for the Employment-Based Second Preference (EB-2) Category for Indian Nationals is May 1, 2005. This translates to a backlog of more than ten (10) years for Indian nationals filing advanced-level positions to become eligible to file the third and final step of the green card process. Simply stated, the employers of these Indian EB-2 candidates must have commenced the green card process (generally by filing a labor certification) more than 10 years ago for them now to be eligible to apply for the third and final step of the green card process in October 2015.
Under the new, revised procedures, Indian EB-2 candidates with a priority date of July 1, 2011 or earlier may now file an Application for Adjustment of Status, as set forth in the second chart of the October 2015 Visa Bulletin. To be clear, those who qualify under this second cut-off date will not be able to receive a green card until an immigrant visa number becomes available to them, as reflected in the first chart. However, by filing an Application for Adjustment of Status, these foreign nationals and their respective dependents will be able to file concurrent applications for interim work and travel benefits, as stated above.
This new, revised procedure is welcome news to many employer-sponsored foreign nationals, particularly those from India and China, who are most significantly affected by green card backlogs. Now that the new Visa Bulletin has been released, we expect the State Department and U.S. Citizenship and Immigration Services to answer the unresolved questions presented by this new filing opportunity, including how long it will remain available and how to submit applications.
This was a centerpiece of President Obama’s executive action on immigration which will certainly help to alleviate the hardships that employment-based immigrant visa backlogs can cause.
Tags: adjustment of status, Department of State, I-485, Immigration Reform
The H-1B visa is, by far, the most sought-after temporary work visa in the United States for foreign national workers. It requires sponsorship by a U.S. employer and is limited to specialty occupation positions which generally require the candidates to hold at least a bachelor’s degree (or the equivalent) in a relevant discipline.
Despite its demand, the H-1B visa category is not without its drawbacks. For one, new H-1B visas are subject to an annual quota of 85,000, with 20,000 of those set aside for advanced degree graduates with a U.S. Master’s degree or higher. (The H-1B quota applies only to petitions for new employment and not to beneficiaries of H-1B extensions and transfers from one U.S. employer to another. Nor does the quota apply to employees of qualified institutions of higher education and certain non-profit or government research organizations.)
For fiscal year (FY) 2016, a record-breaking 233,000 H-1B cap petitions were filed with USCIS, representing a 35% increase from the prior fiscal year. Based on such an overwhelming increase in filings, H-1B candidates were faced with a 1 out of 3 chance of a petition being selected in the H-1B lottery. In other words, approximately 2/3 of all petitions submitted were summarily rejected for lack of quota numbers.
So what is a U.S. employer to do when a foreign national is not selected in the H-1B lottery? While there are a limited number of options presented by the “alphabet soup” of temporary visa categories, there are some viable alternatives for obtaining valid work authorization for such foreign nationals. The following list includes some of those alternatives.
1. B-1 (in lieu of an H-1B): While the B-1 is not a traditional work visa, if applied for properly, this sub-classification is a viable alternative for multinational employers as it will allow foreign nationals to temporarily engage in professional-level employment in the U.S. for short-term periods (up to 6 months) provided the foreign national does not receive a salary or any other remuneration from the U.S. employer. Rather, the foreign national must be placed and remain on the payroll of a foreign entity;
2. O-1: This visa classification is generally associated with nationally or internationally acclaimed scientists, researchers, athletes or artists; however, this category can also be utilized for business personnel who can establish they have risen to the top of their respective fields by demonstrating he/she satisfies at least 3 out of 10 threshold criteria provided in the regulations. See 8 C.F.R. § 214.2(o)(3)(iii);
3. L-1: This visa classification is commonly used by multinational employers to transfer executive, managerial or “specialized knowledge” personnel to the U.S. from abroad. It requires a common ownership and control of the sending and receiving entities by way of a parent, subsidiary, affiliate or branch relationship. In addition, qualifying candidates must have been continuously employed for at least 1 year with the foreign affiliate within the preceding 3 years;
4. TN-1 (Canada) and TN-2 (Mexico): This visa classification is available only to citizens of Canada and Mexico who are coming into the U.S. to engage in professional-level activities as defined by NAFTA, which activities specifically require “at least a baccalaureate degree or appropriate alternate credentials demonstrating status as a professional.” The TN employment must fall within a NAFTA Schedule 2 profession. 8 C.F.R. § 214.6(b); 8 C.F.R. § 214.6(c);
5. H-3: This visa classification may be utilized by a U.S. business or individual seeking to bring foreign nationals into the U.S. for the purpose of engaging them in an established training program for up to 2 years. The U.S. employer must demonstrate that similar training programs are not available in the foreign national’s home country. Although the training program may consist of a combination of classroom and on-the-job training, any productive employment must be “incidental” to the training program. 8 C.F.R. § 214.2(h)(7)(ii)(A);
6. E-1: This is a visa classification available to applicants from one of the enumerated countries with which the U.S. maintains a treaty of trade. Applicants must be sponsored by a U.S. employer which is owned at least 50% by national(s) of the foreign national’s treaty country. (A publicly traded company is generally considered to have the nationality of the country in which its stock is listed and traded on a public stock exchange.) The U.S. employer must demonstrate substantial trade in services or technology between the home country and the U.S., while the employee must be entering the U.S. to perform supervisory or executive duties or have skills which are “essential to the operation of the enterprise.” 8 C.F.R. § 214.2(e)(3);
7. E-2 (commonly known as an Investor Visa): Like the E-1, this is a visa classification available to applicants from one of the enumerated countries with which the U.S. maintains a treaty of commerce. Applicants must be entering the U.S. to develop and direct the operations of an enterprise in which the individual has substantially invested (or is in the process of investing) monies to create a business in the U.S. that is not marginal and has a reasonable growth trajectory.
As set forth above, the H-1B visa category, in its current form, is not without its issues. Until such time that Congress realizes that the arbitrary quota on H-1B visas serves no useful purpose, U.S. employers, including in-house counsel and human resources departments, should consider more creative, perhaps less conventional alternatives, to retain and attract a more diverse, intelligent and energetic workforce.
Tags: alternative to H-1B visa, B-1 (in lieu of an H-1B), E-1, E-2 Investor Visas, fiscal year (FY) 2016, H-1B, H-1B alternative, H-1B cap, H-1B Visa News, H-3, L-1 Visas, L-1A executive, L-1A manager, L-1B specialized knowledge, O-1 Visas, TN-1, TN-2
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