ALTERNATIVE VISA OPTIONS TO THE H-1B PROGRAM, PART ONE: F-1

U.S. Citizenship and Immigration Services (USCIS) recently announced it received approximately 233,000 H-1B petitions for the 2016 H-1B CAP filing. This figure includes both regular H-1B cap-subject petitions and H-1B petitions filed for the advanced degree exemption. Not surprisingly, this is the largest number of H-1B cap-subject petitions ever received. From a numbers standpoint, we can expect about 36% of the H-1Bs will be accepted and 64% will be returned.

Since more than half of the petitions are returned, U.S. employers must seek alternative visa options to the H-1B program. In this three–part series blog post, we will discuss in detail the available alternatives. Each of these visas has specific legal requirements that the employer and employee must meet to qualify. The options discussed should be considered on a case by case basis, to determine the best fit for the employer and employee.

In the first blog of this three-part series, we discuss the options available to F-1 student visa holders including continued employment under STEM OPT or returning to pursue a higher degree. 

Optional Practical Training (OPT) including STEM OPT

Optional Practical Training (OPT) is temporary employment that is directly related to an F-1 student’s major area of study. Under the current rules, an F-1 student can be authorized to receive up to a total of 12 months of practical training either before (pre-) and/or after (post-) completion of studies. Certain science, technology, engineering and mathematics (STEM) degree holders may be eligible for an additional one time 17 month extension of OPT time. To be eligible for the STEM OPT, the attained degree must be one of the STEM Designated Degree Programs (see STEM Designated Degree Programs) to determine if the degree is eligible and the employer must be registered with the government's "E-Verify" Program.

      

Higher Degree Level

An F-1 student can enroll in a new, higher degree-seeking program at a SEVIS certified university. Note that students may be authorized up to a total of 12 months of full-time practical training at each educational level (e.g., undergraduate, graduate and post-graduate). The student can also be authorized for Curricular Practical Training (CPT) at each new degree level. The CPT option should be exercised with caution and discussed by the student with the university’s designated school official. In a more recent trend, MU noticed the USCIS narrowly focus on F-1 students and whether the student maintained status during period(s) of authorized employment such as CPT.

In the second blog of this three-part series, we will discuss the H-1B CAP exemption options including quota requirements, who qualifies and how some states have designed innovate ideas to take advantage of this option. 

H-1B AMENDMENT NEEDED FOR ALL GEOGRAPHICAL CHANGES, EVEN IF BEFORE APRIL 9, 2015

The USCIS has just released Guidance on its webpage further clarifying the Simeio Solutions case from April 2015. 

The most impactful part of the Guidance is that the USCIS is now requiring all H-1B employers to file an H-1B amendment for employees who have moved their geographical location, even if that move happened before April 9, 2015, the date of the Simeio Solutions decision. 

Simeio Solutions holds that a new H-1B petition is required whenever an H-1B worker changes his geographical location, if that geographical change requires a new Labor Condition Application (LCA).  Typically geographical changes outside of a metropolitan statistical area require a new LCA. 

The USCIS previously implied that only relocations happening after the issuance of the April 0, 2015 Simeio Solutions decision.  This new interpretation reaches back in time, requiring all prior geographical moves to file amended H-1Bs.

Accordingly all MU Law clients are encouraged to fully review their H-1B roster and confirm that the H-1B employee’s current worksite matches the worksite listed on the employee’s I-129 petition.  If the H-1B employee’s current worksite does not match the worksite listed on the employee’s I-129 petition, then we should prepare and file an amended H-1B petition. 

Thankfully, the Guidance is giving all H-1B employers a 90 day grace period, until August 19, 2015, to comply with this latest Guidance interpretation.

The new USCIS Guidance also confirms existing safe harbors within the law.  An amended H-1B does not have to be filed when:

-The geographical move is within the same metropolitan statistical area.

-Under certain circumstances, you may place an H-1B employee at a new job location for up to 30 days, and in some cases 60 days (where the employee is still based at the original location), without obtaining a new LCA.

-The job is “peripatetic in nature,” such as situations where their primary job is at one location but they occasionally travel for short periods to other locations “on a casual, short-term basis, which can be recurring but not excessive.  

USCIS TO SUSPEND H-1 EXT PREMIUM

USCIS will temporarily suspend premium processing for all H-1B Extension of Stay petitions from May 26, 2015 until July 27, 2015.  USCIS will continue to premium process all other H-1B petitions during this period, such as petitions subject to the H-1B cap.  USCIS will refund the premium processing fee if:

-A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and

-USCIS did not act on the case within the 15-calendar-day period.

This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations.

DOS EXPECTS PHILS EB-3 RETROGRESSED UNTIL OCT 2015

In AILA’s latest “Check-in with Charlie” Department of State’s Charlie Oppenheim explains that the Philippine retrogression is being caused by “heavy demand”.  He says that other categories such as Worldwide EB-2 and Other Worker EB-3 are also in great demand.

Because of this demand he does not expect that the Philippine EB-3 date will move forward at any time in Fiscal Year 2015 (Oct 1, 2014 – Sept 30, 2015).  The date may even cut-off this summer.  Charlie's phrase is "further corrective action".

There remains optimism that there will be a progression of Philippine EB-3 dates with FY 2016, which begins October 1, 2015.  From 2008-2014, barely any Philippine EB-3 visa applications were filed, mainly because of the recessed US economy.  It therefore stands to reason that any jump in dates that reaches 2008, will progress forward to 2014. 

Accordingly, MU Law expects that the Philippine EB-3 number will return to 2014 before the end of this year.  However if Philippine EB-3 demand continues the Philippine EB-3 number may eventually retrogress negatively, although it is too early to specifically estimate Visa Bulletin dates in calendar year 2016.

One note of interest from a recent DC Circuit case, Xie v. Kerry.  The DC Circuit told the DOS to clarify how it applies the Visa Bulletin.  The outcome of this remanded case could conceivably alter the way that the Visa Bulletin is compiled.

HOW TO APPLY FOR CAP GAP

Students with work authorization under OPT (optional practical training) whose H-1B has been chosen under the cap are eligible for cap-gap work authorization.  Many students graduating from US colleges and universities with degrees in physical therapy, occupational therapy, speech language pathology, medical technology, and other allied health professions are eligible for OPT and work on OPT after graduation.   

When the student is approved for OPT, the student receives an employment authorization document (EAD).  This is a plastic card, much like a driver’s license, which shows the student’s photo and biographic information.  An OPT EAD Card is pictured here:

The validity dates of the OPT work authorization are listed near the bottom of the card.  In the case above, the student’s OPT work authorization expires on July 14.  Assuming this student’s H-1B petition has been selected under the H-1B cap, the student is eligible to apply for cap gap work authorization to extend his OPT work authorization from July 15 to October 1 when the H-1B begins.

The cap gap extension is not automatic.  The student should present the H-1B receipt notice showing his/her H-1B has been selected to the international student office at his/her school.  The school will issue a new I-20 to the student showing the OPT has been extended to October 1.  Employers should use this new I-20 to re-verify the student’s I-9 work authorization through October 1. 

JUNE 2015 VISA BULLETIN

The Department of State has just released the June 2015 Visa Bulletin. This is the ninth Visa Bulletin of the 2015 Fiscal Year.  

The retrogression of the Philippines EB-3 continues.  To insure that no Philippine EB-3 visas are issued, the Department of State has again moved the Philippine EB-3 back, this time to January 1, 2005.

This cannot be good news, although MU still believes that the dates will progress in the second half in 2015.  Please read our blog post from April 14, 2015 for deeper analysis on the state of the Philippine EB-3.  This  month's forthcoming Check-in with Charlie will also likely provide some insight. 

The news was much better for the other categories.  India EB-2 leaped ahead to October 1, 2008, which is a progression of almost six months.

India EB-3 only moved up one week to January 22, 2004.  All Other EB-3 moved into February 15, 2015, which is also the date for Mexico’s EB-3.

China EB-2 improved one full year to June 1, 2013 and EB-3 is now at September 1, 2011.  Both of these dates continue to progress positively.

Employment- Based	All Other	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JUN13	1OCT08	C	C
3rd	15FEB15	01SEPT11	22JAN04	15FEB15	01JAN07

REMINDER: H-4 EADs CAN BE FILED 5/26

Earlier this year USCIS announced that the long-awaited H-4 EAD rule will go into effect on May 26, 2015. The full regulation was also published.  We are still awaiting a FAQ from USCIS, which was promised in the spring.  An MU Law FAQ is at the end of this blog post.

Under the new H-4 EAD rule, the H-4 spouse may obtain an EAD card in two instances.   (1) Either the principal H-1B worker has to have had a PERM Application pending for at least one year or (2) the principal H-1B worker has to have an approved I-140. 

H-4 spouses who meet one of the two conditions may file an I-765, Application for Employment Authorization.  Ordinarily, I-765 Applications are approved in 90-120 days.  Accordingly, H-4 spouses who qualify should be able to begin working in September 2015.

Musillo Unkenholt H-4 FAQ

Can I file before May 26, 2015?

No.  The USCIS will not accept EAD applications until May 26, 2015.

How long will it take the USCIS to process the EAD Application?

Traditionally EAD Applications take 90-120 days until approval.

Can I work upon the filing of the EAD Application?

No.  The EAD must be approved?

Who qualifies for the new H-4 EAD card?

Certain H-4 spouses may file for the new H-4 EAD.  Children who hold H-4 status are ineligible for the EAD.

Which H-4 spouses may file for an EAD?

In order to decide if you qualify for the H-4, we must look to the underlying H-1B status holder.  The USCIS elected to apply the rule first set forth in Section 106 of AC21.  The H-1B worker must either:

A.  Hold an approved I-140, Petition for Alien Worker.  The approved I-140 does not need to be from his present employer; or

B.  Have a priority date that is at least one year old.  A priority date can be established by the filing of a PERM Application or a Form I-140.

May an H-4 spouse file for an EAD if the H-4 spouse holds (A) an approved I-140 or (B) one year has passed since the filing of a PERM or I-140?

No.  The USCIS looks to the H-1B worker to meet A or B, above.  It is irrelevant if the H-4 meets A or B.

Are there any limitations on the work that I can perform on an H-4 EAD?  For instance, is there a prevailing wage?  Am I limited only to certain types of jobs?

No.  There are no such limitations.  You can work for any employer, at any rate (above minimum wage), and in any occupation.

What should I do if I want to file an H-4 EAD?

EAD Applications do not require an attorney’s assistance, although many people find it helpful to have an attorney assist in the process.  If you would like MU Law to help, please contact us.

USCIS HAS COMPLETED DATA ENTRY FOR THE H-1B LOTTERY

USCIS announced May 4, 2015, that it has completed data entry of all fiscal year 2016 H-1B cap-subject petitions selected in their computer-generated random process.   

With this announcement, USCIS acknowledges that H-1B receipt notices have been mailed.  Petitioners have probably not received all possible H-1B receipt notices because these Receipt notices are snail-mailed.

USCIS should shortly begin returning all H-1B cap-subject petitions that were not selected.  Due to the high volume of filings, the time frame for returning these petitions is uncertain.  Based on past years, MU Law believes that it may take longer than one month until all petitions are returned.

USCIS will issue an announcement once all the petitions have been returned.