OPT STEM EXTENSIONS EXTENDED

The USCIS now has until May 10, 2016 to finish its review of the more than 50,000 public comments submitted in response to the new STEM OPT Extension regulations and to issue a new STEM Program.  Until May 10, 2016, the old OPT STEM extension program remains in effect. 

In August 2015 the US District Court for Washington, DC ruled that the USCIS STEM OPT Extension program was invalid because the USCIS had not followed the proper procedure when STEM Extension program was created.  Before creating a new program, the law requires that the USCIS must first give the public time to comment on the program proposal.  The USCIS did not allow the proper public comment period when creating the STEM Extension program.

In August 2015 the federal judge ruled to abolish the STEM Extension program, but the judge also found that abolishing the program immediately would cause a hardship to F-1 students currently on OPT.  The judge allowed the USCIS six months until February 2016 to re-create the program using the proper procedure.  The six month window was set to expire on February 12, 2016.

The USCIS re-issued the STEM Extension program last fall and received over 50,000 comments from the public.  In December 2015 the USCIS requested additional time to review the public comments.  The judge has now granted the USCIS an additional three months to complete its review of the public comments.  The USCIS has until May 10, 2016 to complete its review of the public comments and enact the new STEM Extension program.

H-1B TELECONFERENCE FEB 4, 2016

MU VISA ADVISOR:   H-1B TELECONFERENCE FEB 4, 2016

In anticipation of the H-1B cap filing date of April 1, 2016, MU Law will be holding a free teleconference for our clients and friends on February 4, 2016 at 2PM / 11AM PT.  Interested clients and friends should email MU’s Annalisa Smith, who will register you for the teleconference.

Last year the H-1B cap was reached in the first week.  We expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2016.

H-1B Teleconference Agenda

• H-1B Cap Basics and Projections

• H-1B Dependency

• H-1B issues for Staffing Companies and Third Party Placements: What is Third- Party Placement v. In-House work?

• Hot issues:  
• CPT / OPT maintenance
• NIV maintenance
• Cap-gap for F-1s
• H4 EAD rule
• STEM OPT Lawsuit
• Increased filing fees for 50/50 employers

• Top 10 things H-1B employers can do to stay compliant

• Legislative Update
• DACA/DAPA to the Supreme Court
• I-140 EAD
• Presidential Election: What we can expect from President Trump

• Q&A

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue. 

USCIS TO ALLOW DUAL INTENT, 240-DAY WORK AUTHORIZATION FOR H-1B1, CW-1, E-3

Starting February 16, 2016, the USCIS will make life much easier for H-1B1, CW-1 and E-3 visa status holders thanks to a new regulation that has just been posted to the Federal Register.  The original proposed regulation was published in April 2015.

The new regulation will grant extended work authorization to these visa status holders who timely file their visa status extension petitions.  These changes will bring these three categories into harmony with similar employment-based visa status programs, such as the H-1B and the L-1.

Allowing dual intent will remove an unnecessary legal headache when these visa status holders apply for permanent residency.  Currently, H-1B1, CW-1 and E-3 visa status holders must be extremely careful when preparing their green card petitions or risk running afoul of the immigrant intent rule.  Strictly speaking, these visa status holders cannot intend to file for US Permanent Residency.

Granting extended work authorization is also a welcome for these visa status holders.  Under the current interpretation these workers were forced to stop working unless their visa status extension was approved prior to the expiration of the initial visa status.  When the new rule is effective, those in H-1B1, CW-1, and E-3 visa status will be allowed to work during the pendency of their visa status extension petition, even if the extension petition is not approved before the expiration of the prior status.  This work authorization is for 240 days, per 8 CFR 274a.12(b)(20).

These visa categories were all established in the mid-2000s.  The H-1B1 provides an H-1B-like visa status for Singaporean and Chilean nationals.  The E-3 functions similarly for Australian nationals.  These visas were approved by Congress when trade deals were struck with these three countries.  The advantage of these visas is that they are not subject to the H-1B cap.  There are quotas for these categories, although none of the quotas have veer been reached.

FEBRUARY 2016 VISA BULLETIN: PREDICTIONS AND ANALYSIS

The Department of State has just issued the February 2016 Visa Bulletin.  This is the fifth Visa Bulletin of Fiscal Year 2016. 

February 2016 Visa Bulletin

Final Action Dates

Applications with these dates may be approved for their Green Card (Permanent Residency card).

Employment- Based	All Chargeability Areas Except Those Listed	CHINA - mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01MAR12	01AUG08	C	C
3rd	01OCT15	01OCT12	15JUN04	01OCT15	08JAN08

MU Law Analysis

All: These dates continue to be very favorable.  We expect that All Other dates will continue to be positive for the foreseeable future.

China: EB-2 progressed by one month. EB-3 has progressed almost one year in just the last few months.  This is great news for this category.

India: EB-2 jumped again. Four months ago it was 01MAY05. This represents a three-plus year movement in just four months.  This trend may continue. EB-3 moved four weeks.  Our sense is that EB3 will only move by weeks in the forthcoming months.

Mexico: Mirrors All Other in all aspects.

Philippines: EB-3 moved ahead two more months. MU Law believes that Philippines EB-3 will continue to steadily move forward in the coming months.  We expect it to get into 2009 in the by this spring or early summer.

Dates of Filing

Applications with these priority dates should see their Consular Process application progress.  The USCIS may allow filing of the I-485 Adjustment of Status, provided that the USCIS issues its monthly authorization. 

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C
2nd	C	01JAN13	01JUL09	C	C
3rd	01JAN16	01OCT13	01JUL05	01JAN16	01JAN10

MU Law Analysis

The Dates of Filing chart did not materially change from October or November 2015. This is not a surprise. The USCIS and Department of State have been sued in response to the September 2015 revised Visa Bulletin.

Our analysis is the same as described in our October 10, 2015 blog post.

8TH CIRCUIT GREATLY CURTAILS DOL INVESTIGATORY AUTHORITY IN LCA INVESTIGATIONS

The Greater Missouri Medical Pro-Care Providers H-1B case is the most noteworthy H-1B since the 2000 decision, Defesnor v. Meissner.  The latest decision in Greater Missouri greatly curtails the DOL’s investigative powers and significantly reduces liability concerns for H-1B employers.

                                                                 

The DOL has traditionally used any H-1B employees’ complaint to investigate a company’s entire H-1B program.  I have personally defended H-1B employers in about a dozen matters where the DOL has used this technique to extract significant fines from H-1B employers for technical alleged violations.  In most of these instances, the H-1B employer has paid off the DOL instead of spending considerable fees and time defending itself.  With this latest decision, this DOL method should stop.

The 8^th Circuit held that the underlying Congressional statue, “expressly ties the [DOL’s} initial investigative authority to the complaint and those specific allegations.”  (Page 10 of the decision, linked above).  The DOL must have “reasonable cause” to extend the scope of an investigation. 

It is illustrative to understand what happened in Greater Missouri.  The H-1B employer, GMM, hired several Physical and Occupational Therapists.  In June 2006, one of the H-1B Therapists filed a Complaint that eventually found its way to the DOL.  In response to this Complaint the DOL open a company-wide investigation and requested documentation on every H-1B employee on GMM’s roster.  Based on this documentation, the DOL ordered GMM to pay $382,890 in back wages to H-1B employees.

The case meandered through the administrative courts for years.  The case found its way to the Administrative Review Board, which issued a decision in January 2014.  In that decision, the ARB confirmed that that the DOL’s investigative authority could include all H-1B employees, however “if the H-1B violation underlying the claim occurred more than 12 months before a complaint was filed, any remedies for that violation are barred.”  This finding reduced the back wage fine to $106,786.   

A dissent by one of the three ARB judges opined that the DOL’s investigative authority was limited to just the Complainant’s allegations.  This dissent was referenced by the 8^th Circuit in the most recent decision.

If this decision holds firm, the DOL’s investigative powers will be constrained to the matter at hand.