Rahul Reddy, Attorney at Law, Reddy & Neumann PC

Immigration and Nationality Act (INA) defines a nonimmigrant alien and authorizes US employers to temporarily employ foreign workers in specialty occupation by sponsoring such workers for H-1B nonimmigrant visas. Employers may sponsor multiple H-1B nonimmigrant visas subject to satisfying eligibility requirements of the specialty occupation position, as well as demonstrating the foreign worker’s qualification and the inability to recruit US workers. If a US employer has H-1B workers that make up 15% or more of their total employees, then the employer is considered an H-1B dependent employer.

H-1B dependent employers are under an obligation not to displace US workers from jobs and that such employers must recruit US workers before hiring H-1B nonimmigrants. However, these obligations do not apply to Labor Conditional Applications (LCA) filed by an employer if the LCA is used only for the employment of “exempt” H-1B nonimmigrants. The law currently states that an “exempt H-1B nonimmigrant” is a nonimmigrant H-1B specialty occupation worker who meets either of the two following criteria:

  1. Receiving wages (including bonuses and similar compensation) at an annual salary of at least $60,000; or
  2. Has attained a master’s or higher degree (or its equivalent) in a specialty related to the intended employment.

The “Protect and Grow American Jobs Act”, a bipartisan bill which was re-introduced by Republican Congressman Darrell Issa earlier this week, seeks to amend the INA and revise the definition of “exempt H-1B nonimmigrant” by increasing the annual salary threshold requirement from $60,000 to $100,000 and eliminating the master’s or higher degree requirement. Theoretically, by raising the minimum salary and removing the master’s quota/cap, Congressmen Darrell Issa (R-Calif.) and Scott Peters (D-Calif.) seek to increase H-1B dependent employers’ obligations regarding the displacement of US workers and recruitment of US workers for all LCAs that are filed. This would increase the number of LCAs filed to be counted against the H-1B dependent employer and lower the number of exempted H-1B nonimmigrants able to work for the employer, unless the H-1B dependent employer was able to pay a minimum of $100,000 salary. Essentially, the proposed legislation attempts to minimize the number of exemptions given to H-1B dependent employers, resulting in less H-1B nonimmigrant visas being sponsored and more positions available to US workers.

However, practically speaking, the proposed legislation would not make, especially for the IT industry. Many IT companies already adhere to the provision of trying to recruit the US workers first and only if they cannot find them, then they will try to file for an H-1B. IT companies incur large expenses in filing fees, in some cases amounting to more than $7,000, plus the hassle of legal fees paid to lawyers and paperwork. Most H-1B hiring companies try to avoid hiring H-1B workers, unless they have to. Therefore, an attempt to revise the INA definition of “exempt H-1B nonimmigrant” will likely not be detrimental for any H-1B hiring companies.

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.

 


USCIS today informed the stakeholders that they will accept old forms until February 21st 2017 with exception of NH-400. However they are encouraging to file applications with new forms.

 

Reddy & Neumann, P.C. is an immigration law firm in Houston, Texas. For over 15 years, our firm has successfully represented corporate clients across the United States in their efforts to bring foreign workers and business professionals to the United States. Reddy & Neumann, P.C. is highly experienced in working with employment-based visas, adjustment of status, green cards, and PERM labor certification. From filing, through approval, and on to appeal, we do everything possible to ensure that your company can bring the best and brightest in the world to the United States.

 


Recently, the Department of Education announced that the Accrediting Council for Independent Colleges and Schools, or ACICS, would lose its status as a recognized accreditation agency. For the purposes of international students participating in Student and Exchange Visitor Programs (“SEVP”), accreditation is relevant to any 24-month optional practical training extensions in the fields of science, technology, engineering, and mathematics (“24-month OPT STEM extension”).

Does this affect me if I am participating in a 12-month OPT program?

No, the changes in the accreditation should not impact your ability to participate in a normal period of OPT. However, it does impact students at schools without proper accreditation who are participating in a 24-month OPT STEM extension.

Does this affect me if I am already on an approved 17-month or 24-month OPT STEM extension?

ICE has not given clear indication on how it intends to treat participants in the legacy 17-month OPT STEM extension. Since the 17-month OPT STEM extensions are controlled by the old rules, which are less stringent, you will probably not need to take any further action if you are participating in a 17-month OPT STEM extension and your participating school lost accreditation with ACICS.

With regard to students with already approved participation in the new 24-month OPT STEM extension program, ICE specifically mentions that the university must have been accredited by a Department of Education-approved accrediting agency at the time the STEM OPT application was filed. This indicates that as long as your application was received before December 12th, then this should not pose a problem.

What if I am planning to apply for my 24-month OPT STEM extension?

Check with your school’s international student office to see if they have plans to replace their ACICS accreditation, as well as continue participation in SEVP. If your university is not accredited and you wish to apply for a STEM extension, then you will need to transfer to a different school that is accredited.

Please be aware that if you file a new STEM extension and base it off of a previous degree, then both the school recommending STEM OPT as well as the school where your STEM degree was earned must be accredited by an agency recognized by the Department of Education. In other words, if you transfer to a new school with proper accreditation, but attempt to base your STEM extension on a degree earned at a school without proper accreditation, then will not receive an approval.

 

What are some of the schools affected by this change?

Several universities are only accredited by the ACICS, meaning that such universities may be unable to participate in 24-month OPT STEM extensions.

American College of Commerce and Technology
American National University
Coleman University
Colorado Heights University
*Herguan University
Lincoln University
Northwestern Polytechnic University
Schiller International University
Silicon Valley University
Stratford University
University of North America
Virginia International University

*Herguan University’s SEVP has been revoked entirely.

Rahul Reddy, Attorney at law

The final regulations for the long-awaited “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program, Improvements Affecting High-Skilled Nonimmigrant Workers” have been released, and will be published in the Federal Register November 18, 2016. The rules will go into effect 60 days afterwards.

These regulations have sometimes been known as the “I-140 EAD rule,” due to its provision of work authorization for certain beneficiaries of approved I-140 immigrant petitions. However, as discussed in our office’s previous analysis of the proposed I-140 EAD (see http://rnlawgroup.com/news/509-i-140-ead-rule-big-bluff-by-the-administration), the EAD will only be available to I-140 beneficiaries in limited, “compelling” circumstances, and for a limited duration, making it of little practical use to the large majority of I-140 beneficiaries waiting to file for adjustment of status.

Other portions of the rule, however, do impact large numbers of workers in various stages of the non-immigrant and immigrant visa process. Some of these provisions include:

60-day grace period for H-1B workers in event of employment termination

  • Under the current rule, H-1B workers are considered in status only as long as they are working for their approved H-1B petitioner. Termination of employment would render the H-1B beneficiary automatically out of status, leaving the applicant with limited time and options to seek new employment.

  • Under the new rule, H-1B workers will be accorded a grace period of up to 60 days in the event of employment termination, only during the petition’s existing validity period. This means that if the H-1B petitioner terminates a worker before the end-date on the I-797 Approval Notice, the worker has 60 days from that date to file a change of status, extension of status, or change of employer petition, without being considered out of status. 

  • Please note the grace period does not apply if the validity date of the H-1B petition has already passed. 

Extending H-1B status beyond the 6th year when an I-140 approval has been withdrawn  

  • Under the current rules, an H-1B worker’s ability to apply for 3-year extensions beyond the 6th year depended on an approved I-140 petition. If the I-140 petitioner chose to withdraw the approval, the H-1B worker’s would not be eligible to apply for an extension, unless a new I-140 was approved in time.

  • Under the new rule, if the I-140 petition has been approved for at least 180 days, its subsequent withdrawal by the petitioner will not affect the beneficiary’s ability to apply for H-1B extensions beyond the 6-year limit.

  • The priority date from the withdrawn I-140 petition can also be ported to a new I-140 petition.

 Automatic extension of EADs up to 180 days 

  • This applies to applicants with a pending I-485 Adjustment of Status application. Under the current rules, applying for an EAD renewal could result in a gap in employment authorization, as the new EAD was required to continue working, and I-765 processing times have routinely extended beyond the proscribed 90-day timeframe.

  • Under the new rule, applicants applying for an EAD renewal based on a pending I-485 application will receive an automatic 180-day extension of work authorization beyond the previous expiration date, if the renewal application has been pending more than 90 days. In addition, the window to file your I-765 application has been extended from 120 days to 180 days prior to the current EAD’s expiration date, also in an effort to reduce work authorization gaps due to USCIS’s increased processing times.

  •  Please note that the automatic 180-days EAD extension does not appear to apply to H-4 EAD or F-1 OPT applicants.

I-485 Supplement J

  • USCIS will be adding a form, called Supplement J, to its I-485 adjustment of status application. This form will serve the purpose of providing the government with information and details of the existing job offer for employment-based I-485 applicants.

  • Under AC21, an adjustment of status applicant may change employers after the I-485 application has been pending for at least 180 days, as long as the new position is in the “same or similar” occupational classification as the position listed in the I-140 petition.

  • Notifying the government of the change in employer and providing proof of the similarity in positions used to occur through a letter filed with the service center – the new Supplement J form will provide a uniform means to file this information with the government.

  • Supplement J will still need to be filed if there is no change in employer – the I-140 petitioner would sign the form as confirmation of the ongoing job offer.

I-140 EAD for Compelling Circumstances

  • As discussed earlier, the I-140 EAD, in practice, will only be available to a limited number of I-140 beneficiaries. The applicant must establish “compelling circumstances” warranting issuance of the EAD card, which may include: serious illness or disability of main applicant or dependent, geographic relocation causes undue burden to the applicant, employer retaliation, the beneficiary’s inability to maintain the nonimmigrant status, or significant disruption of the employer.

  • The EAD is meant to be a “stopgap,” and is only issued for one year, with an extension only available with proof of the continuing compelling circumstances, or if the priority date will become current within one year.

  • The EAD does not confer nonimmigrant status and would not allow applying directly for adjustment of status if the priority date becomes current.

Please continue checking Reddy & Neumann’s news section for updates concerning the provisions of the final rule, as they become available.