USCIS Reaches H-1B Cap for FY 2017 (Which Starts October 1, 2016)

US Citizenship & Immigration Services (USCIS) announced today that it has reached the congressionally mandated H-1B cap numbers for fiscal year (FY) 2017, which starts October 1, 2016. Cap cases filed beginning April 1 this year are included in the FY 2017 count. USCIS states that they have also received more than the limit of 20,000 H-1B petitions filed under the US advanced degree (master’s) exemption. As in previous years, USCIS will use a random computer-generated process (i.e., the H-1B “lottery”) to select the 65,000 petitions for the general category and 20,000 for the advanced degree exemption.

After completing intake for all filings received during the filing period, which ran from April 1 through April 7, USCIS will first randomly select petitions for the advanced degree exemption. All unselected advanced degree petitions will become part of the lottery for the 65,000 general cap lottery. The date of the lottery is yet to be determined, and USCIS will reject and return filing fees for all unselected cap-subject petitions that are not duplicate filings.  

USCIS will continue to accept and process non-cap subject H-1B petitions, including extensions and petitions that have been counted in previous cap year numbers. Users can sign up for H-1B cap season email updates, if they wish, and we will also continue to provide updates as we receive them.

UPDATE APRIL 13, 2016: USCIS announced that they received over 236,000 H-1B cap-subject petitions during the filing period. On April 9, USCIS used the computer-generated random selection process (aka the "lottery") to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will now reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing. USCIS will begin premium processing for those H-1B cap cases that requested it no later than May 16, 2016.

New York Times: “U.S. to Further Scour Social Media Use of Visa and Asylum Seekers”

The Department of Homeland Security (DHS) is building tools to examine social media accounts of visa applicants as well as those seeking asylum or refugee status in the US for possible terrorism ties. At a congressional hearing last month, Francis X. Taylor, Under Secretary for Intelligence and Analysis, the top counterterrorism official at DHS, said after the mass shooting in San Bernardino “we saw that our efforts are not as robust as they need to be,” and therefore would start to examine posts on Twitter, Facebook, and other social media sites.

This DHS announcement comes after terrorist groups, most prominently the Islamic State, also known as ISIS or ISIL, have been increasingly successful in using social media sites to spread propaganda, encourage independent terrorist attacks, and as a recruitment tool. Previous to DHS’s announcement, Senator John McCain introduced a bill that would require the DHS to screen social media sites for refugees and those visiting or immigrating to the US, and Representative Vern Buchanan has additionally introduced a bill mirroring McCain's that requires the DHS to examine all public records, including “Facebook and other forms of social media,” as part of the routine security background check.

“This legislation adds an important and necessary layer of screening that will go a long way in properly vetting the online activities of those wishing to enter the United States,” Representative Michael McCaul, chairman of the House Homeland Security Committee, told the New York Times. “A simple check of social media accounts of foreign travelers and visa applicants will help ensure that those who have participated in, pledged allegiance to or communicated with terrorist organizations cannot enter the United States.” While Congress has yet to act on the proposed legislation, in December, twenty-two Democratic lawmakers urged DHS to examine social media accounts for those seeking US visas.

Melanie Nezer, Vice President for Policy & Advocacy at HIAS, an agency that assists in refugee resettlement, commented to the New York Times about DHS’s social media plans: “We haven’t seen the policy, but it is a concern considering the already lengthy and opaque process that refugees have to go through. It could keep out people who are not a threat.” The American Civil Liberties Union of Maine agreed, telling WMTW News, an ABC affiliate: “We already have a rigorous and multi-layered security screening program in place for refugee resettlement that works. This proposal will only serve to further stigmatize immigrants and divide our country."

DHS’s new plan to review social media accounts comes after they abandoned a similar proposal in 2011. Currently, US Citizenship and Immigration Services (USCIS), an agency of DHS, examines social media accounts as part of the screening process for certain Syrian refugees, but only when there is a "hit" in an intelligence database for the applicant or if there is a security concern stemming from the interview with immigration officials. DHS says they are now hoping to automate the social media review, as a huge amount of messages and other data will need to be processed, as well as make additional hires to conduct the necessary social media security checks.

While data mining experts such as John Elder, who has worked with the Internal Revenue Service and the Postal Service on fraud detection, believe that analyzing social media accounts of millions of people who enter the US each year is feasible, other stress that conducting a thorough and accurate review would be very difficult. David Heyman, a former Assistant Secretary of Policy for DHS, told the New York Times: “You have to be careful how you design the proposal to screen people,” he said. “Artificial intelligence and algorithms have a poor ability to discern sarcasm or parody.”

DHS Enhances Opportunities for H-1B1, E-3, CW-1 Nonimmigrants, and Certain EB-1 Immigrants

The Department of Homeland Security (DHS) is revising its regulations affecting highly skilled workers in specialty occupations from Chile and Singapore (H-1B1), Australia (E-3), nonimmigrant workers in the Commonwealth of the Northern Mariana Islands (CNMI)-Only Transitional Worker (CW-1) classification, as well as immigrants in the employment-based first preference (EB-1) category for outstanding professors and researchers. Effective February 16, 2016, the amendments will benefit these H-1B1, E-3, and CW-1 nonimmigrant workers as well as EB-1 professors and researchers by “removing unnecessary hurdles that place such workers at a disadvantage when compared to similarly situated workers in other visa classifications.”

Specifically, the amended regulations will:

• Include H-1B1 and principal E-3 classifications in the list of classes of foreign nationals authorized for employment incident to status with a specific employer (as is the case with L-1, O-1, and H-1B classifications, for example), and clarify that H-1B1 and principal E-3 nonimmigrants are permitted to work without having to separately apply to DHS for employment authorization, codifying the standard practice;
• Authorize H-1B1, principal E-3 nonimmigrants, and CW-1 nonimmigrants for continued employment for up to 240 days with the same employer if the employer has timely filed for an extension of stay with US Citizenship & Immigration Services (USCIS), a move that will greatly benefit nonimmigrant workers in the US under those statuses;
• Update filing procedure regulations for extensions of stay and change of status requests to include the principal E-3 and H-1B1 nonimmigrant classifications to harmonize with current published UCSIS instructions; and
• Expand the current list of acceptable initial evidence for EB-1 outstanding professors and researchers to allow petitioners to submit “comparable” evidence, such as important patents or prestigious peer-reviewed funding grants, to prove that the researcher or professor is recognized internationally as outstanding in their academic field.

With these changes, DHS intends to “harmonize the regulations governing these classifications” to address discrepancies, all with the end goal of ensuring productivity and efficiency for employers as well as providing benefits to foreign national employees, such as preventing lost wages. Additionally, DHS hopes that expanding the range of evidence that employers may provide for EB-1 outstanding professors and researchers may result in more effective and wide-ranging recruitment. The final rule change, which was not substantially revised since being submitted to the public for comment, does not impose any additional costs on employers, workers, or any governmental agencies. The majority of public comments supported the rule change, and the published rule reviews them in detail, for those curious.

In the end, DHS states: “Attracting and retaining highly skilled workers is critical to sustaining our Nation's global competitiveness. By attracting the best and brightest from around the world, the United States can harness their talents, skills, and ideas to help the U.S. economy grow.”

USCIS Proposes Rule to Improve Employment-Based Nonimmigrant and Immigrant Visa Programs

The Department of Homeland Security (DHS) and US Citizenship & Immigration Services (USCIS) are now seeking public comments on a proposed rule to “modernize and improve certain aspects of employment-based nonimmigrant and immigrant visa programs.” Coming out of President Obama’s 2014 executive actions, these changes could potentially affect a large number of skilled immigrant workers as well as many applying for an employment authorization document (EAD). Specifically, the new rule also proposes to “better enable US employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents (LPRs).”

The rule, published in the Federal Register as Retention of EB-1, EB-2 and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, proposes many key changes that could have a significant impact on the careers and lives of certain foreign nationals. Among the highlights, USCIS proposes to:   

• Discontinue the ninety-day adjudication time limit for the employment authorization document (EAD) application process and instead provide for automatic extensions of timely-filed I-765 applications assuming certain conditions are met;
• Allow a ten-day grace period now available to H-1B workers at the beginning and end of the authorized stay to other non-immigrant categories including E-1, E-2, E-3, L-1, and TN classifications;
• Establish a “one-time” grace period (no working allowed) for up to sixty days for certain highly-skilled nonimmigrant workers under E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN status whenever their employment ends to pursue new employment;   
• Allow US employers to employ and retain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions (i.e., I-140 petitions) by allowing these workers to accept promotions, make position changes with current employers, switch employers, and pursue other employment opportunities;
• Improve job portability for certain beneficiaries of approved I-140 petitions by limiting the grounds for automatic revocation of petition approval; 
• Explain when applicants may retain their priority date to use when applying for adjustment of status (AOS) to lawful permanent residence, including when USCIS has revoked the I-140 approval because of the employer's business termination or I-140 withdrawal; 
• Allow certain highly-skilled individuals in the United States in E-3, H-1B, H-1B1, L-1, or O-1 status to apply for one year of unrestricted employment authorization if they are the beneficiaries of an approved I-140 petition, are unable to adjust status due to visa unavailability, and can provide evidence that compelling circumstances exists which justify issuing an employment authorization document.

These proposed changes wouldn’t take effect until after the comments period ends February 29, 2016, and until after the final rule is published. Individuals should follow the instructions in the notice to submit comments.

10 THINGS TO REMEMBER ABOUT THE I VISA

Our beautiful I visa chart (click to download as a PDF) summarizes key points about the I visa.

1. What is the I visa?

An I visa is a temporary visa which allows representatives of foreign press, radio, film, or other foreign information media to enter the US in connection with the news gathering process, as well as informational or educational documentary films or a television series. It is a temporary visa that should not be used as a basis for a permanent stay in the US.

2. Who can use the I visa?

Reporters, members of a media or documentary film crew, video tape editors, employees of independent production companies, freelance journalists working under contract, or anyone essential to the foreign information media function may be eligible for this visa. Both print and film activities are included in this category. The foreign media organization which the I visa applicant is representing should have a home office outside the US.

3. Who cannot use it?

If the applicant is working on commercial, entertainment, or advertising productions, they will not qualify for "I" classification visas. Stories that involve reenactments or staged events, scripted or dramatized events such as reality television and quiz shows, are not primarily informational and, as such, cannot be the basis of an I visa application.

4. What are the limitations?

The I visa is company-specific and project-specific, so the I visa holder may only work for the foreign media organization that sent them over to the US on the project and in the capacity that was outlined in the I visa application. It is only intended for temporary work in the US on behalf of the foreign media organization that sponsored the application and should not be used if the applicant intends to take up residency in the US. An I visa holder can travel in and out of the US as many times as needed to complete the relevant project, as long as the visa remains valid.  

5. How to apply for one?

I visas must be applied for directly at a US Embassy/Consulate in the applicant’s home country. The applicant must make a visa appointment at the US Embassy/Consulate, complete and submit the DS-160, and pay the applicable visa processing fee. The applicant must present their passport (valid for at least six months beyond period of intended stay in the US) and valid documentation, including a letter signed by the foreign media organization sponsoring the application outlining how the applicant qualifies for the I visa, as well as a valid employment contract. Applicants should allow enough time for the Embassy/Consulate to process the visa stamp (typically three to ten business days).

6. How long is the I visa valid?

I visas can be approved for up to five years; however, some Embassies and Consulates have recently begun issuing shorter term visas (six months to one year) depending on the amount of time they believe the applicant will need to finish the project or production outlined in the visa application. As long as the I visa holder enters the US during the validity period of the I visa stamp, they will be admitted to the US for “duration of status,” which means that they can remain in the US for as long as they work on the approved project. The visa will cease to be valid if the I visa holder works for a company other than the foreign media organization that sponsored their I visa application.

7. What about family?

An I visa holder’s spouse and child (under twenty-one) may also apply for derivative I visas that will allow them to accompany the I visa holder to the US. Spouses and children are not authorized to work in the US with the derivative I visa, but they may attend school or university while in the US, although the school may suggest they obtain a student visa (F-1).

8. What if the I visa holder receives a job offer with a new employer in the US?

If an I visa holder identifies a new work opportunity in the US with a new employer, they must discuss their visa options with their prospective employer. They may apply for a change of status to a new visa classification with the new employer. But they cannot commence working with the new employer until the change of status petition is approved.

9. What happens if the I visa holder leaves the foreign media organization sponsor?

If the I visa holder leaves the foreign media organization that sponsored the I visa, the I visa will no longer be valid as it is specific to their work for the foreign media organization that sponsored their application.  Even though the visa stamp may still be valid, if the I visa holder is not working with the sponsor, they are no longer in valid status.  

10. What if the I visa holder wants to stay in the US permanently?

If an I visa holder wishes to remain in the US permanently, they should consider an immigrant visa, more commonly known as a Green Card.  Generally, they must be sponsored either by a US employer or a by a US citizen family member, if applicable. It is best to discuss Green Card options with a lawyer in order to determine the best plan of action.

All US Embassies and Consulates Will Be Closed on October 9

The State Department informed the American Immigration Lawyers Association (AILA) that due to a Department of State consular systems upgrade, consular operations at all US Embassies and Consulates will be closed to the public on Friday, October 9, 2015. Individuals who already have an appointment scheduled for October 9 will be contacted to reschedule. Application Service Centers (ASCs) connected to certain posts may also experience closures. Applicants should review individual consular websites for additional information in the coming week, and also should prepare for possible delays in visa issuance after this date.