Business Immigration Monthly - April 2016

Date: 4/15/2016
 Business Immigration Monthly - April 2016

H-1B QUOTA FOR FISCAL YEAR 2017 REACHED -

USCIS COMPLETES RANDOM SELECTION PROCESS "LOTTERY"

The U.S. Citizenship and Immigration Services (USCIS) has announced that, as expected, the H-1B quota for fiscal year 2017 (October 1, 2016 to September 30, 2017) was reached during the initial filing period (April 1, 2016 to April 7, 2016). The USCIS received a total of 236,000 H-1B petitions during the initial filing period. Last year, the USCIS received approximately 233,000 H-1B petitions for the regular and U.S. Master's Degree exemption caps.

When the USCIS receives more H-1B quota petitions than allowed in a fiscal year, it conducts a computer-generated random selection process to choose which petitions it will accept and adjudicate. This is a random process with no preference given to the type of position, the beneficiary's country of birth, etc. The USCIS will actually complete two random selection processes this fiscal year. The first random selection process will be for those petitions claiming the U.S. Master's Degree or higher exemption because this exemption is limited to 20,000 and the USCIS has received in excess of 20,000 requesting this exemption. For those petitions claiming this exemption that are not selected in this first random selection process, they will then be added to the other regular quota petitions and then a second random selection process will be completed on all of these petitions. The regular H-1B quota is limited to 65,000.After the USCIS completes these two random selection processes, the USCIS will issue receipt notices for those petitions that were selected in either random selection process and will ultimately adjudicate the petitions. For the petitions that are not selected in either random selection process, the USCIS will return the petitions to the employer (or its attorney of record) without adjudicating them. Due to the estimated extremely large volume of H-1B quota petitions filed against the fiscal year 2017 quota, it may take the USCIS a few weeks to complete the random selection processes and begin to issue receipt notices. For those petitions not selected in a random selection process, it is assumed that the USCIS will take a few months after the completion of the random selection processes to return the unadjudicated petitions..


The U.S. Citizenship and Immigration Services (USCIS) has begun issuing receipt notices for cases filed under premium processing indicating that it has completed the random selection process or "lottery." Premium processing receipt notices are emailed first with the normal processing receipt notices being mailed a few weeks later. We assume that it may take the USCIS several months to return the petitions that were not selected in the random selection process.

Due to the limited availability of H-1B quota numbers each year, employers are reminded of the importance of advance planning for current and future employees that may be subject to the H-1B quota and to contact our office in January or February of every year to discuss the H-1B quota process and any alternatives.

E-Passports Now Required for All Visa Waiver Program Travelers

Effective April 1, 2016, all Visa Waiver Program (VWP) travelers are now required to use electronic passports (e-passports). VWP travelers that do not have an e-passport, will not be allowed to enter the United States under the VWP. They will have to apply for and obtain a visitor visa (B1/B2) from their local US Embassy or Consulate before entering the United States. An e-passport increases security because of the electronic microchip that includes the holders name, date of birth and other personal information.

The Visa Waiver Program allows certain nonimmigrants to enter the United States as a Visitor for Business or Pleasure for 90 days without having to previously secure a B-1/B-2 visa at their local U.S. Embassy or Consulate. Prior to entry, the traveler must register with ESTA online and pay a nominal fee. Citizens and nationals of the following countries are eligible to participate in the Visa Waiver Program: Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and United Kingdom. In the last few months, additional restrictions have been placed on VWP travelers. These can be reviewed: http://www.masudafunai.com/showarticle.aspx?Show=8767

Student Visa Fraud Uncovered – 21 Charged

Twenty-one individuals were arrested and charged last week for allegedly conspiring in a "pay-to-stay" program through a university that was created and run by Department of Homeland Security agents. The University of Northern New Jersey, appeared to be a real and legitimate university. It had its own website, Facebook page and several storefront locations. However, the university was run by Immigration Customs Enforcement's (ICE) Homeland Security Investigation (HSI) officers who created the university in 2013. The university held no classes and conducted no academic activities. The university made it known that it was authorized to issue Forms I-20, Certificates of Eligibility for Nonimmigrant Student Status for Academic and Language Students. The Form I-20 allows a nonimmigrant to enter the United States as a student.

Through recruiting companies and businesses, the twenty-one defendants allegedly recruited approximately 1,070 foreign nationals, mainly from China and India, as their clients. The defendants then solicited the university administrators to issue Forms I-20 to their clients knowing that their clients would not attend classes, earn credits or a degree. The defendants helped in the creation of fraudulent academic records, which included transcripts and diplomas. These fake records were then purchased by their foreign national clients. In this way, the foreign nationals appeared to be enrolled in a legitimate university and appeared to maintain their nonimmigrant status. In other cases, the defendants coordinated the issuance of fraudulent documents from the university for their clients who then submitted these documents to other immigration agencies to apply for work authorization documents (Employment Authorization Documents) and work visas. Some defendants coordinated fake IT projects through the university, which involved the drafting of fake contracts, employment confirmation letters and transcripts. These fake documents were then submitted to the US Citizenship and Immigration Services (USCIS) to apply for H-1B work visas. In most cases, the visas were not issued because officials alerted the USCIS of the ongoing investigation.

The foreign national students allegedly knew that the defendants were engaging in fraudulent activity. They also allegedly knew that they would not have to attend classes and that they were not enrolling in an actual academic program. Starting on April 5th, HSI, in coordination with the ICE's Counterterrorism and Criminal Exploitation Unit (CTCEU) and ICE's Student and Exchange Visitor Program (SEVP), began to terminate the 1,076 foreign national students' status. They may also, if applicable, be administratively arrested and placed into removal proceedings. For a full list of all the defendants, their charges and for more information: https://www.ice.gov/news/releases/21-charged-fraudulently-enabling-hundreds-foreign-nationals-remain-us-through-fake-

ANOTHER SCHOOL IS REMOVED FROM SEVIS

SEVP published this week that the Universal English Center Corporation (UEC), a language school in New York City, will be terminated from the Student and Exchange Visitor System (SEVIS) on May 13, 2016. This will render the school unable to issue Forms I-20, Certificate of Eligibility for Nonimmigrant Student Status, for foreign students to attend their school. Foreign students that are current enrolled at UEC have the following options: 1) enroll in another SEVP approved school; 2) change their status from foreign student to another valid nonimmigrant status; or 3) leave the United States. If the foreign students do not take any of these actions, they will be no longer considered in valid status. Foreign students that had received a Form I-20, but had not yet entered the United States, will not be admitted using the Form I-20 issued by UEC.

Visa Bulletin for May 2016

The Department of State (DOS) released the monthly Visa Bulletin and below is a summary of green card Final Action Dates and Dates For Filing dates for employment-based immigrant visa categories for the month of May.

PLEASE NOTE: Per a new USCIS policy, a week after the Department of State (DOS) issues its monthly Visa Bulletin indicating immigrant visa availability for the next month, the USCIS will make its own separate determination on green card availability. If green cards are available for a certain category, the USCIS will post its own notice on its website at: www.uscis.gov/visabulletininfo to alert immigrants applying in those categories with more availability, that they may use the Dates for Filing chart and not the Final Action Date chart. Thus immigrants may no longer rely on the DOS Visa Bulletin, but must wait one week after its publication and then look to the USCIS to see whether a green card is available to them.

Green Card "Dates for Filing" Availability Dates

Individuals with priority dates prior to the dates listed in the chart below are eligible to file their green card applications during the month of May.

Employment-
Based

All Chargeability
Areas Except
Those Listed

CHINA-
mainland
born

INDIA

MEXICO

PHILIPPINES

1st

CURRENT

CURRENT

CURRENT

CURRENT

CURRENT

2nd

CURRENT

01SEP12

CURRENT

22NOV08

CURRENT

3rd

15FEB16

15AUG13

15FEB16

01SEP04

15FEB16

Other Workers

15FEB16

22APR07

15FEB16

01SEP04

15FEB16

4th

CURRENT

CURRENT

01JAN10

CURRENT

CURRENT

Certain Religious Workers

CURRENT

CURRENT

01JAN10

CURRENT

CURRENT

5th
Non-Regional
Center
(C5 and T5)

CURRENT

08FEB14

CURRENT

CURRENT

CURRENT

5th
Regional
Center
(I5 and R5)

CURRENT

08FEB14

CURRENT

CURRENT

CURRENT

Green Card Approval "Final Action Dates"

Individuals with priority dates prior to the dates listed in the chart below have a green card available to them during the month of May, therefore, the US government may take final action on their case.

Employment- Based

All Chargeability Areas Except Those Listed

CHINA - mainland born

INDIA

MEXICO

PHILIPPINES

1st

CURRENT

CURRENT

CURRENT

CURRENT

CURRENT

2nd

CURRENT

01JUN13

01JUL09

CURRENT

CURRENT

3rd

CURRENT

01MAY15

01JUL05

CURRENT

01JAN10

Other Workers

CURRENT

01APR08

01JUL05

CURRENT

01JAN10

4th

CURRENT

CURRENT

CURRENT

CURRENT

CURRENT

Certain Religious Workers

CURRENT

CURRENT

CURRENT

CURRENT

CURRENT

5th
Non-Regional
Center
(C5 and T5)

CURRENT

01MAY15

CURRENT

CURRENT

CURRENT

5th
Regional
Center
(I5 and R5)

CURRENT

01MAY15

CURRENT

CURRENT

CURRENT



Below is a summary of changes from the visa bulletin for last month for Final Action Dates:

· The EB-2 China category has stalled at September 1, 2012.

· The EB-2 India category has advanced several weeks from November 8, 2008 to November 22, 2008.

· The EB-3 World and Mexico categories have stalled at February 15, 2016.

· The EB-3 China category has stalled at August 15, 2013.

· The EB-3 India category advances several weeks from August 8, 2004 to September 1, 2004.

· The EB-3 Philippines category advances several months from May 1, 2008 to August 8, 2008.

· The EB-5 China advances a few days from February 1, 2014 to February 8, 2014.

· Cap on nationals from El Salvador, Guatemala and Honduras in the following categories: EB-3, Other Workers, EB-4 and Certain Religious Workers.

SUMMARY OF NEW 24-MONTH STEM OPT REGULATION

Below is a summary of the new 24-month STEM OPT regulation that was released last Friday which replaces the 17-month STEM OPT program. The new regulation will be effective as of May 10, 2016.

General Provisions

· Increases the period of OPT extension from 17 months to 24 months.

· Creation of a formalized Training Plan for STEM OPT Students, Form I-983, (an overview is available here: https://studyinthestates.dhs.gov/students-and-the-form-i-983) that the student and employer must complete.

· The Department of Homeland Security is clarifying that students must have a bona fide employment relationship with the provider of the training. Therefore, currently acceptable employment arrangements where the student is hired by a staffing company, temp agency, sole proprietorship, multiple employer arrangements, etc. may no longer be acceptable. The new rule requires the employer signing the Training Program is the employer actually providing the training.

· STEM OPT extension cannot be based on a degree from an unaccredited school.

· Implementation of site visits (most likely to be conducted by Immigration Customs Enforcement) to employer worksites. Employers will be provided advance notice of 48 hours, unless the site visit is based on a complaint or there is evidence of noncompliance, whereby there will be no advance warning.

· Creation of four significant reporting requirements: 1) validation requirement every six months where student must verify their legal name, address and employer information; 2) annual self-evaluation, where the student provides an update on the training program, which must be signed by the employer; 3) requirement that the student and the employer report any changes in the employment to the DSO, such as termination; and 4) requirement that the student and employer report any material changes or deviations to the training program to the DSO.

· Definition of which STEM fields qualify for the extension and creation of a public notification process by which the list can be updated. The list will be known as the STEM Designated Degree Program List.

· Changes the unemployment limitations during the practical training period from 90 days during initial OPT period and up to 30 additional days (for a total of 120) for students approved for the 17-month STEM OPT extension, to 90 days during initial OPT period and up to 60 additional days (for a total of 150) for students approved for the 24-month STEM OPT extension. Consistent with the current law, the student will receive a new 150 days for each OPT period.

Provisions Preserved From Old Regulation

· Employers must enroll and be in good standing with E-Verify and must report changes in the employment and training to the DSO within 5 business days.

· Students must report to their DSO any changes in name, address, employer's name and address and must periodically review the accuracy of their information.

· Maintenance of Cap-Gap extension whereby a student's employment authorization is extended to September 30th if he/she is the beneficiary of a timely filed H-1B petition requesting a change of status, which remains pending or has been approved.

· If an employment authorization application is properly filed and remains unadjudicated, student's employment authorization is extended for 180 days.

Training Program for STEM OPT Students, Form I-983

· Training Program must be submitted to DSO before DSO can recommend the STEM OPT extension.

· Employers are permitted to utilize currently existing training programs to meet some of the regulatory requirements.

· Employers are required to report material changes, including change in employer FEIN, reduction in compensation (not a result of working less hours) and major decrease in hours worked per week (including less than 20 hours per week, which would violate the STEM OPT eligibility requirements), to the DSO.

· Students changing employers must submit a new Training Program to their DSO within 10 days of the start of the new employment and obtain the DSO's recommendation for the new employment.

· The student and employer must sign an annual evaluation, with one evaluation after the first 12 months and a final evaluation before the end of the STEM OPT period.

Prior Degrees

· Allows students on a 12-month OPT period based on non-STEM degrees to apply for the 24-month STEM OPT extension based on a previously conferred STEM degree. The 24-month STEM OPT training must be related to the original STEM degree. The school from which the prior degree was earned must be accredited and SEVP-certified at the time of the STEM OPT extension application.

· Previously earned STEM degrees may serve as a basis for a 24-month STEM OPT extension, however, the degree must have been earned from an accredited institution. Additionally, the STEM degree must have been conferred within 10 years from the date the DSO recommends the 24-month STEM OPT extension.

· Degrees earned at overseas campuses of U.S. based schools do not qualify.

· Accredited institution is defined as an institution accredited by an accrediting organization recognized by the Department of Education.

· The STEM OPT employment must be directly related to the STEM degree and the degree must be a bachelor's, master's or doctoral degree.

· Dual degrees do qualify, as long as one of the degrees is in a qualified STEM field.

· A second 24-month STEM OPT extension must be based on a degree that is at a higher level than the degree that formed the basis for the first 24-month STEM OPT extension.

· Student cannot complete two consecutive STEM OPT extensions, i.e., students cannot apply for a 24-month STEM OPT extension based on a previously earned degree immediately after a 24-month STEM OPT extension. The student would have to complete a new course of study and a new 12-month OPT period before qualifying for a new 24-month STEM OPT extension.

Employer Attestations & Obligations

· Imposes significant obligations on employers, including attesting that it: 1) will provide assistance to the student with the creation and maintenance of the Training Program; 2) has adequate resources and personnel to provide training to the student; 3) that the student will not replace a US worker (including full/part-time, temporary/permanent); and 4) that the employment will assist the student further his/her training goals.

· Employer must attest in the Training Program that the employment terms and conditions it offers the student, including duties, hours and compensation, are commensurate to those it offers similarly situated US workers (when employer has less than two similarly situated US workers, it will have to compare the terms and conditions to those of similarly situated US workers in the area of employment).

· The Training Program can be signed by any authorized employee of the employer, a change from the proposed rule where the signatory had to be the student's supervisor.

· An employer will no longer have to provide their E-Verify Company Identification Number (E-Verify ID Number) to the employee, instead, the employer and the student will have to complete the Form I-983.

Additional Changes

· Creation of a new portal in SEVIS in 2017, which will allow students to submit changes to their information directly into SEVIS, as opposed to notifying their DSO to submit the change.

· Prohibition on students working as volunteers.

· Students may not sign their own Training Program, thereby precluding self-employment, which is currently permitted.

· Clarifies that students may qualify for the 24-month STEM OPT extension if they have not completed their thesis requirement, as long as that is the only degree requirement remaining at the time of the extension application. This is not applicable where the thesis was a requirement of a previously earned STEM degree if the student is applying for OPT based on that degree.

· Students must file the employment authorization application within 60 days of the DSO entering the STEM OPT recommendation into SEVIS (increased from 30 days under the current rule).

· Students are limited to two lifetime 24-month STEM OPT extensions.

Clarification on Cap-Gap Provisions

· A student's cap-gap employment authorization is automatically terminated when an H-1B employer withdraws their petition before approval.

· Students may change employers during the cap-gap period, as long as it meets all other OPT requirements.

· Clarification that cap-gap provisions only apply to H-1B petitions that are subject to the H-1B statutory cap.

· Somewhat indicates that international travel is permitted as long as the H-1B petition has been approved, the student seeks admission before the H-1B employment starts and the student is otherwise admissible. However, the rule indicates that it is up to Customs and Border Protection to determine admissibility. Further, students are reminded that international travel during the processing of a change of status will result in the abandonment of the change of status request.

Transition Procedures

· Students who qualify for the 17-month STEM OPT extension should continue to submit their Form I-765 to the Department of Homeland Security until May 9, 2016. On or around May 10, 2016, the Department of Homeland Security will start issuing Requests for Evidence (RFEs) to students with pending applications. These RFEs will allow students to amend their application to qualify for the 24-month STEM OPT extension, with no additional fee or resubmission of a new Form I-765. These documents will include a Form I-20 Certificate of Eligibility issued by a DSO recommending the 24-month STEM OPT extension. Students are warned against withdrawing 17-month STEM OPT extensions and filing new applications when they are not in a valid OPT period, which may cause them to fall out of status.

· The Department of Homeland Security will start accepting applications for the 24-month STEM OPT program on May 10, 2016.

· Students who are already in a 17-month STEM OPT period, will be allowed to apply for an additional 7 months of OPT by filing a Form I-765 with fee and supporting documents. The application must be filed on or before August 8, 2016 and within 60 days of the date that the DSO recommending the OPT. Additionally, at least 150 calendar days of the 17-month OPT must be remaining at the time the application is submitted. The student must comply with all other 24-month STEM OPT requirements, except, that the 150 days of unemployment will only apply to the student after the 7-month extension has been approved.

Countries Added to List of Prohibited Countries for Visa Waiver Program

The Department of Homeland Security (DHS) has added several countries to the list of travel restricted countries for nationals eligible to use the Visa Waiver Program. The new countries are Libya, Somalia and Yemen and only apply to countries that are subject to travel restrictions, not dual nationals. To summarize: nationals of the following Visa Waiver Program countries are no longer be permitted to use the Visa Waiver Program if they travelled to or were present in the following countries on or after March 1, 2011: Iran, Iraq, Sudan, Syria, Libya, Somalia or Yemen. Nationals of Visa Waiver Program countries that are also nationals of Iran, Iraq, Sudan or Syria are also no longer able to use the Visa Waiver Program. Exceptions are made for travel/presence in a prohibited country if the individual's purpose of travel was to fulfill military service for the armed forces of a Visa Waiver Program country or to comply with official duties as a full-time employee of a Visa Waiver Program country's government. These exceptions do not apply to individuals who are also dual-nationals with Iran, Iraq, Sudan or Syria.

Waivers are available in situations concerning law enforcement or national security interests. These may include individuals with travel/presence in a prohibited country on official business of an international, regional or sub-national organization, humanitarian NGO, or as a journalist; and individuals traveling for a legitimate business purpose to Iran after the Iran deal of July 14, 2015 (Joint Comprehensive Plan of Action) or Iraq.

These restrictions are not an absolute travel ban, but serve to better screen Visa Waiver Program travelers. Essentially, affected individuals must apply for a B visa at their local US Embassy or Consulate before entering the United States. Furthermore, the Department of State has now revised the Electronic System for Travel Authorization (ESTA) application to incorporate questions on travel/presence and nationality of a prohibited country and the military service/government employee exception. The Department of State has directed individuals who believe that they may qualify for the exception to carry supporting documentation when they travel to the United States. Travelers covered by these restrictions who are already physically present in the United States are not affected. However, they would not be able to return to the United States using the Visa Waiver Program after any subsequent international travel.

The Visa Waiver Program allows certain nonimmigrants to enter the United States as a Visitor for Business or Pleasure for 90 days without having to previously secure a B-1/B-2 visa at their local U.S. Embassy or Consulate. Prior to entry, the traveler must register with ESTA online and pay a nominal fee. Subject to the restrictions in this article, citizens and nationals of the following countries are eligible to participate in the Visa Waiver Program: Andorra, Australia, Austria, Belgium, Brunei, Chile, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Japan, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, San Marino, Singapore, Slovakia, Slovenia, South Korea, Spain, Sweden, Switzerland, Taiwan, and United Kingdom.

Creation of Online Registry for Chinese B Visa Holders

Starting in November 2016, Chinese nationals holding a 10-year tourism or business visitor visa (B1/B2, B1 or B2) will required to register with an online system, the Electronic Visa Update System (EVUS). Chinese nationals (including Taiwan, Hong Kong and Macau traveling on a Chinese passport) will not be able to enter the United States in B status without previously completing the EVUS registration. The EVUS registration is part of a recent accord with China that allows for the reciprocal issuance of 10-year visas.

The EVUS registration will request an individual's name, birth date, passport and other biographical and employment information. The EVUS registration will be valid for two years and will require payment of a small fee. Chinese travelers will have to update their EVUS registration before traveling to the United States and if they obtain a new passport. Further information on the EVUS system as well as recently released Frequently Asked Questions can be seen here: http://www.cbp.gov/travel/international-visitors/electronic-visa-update-system-evus/frequently-asked-questions

MFEM NEWS

Ms. Esther Contreras speaks at National Hispanic Bar Association Conference

Ms. Contreras, a Principal in the firm's Immigration Practice Group, spoke at the National Hispanic Bar Association (HNBA) Corporate Counsel Conference in Las Vegas in March. The conference draws over 1,000 participants, including attorneys, judges, and law students from across the country, public officials, business leaders, and in-house counsel from many Fortune 100 and other corporations. Ms. Contreras spoke on a panel titled, "W-2 or 1099? Employee and Independent Contractor Issues in the Uber Age" providing a perspective on immigration issues affecting companies such as misclassification of employees for Form I-9 purposes and special considerations when working with PEO's and staffing companies.

Mr. Bob White Participates in Numerous Presentations Regarding the Implementation of the New STEM OPT Regulations

Mr. Bob White, a Principal in the firm's Immigration Practice Group, has given (and has been invited to give) multiple seminars and webinars regarding the implementation of the new STEM OPT regulations. The new regulations completely revise the STEM OPT program and become effective on May 10, 2016. On Wednesday, April 13, Mr. White was a speaker in the American Immigration Lawyers Association's (AILA) late-breaking webinar regarding the new regulations. More than 500 attorneys and employers attended this webinar. On April 22 and April 25, Mr. White will be a speaker in the NAFSA: Association of International Educators' Region 5 seminars/webinar regarding the effect of the new regulations on schools and their students. If you have questions about the new STEM OPT regulations and/or how they will be implemented, please feel free to contact Mr. White at rwhite@masudafunai.com.



Ms. Esther Contreras to speak at the Illinois Department of Employment Security/IL workNet Business Employer Workshop Seminar and the South Suburban Cook Human Resources Association.

In May, Ms. Contreras will be the main presenter at the Illinois Department of Employment Security/IL workNet Business Employer Workshop Seminar in Arlington Heights and the South Suburban Cook Human Resources Association (HRA) monthly meeting in Matteson, IL. The Business Employer Workshop is hosted by Business & Career Services, Inc. and features topics affecting employers. The South Suburban Cook HRA is an organization for human resources professionals in Chicago's southern suburbs and is affiliated with the Society for Human Resource Management (SHRM). Ms. Contreras will speak to both groups about Form I-9 compliance, providing a basic overview of the completion process, reviewing common mistakes, best practices, and will focus on recently issued government guidance and the latest version of form, the "Smart" I-9.