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TPS designation for Nepal is to end on June 24, 2019 instead of June 24, 2018

April 26, 2018. WASHINGTON. The Secretary of Homeland Security (DHS) Kirstjen M. Nielsen has determined that termination of the Temporary Protected Status (TPS) designation for Nepal. The TPS designation for Nepal will end on June 24, 2019 instead of June 24, 2018. It is advised those in TPS to seek other immigration benefits timely before TPS designation ends.

In its release DHS states that to allow for an orderly transition, the effective date of the termination of TPS for Nepal will be delayed 12 months to provide time for individuals with TPS to arrange for their departure or to seek an alternative lawful immigration status in the United States, if eligible. Nepali citizens in the United States who benefited from TPS may still receive other protections under our immigration system for which they are eligible.

The 12 months will also provide time for Nepal to prepare for the return and reintegration of its citizens. During this timeframe, DHS will work with the Department of State and the Government of Nepal to help educate relevant stakeholders and facilitate an orderly transition. In addition to materials posted online, DHS components will participate in outreach activities such as teleconferences, town halls and roundtables to ensure that affected populations have a full and accurate understanding of their rights and obligations.

Nepali citizens with current TPS registrations will be required to re-register for TPS and apply for Employment Authorization Documents in order to legally work in the United States until the termination of Nepal’s TPS designation becomes effective June 24, 2019.  Further details about this termination for TPS, including the re-registration period, will appear in a Federal Register notice. Nepali TPS beneficiaries should not submit re-registration applications until the re-registration period is announced through the Federal Register notice.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about TPS, other immigration benefits and options for TPS holders or other immigration law questions do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 529 6946, or email us at info@adhikarilaw.com

AILA’s “Invisible Wall” Report Sheds Light on Trump Administration Policies to Restrict Legal Immigration

WASHINGTON, D.C. – The American Immigration Lawyers Association (AILA) today released a new report, “Deconstructing the Invisible Wall: How Policy Changes by the Trump Administration are Slowing and Restricting Legal Immigration.” Highlighted by real-life case examples, the report describes the broad array of immigration-related policy and procedural changes that have been implemented by the administration that are harming U.S. businesses, American families, and the national economy.

“For decades, our legal immigration system has shaped the America we live in today. As family members reunite, as employers find the right talent, and as colleges and universities open their doors to students from around the globe, America has reaped the benefits of the contributions of immigrants.” said Annaluisa Padilla, AILA President. She continued, “New restrictive policies implemented without any action by Congress are now blocking these longstanding opportunities. Although these policies are promoted as necessary to protect national security and the American workforce, they are shrouded in the fallacy that immigration is bad for our country when study after study shows that immigration makes our country stronger.”

Ben Johnson, AILA Executive Director added, “As a nation, we cannot afford to turn our backs on legal immigration. Immigrants living and working in the United States based on employer sponsorship, family ties, and humanitarian protection build stronger communities, drive economic growth, and enrich our national culture. The ‘invisible wall’ that is quietly and deliberately being built by the administration is harmful to America and needs to be dismantled by the courts, by Congress, and by public opinion. Our shared prosperity and our country’s proud history as a nation of immigrants depend on it.”

The policies and issues detailed in the report include:

  • The travel bans and extreme vetting directives that halt or delay immigration without any justification beyond vague references to national security;
  • Policies restricting the admission of temporary skilled workers and entrepreneurs to the United States, impacting American businesses and slowing economic growth;
  • The termination of programs for compelling populations, sowing fear and confusion among thousands of individuals who have resided in the U.S. for decades;
  • The imposition of hurdles to naturalization for foreign-born soldiers, which are unnecessary and ignore the needs of the U.S. military; and
  • The growing backlog of immigration benefits applications, increasing processing times, and increasing fees, along with a decreasing focus on stakeholder input and customer service.

Cap Gap Extension for F-1 student for whom H-1B was timely filed with start date of Oct. 1

There is a limit, or “cap,” on the number of individuals who can receive H-1B status every fiscal year. For purposes of the cap, each fiscal year begins on Oct. 1 of the prior calendar year. Regulations prohibit employers from filing H-1B petitions until six months before the date of actual need for the employee. This means that once USCIS reaches the cap in one fiscal year, employers must wait until April 1, which is six months before the start of the next fiscal year, before filing H-1B petitions again.

A. International Students and H-1B Status

Each year, some F-1 students seek to switch nonimmigrant classification from F-1 student status to H-1B temporary employment status after completing a program of study or post-completion optional practical training (OPT). An F-1 student’s current or prospective employer may petition USCIS for H-1B status on their behalf. If you are an M-1 student, your prospective employer may petition H-1B status on your behalf if your employment does not relate to your M-1 program of study.

B. F-1 Status Gap

Many F-1 students complete a program of study or post-completion OPT in mid-spring or early summer. Per federal regulations, after completing their program or post-completion OPT, F-1 students have only 60 days to take the steps necessary to maintain legal status or depart the United States. However, because the change to H-1B status does not occur until Oct. 1, an F-1 student previously had two or more months following the 60-day period with no legal status. Prior to 2008, in these instances, an F-1 student would have to leave the United States or apply for H-1B status at a U.S. consulate or embassy, and then seek readmission to the United States.

C. Cap Gap Extension

To deal with this situation, the U.S. Department of Homeland Security established regulations that automatically extend F-1 status and, if applicable, post-completion OPT employment authorization from April 1 to Sept. 30 for eligible F-1 students. This is called “cap gap extension”.

The cap refers to the limit on the number of individuals who can receive H-1B status every fiscal year. The gap is the period between the end of an individual’s F-1 status and the beginning of the individual’s H-1B status. The cap gap extension allows for some F-1 students to extend their F-1 status and/or authorized period of post-completion OPT until they transition to the H-1B status on Oct.

Cap Gap Extension Eligibility

This means an F-1 student filing for H1-B status on April 1 or later with a benefit start date of Oct. 1 may qualify for an extension of status and/or employment authorization. The general eligibility requirements for the cap gap extension are listed below, but please understand that your individual case may be different and you should always talk with an immigration attorney or your designated school official (DSO) about whether you would qualify for a cap gap extension. Additionally, always maintain regular contact with your potential employer to receive updates on the status of your H-1B petition, should they file one for you.

As an F-1 student, you may be eligible for an extension of your F-1 status through Sept. 30 if you meet the following requirements:

  • Your potential employer files an H-1B petition in a timely manner with USCIS with an employment start date of Oct. 1.
  • You are maintaining your F-1 status on the date your potential employer files your H-1B petition.
  • USCIS receives the H-1B petition in a timely manner and issues a receipt for it.

You may be eligible for an extension of your F-1 status and authorized period of post-completion OPT (including STEM OPT) in the following circumstances:

  • Your employer files an H-1B petition in a timely manner with USCIS with an employment start date of Oct. 1.
  • You are maintaining your F-1 status on the date your potential employer files your H-1B petition.
  • You are in an authorized period of post-completion OPT (including the STEM OPT extension) on the date your potential employer files your H-1B petition.
  • USCIS receives the H-1B petition in a timely manner and issues a receipt for it.

If you are eligible for the cap gap extension, your proof that you are still in F-1 status and that you may continue OPT (if applicable) is a note on your Form I-20, “Certificate of Eligibility of Nonimmigrant Student Status.” Obtain an updated Form I-20 from your DSO when the Cap Gap extension begins with a note indicating that your F-1 status and, if applicable, your OPT authorization will continue, typically until Sept. 30.

If your H-1B petition is denied, withdrawn, revoked or not selected, an F-1 student will have the standard 60-day grace period from the date of the rejection notice or their program or OPT end date, whichever is later, to depart the United States.

Traveling on the Cap Gap Extension

Under certain circumstances, an F-1 student on the cap gap extension may travel abroad and seek readmission to the United States. However, if an F-1 student travels abroad before USCIS approves their H-1B change of status (COS) petition, USCIS will deem the petition abandoned. The student’s F-1 status will expire per the program end date listed on their Form I-20. Meaning, if a student leaves the United States before USCIS approves their H-1B COS petition, that student will not be able to re-enter the United States as an F-1 student pursuant to the cap gap extension provisions.

Specifically, you may travel abroad and seek readmission into the United States if you are an F-1 student on the cap gap extension and meet the following criteria:

  • Your H-1B petition and request for change of status has been approved by USCIS.
  • You seek readmission before your H-1B employment begins (normally such employment begins at the start of the fiscal year, i.e., Oct. 1).
  • You are otherwise admissible (e.g., you have all proper documentation including a valid, signed Form I-20 and an F-1 visa).

You will not need to provide an Employment Authorization Document (EAD). This requirement does not apply because during the cap gap period your EAD card will have already expired, and USCIS will not renew the EAD card during the interim period.

As with all other international arrivals at a U.S. port of entry, the final decision on whether to grant admission into the United States lies with U.S. Customs and Border Protection (CBP) officers.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

 

If you want to learn more about Cap Gap, other immigration law questions, or about our legal services do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at info@adhikarilaw.com

USCIS will accept quota-based H-1B petitions from April 2nd to 6th, 2018 and will temporarily suspend premium processing for Cap-subject petitions

Adhikari Law, Washington DC. Starting from April 2, 2018 through April 6th, 2018 USCIS will be accepting H-1B petitions subject to the Fiscal Year (FY) 2019 cap. It will also temporarily suspend premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This suspension is expected to last until Sept. 10, 2018. During this time, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap. USCIS will notify the public before resuming premium processing for cap-subject H-1B petitions or making any other premium processing updates.

Requesting Expedited Processing

While premium processing is suspended, a petitioner may submit a request to expedite an FY 2019 cap-subject H-1B petition if it meets the criteria on the Expedite Criteria webpage of USCIS. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria. USCIS reviews all expedite requests on a case-by-case basis.

Why USCIS is Temporarily Suspending Premium Processing for Quota-based Petitions

This temporary suspension will help USCIS to reduce overall H-1B processing times. By temporarily suspending premium processing, USCIS will be able to:

FY 2019 H-1B Cap and Cap Amounts
Last year, USCIS received more petitions than the available H-1B numerical cap (U.S. Master’s Cap 20,000 and regular cap 65,000), therefore, all the petitions had to go through a computer-generated random selection process (so called lottery) to select the petitions to allocate the statutory quota for FY 2018. After the numerical cap was allocated to the selected petitions USCIS returned those petitions which were not selected in lottery. The current annual cap on the H-1B category is 65,000, and out this up to 6,800 visas can be set aside each fiscal year for the H-1B1 program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B specialty occupation workers for the next fiscal year.
There is a high likelihood that USCIS may receive large number of petitions in the first week of April itself than the available statutory cap for the FY 2019 H-1B quota too. Therefore, it is better to plan well in advance so that all H-1B petitions reaches USCIS within “five business days of the month of April“. However, before filing of the H-1B petition, the LCA has to be certified by Department of Labor which takes at least 8 days.
In the past several years, USCIS received far more number of H-1B petitions within the first five business days of the month of April for the U.S. Master’s Cap as well as regular cap than the available numerical quota, therefore, USCIS had to conduct the lottery.
USCIS will continue to accept H-1B petitions that are not subject to annual numerical limitations, (e.g. H-1B amended petitions, H-1B transfers, H-1B extensions for those individuals whose petitions have already been counted against the cap), DOD petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2018.
The following tips to ensure that your petition is filed timely:
  • Get all supporting documents ready (letters of support, end-client letter, necessary filing fees, etc.).
  • Before filing the H-B petition the employer has to receive a certified Labor Condition Application (LCA) from the Department of Labor (DOL). It typically takes about eight days for DOL to certify an LCA. So the LCA should be filed as soon as possible and least 8 days before fourth business day of the month of April.
  • Evidence of Beneficiary’s Educational Qualifications:
    • A copy of beneficiary’s final transcripts. Petition has to include evidence of the beneficiary’s educational degree at the time of filing.  If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted:
      • A copy of the beneficiary’s transcript and a letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded)
  •  If you are indicating that the beneficiary is qualified based on a combination of education and experience, we would have to include substantiating evidence to show that through work experience letters.
  • ​If the beneficiary has only the foreign academic degree, if the the education is not related to the occupation, or has insufficient educational background then we will have to either the academic equivalency evaluation report or a work-experience evaluation report to satisfy the minimum education or experience requirement. This process can take 1-5 days.

If you want to learn more about Cap Subject H-1B or about our legal services for the preparation and the filing H-1B petition do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at contact@adhikarilaw.com

 

E-Verify new interface in late March: All E-Verify Cases With A Final Case Result Should Be Closed

Washington, D.C. On March 14,  2018 U.S. Citizenship and Immigration Services (USCIS) announced that E-Verify will transfer all case data to a new interface later this month. To assist in the transition USCIS required all open cases must reach a final case result and be closed.

Open cases that have not been accessed for more than 365 days will be closed by E-Verify, but will remain accessible to employers as completed or historical cases. Cases that have received a final result (Employment Authorized, Final Non-Confirmation) will be closed but will remain accessible to employers as completed or historical cases. Users are encouraged to complete and close their cases prior to the deployment date.

Open cases that are not completed, but were accessed within the last 365 days will remain open for the employer to continue processing.

Final Case Results

To complete the E-Verify process, a case must receive a final case result and then you must close it. E-Verify guides you through the process after you receive a final case result. The four possible final case results:

For more information, USCIS advises to learn how to properly close a case in E-Verify, pages 17-19 of the E-Verify Quick Reference Guide for Employers (PDF, 610 KB)E-Verify User Manual 4.04.1 Close Case4.2 Case Alert; and 4.1.1 Case Closure statements


If you want to learn more about E-Verify Program and about out legal services do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at contact@adhikarilaw.com

USCIS Policy Memo Provides Guidance on Contracts and Itinerary Requirements for H-1B Petitions

Washington, DC. USCIS has published a Policy Memo on Contracts and Itineraries Requirements for H-1B making clear that USCIS may request detailed documentation to ensure a legitimate employer-employee relationship is maintained while an employee is working at a third-party worksite.

USCIS clarifies existing regulatory requirements relating to H-1B petitions filed for workers who will be employed at one or more third-party worksites. This policy memorandum makes clear that employers must provide contracts and itineraries for employees who will work at a third-party location.

The guidance, effective Feb. 22, 2018, explains that, in order for an H-1B petition involving a third-party worksite to be approved, the petitioner must show by a preponderance of evidence that, among other things:

When H-1B beneficiaries are placed at third-party worksites, petitioners must demonstrate that they have specific and non-speculative qualifying assignments in a specialty occupation for that beneficiary for the entire time requested on the petition. While an H-1B petition may be approved for up to three years, USCIS will, in its discretion, generally limit the approval period to the length of time demonstrated that the beneficiary will be placed in non-speculative work and during which the petitioner will maintain the requisite employer-employee relationship.

Contracts as evidence to demonstrate the beneficiary will be employed in a specialty occupation

When a beneficiary will be placed at one or more third-party worksites, the petitioner must demonstrate that it has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested on the petition. The petitioner will need to show that:

In addition to contracts between the petitioner and its client for that worksite, the petitioner may be able to demonstrate that the beneficiary has actual work assignment(s) in a specialty occupation by providing a combination of the following or similar types of evidence:

Itinerary as evidence to demonstrate the beneficiary will be employed in a specialty occupation

In instances when a beneficiary will be placed at one or more third-party worksites, the petitioner must demonstrate that it has specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the entire time requested on the petition. Although the regulations only require that an itinerary contain the dates and locations of the services to be provided when the petition requires the beneficiary to work at multiple worksites, a more detailed itinerary can help to demonstrate that the petitioner has nonspeculative employment, even when the beneficiary will only be working at one third-party worksite. For instance, it could help USCIS determine whether there are specific and nonspeculative qualifying assignments if the petitioner submits a complete itinerary of services or engagements that specifies:

 

The updated policy guidance cites President Trump’s Buy American and Hire American Executive Order. Some legal experts have argued that this Executive Order may be against international trade and WTO rules, and this is a protectionist policy of current administration.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about this topic or immigration law questions, or about our legal services do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at info@adhikarilaw.com

PLAN EARLY TO MEET FY 2019 H-1B NUMERICAL CAP TO FILE PETITION IN APRIL 2018

ADHIKARI LAW, Washington, DC.  U.S. employers and H-1B beneficiaries should be aware that USCIS will begin accepting H-1B petitions on April 2, 2018 and through April 6th, 2018 under Fiscal Year (FY) 2019 numerical cap. If the petition is approved the H-1B beneficiary can start working on October 1, 2018 or earlier if he/she is eligible for H-1B cap-gap. It is important to start the H-1B sponsorship process well in advance to complete the pre-filing preparations including filing the Labor Condition Application (LCA) to Department of Labor. These pre-filing preparations may last for eight (8) days since the LCA certification itself takes at least 7 days out of those 8 days.

FY 2019 H-1B Cap and Cap Amounts
Last year, USCIS received more petitions than the available H-1B numerical cap (U.S. Master’s Cap 20,000 and regular cap 65,000), therefore, all the petitions had to go through a computer-generated random selection process (so called lottery) to select the petitions to allocate the statutory quota for FY 2018. After the numerical cap was allocated to the selected petitions USCIS returned those petitions which were not selected in lottery. The current annual cap on the H-1B category is 65,000, and out this up to 6,800 visas can be set aside each fiscal year for the H-1B1 program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B specialty occupation workers for the next fiscal year.
There is a high likelihood that USCIS may receive large number of petitions in the first week of April itself than the available statutory cap for the FY 2019 H-1B quota too. Therefore, it is better to plan well in advance so that all H-1B petitions reaches USCIS within “five business days of the month of April“. However, before filing of the H-1B petition, the LCA has to be certified by Department of Labor which takes at least 8 days.
In the past several years, USCIS received far more number of H-1B petitions within the first five business days of the month of April for the U.S. Master’s Cap as well as regular cap than the available numerical quota, therefore, USCIS had to conduct the lottery.
USCIS will continue to accept H-1B petitions that are not subject to annual numerical limitations, (e.g. H-1B amended petitions, H-1B transfers, H-1B extensions for those individuals whose petitions have already been counted against the cap), DOD petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2018.
Please note the following tips to ensure that your petition is filed timely:
  • Get all supporting documents ready (letters of support, end-client letter, necessary filing fees, etc.).
  • Before filing the H-B petition the employer has to receive a certified Labor Condition Application (LCA) from the Department of Labor (DOL). It typically takes about eight days for DOL to certify an LCA. So the LCA should be filed as soon as possible and least 8 days before fourth business day of the month of April.
  • Evidence of Beneficiary’s Educational Qualifications:
    • A copy of beneficiary’s final transcripts. Petition has to include evidence of the beneficiary’s educational degree at the time of filing.  If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted:
      • A copy of the beneficiary’s transcript and a letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded)
  •  If you are indicating that the beneficiary is qualified based on a combination of education and experience, we would have to include substantiating evidence to show that through work experience letters.
  • ​If the beneficiary has only the foreign academic degree, if the the education is not related to the occupation, or has insufficient educational background then we will have to either the academic equivalency evaluation report or a work-experience evaluation report to satisfy the minimum education or experience requirement. This process can take 1-5 days.

Published, January 29, 2018.


If you want to learn more about Cap Subject H-1B or about our legal services for the preparation and the filing H-1B petition do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7745, or email us at contact@adhikarilaw.com

E-Verify Requirement for NEW Federal Contractors and subcontractors

Federal contractors and subcontractors with the E-Verify Federal Acquisition Regulation (FAR) requirement must enroll in and use E-Verify. Beginning Jan. 5, 2018, new federal contractors and subcontractors with a FAR requirement must provide their Data Universal Numbering System (DUNS) during the E-Verify enrollment process. Existing E-Verify employers designated as federal contractors with a FAR requirement do not have to provide their DUNS number, but will be prompted to enter it in E-Verify when they update their company profile. To learn more about enrolling in E-Verify, use the E-Verify enrollment checklist and view the enrollment video.

Earlier we had published a detail blog post about E-verify for federal contractors, Notice to DHS Contractors and Subcontractors on Compliance with E-Verify.

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If you want to learn more about E-Verify program or need our legal services for the compliance with e-Verify and I-9 do contact us at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at contact@adhikarilaw.com

Impacts of Government Shutdown on mobility and visa matters

Washington, DC.  Due to a failure to pass a relevant funding bill (government budget), a shutdown of the United States federal government began at 12 am EST on Saturday, January 20, 2018. Federal government’s operations will vary by agency, and “non-essential operations” of impacted agencies will be closed because of the shutdown. Following are impacts of government shutdown on immigration matters:

We will be closely monitoring the legislative developments and updates from U.S. Senate and House of Representatives about impending shutdown.


For learning more about  this topic do contact our attorneys at (+1) 202 496 1295 or (+1) 888 820 4430 (toll free), or email us at contact@adhikarilaw.com