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USCIS will start accepting H-1B petitions under FY 2018 quota beginning from April 3rd to 7th, 2017

February 22, 2017, Washington DC. Adhikari Law advises it’s clients and other corporations and legal entities to start planning for the filing of H-1B petitions under Fiscal Year 2018 cap. According to H-1B regulations, USCIS will start accepting petitions beginning from Monday, April 3rd, 2017 and will last for five business day until April 7th. Therefore it is critical that employers plan in advance to avoid last minute rush and potential deficiency in documentation.

Plan early to meet FY 2018 H-1B numerical cap to file Petition in April 2017

February 7, 2017.

ADHIKARI LAW suggests H-1B petitioners to keep in mind that USCIS will begin accepting H-1B petitions on April 1, 2017 for the Fiscal Year (FY) 2018 H-1B  quota cases. If the petition is approved the H-1B beneficiary can start working on October 1, 2017 or earlier if he/she is eligible for H-1B cap-gap. It is very important to start the H-1B sponsorship process as soon as possible to make sure all the petitions are timely filed.
FY 2018 H-1B Cap and Cap Amounts
Last year, USCIS received a sufficient number of H-1B petitions to reach the statutory cap for FY 2017 in first week of April, 2016. After the numerical cap is reached, USCIS will reject petitions subject to the H-1B. The current annual cap on the H-1B category is 65,000, and out this up to 6,800 visas are 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 the FY 2018 H-1B quota might be reached much earlier than last year. It should be noted that in the past the numerical quota was reached in a short period of time, sometimes within a week.
Therefore, it is better to plan everything in advance so that all H-1B petition will be filed in a timely manner.
Most importantly, USCIS will continue to accept H-1B petitions that are not subject to annual numerical limitations, (e.g. H-1B amended petitions, H-1B extensions for individuals who have already been counted against the cap within the last six years, etc.), 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 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 seven business days for the DOL to certify an LCA, so the LCA should also be filed as soon as possible.
  • 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.
  • ​If the benefciary has a foreign academic degree and professional experience letters then we may need to obtain a credential evaluation, a process that can also take a few days

USCIS Will Accept Only New Forms Starting Feb. 21, 2017

Important reminder: Please check USCIS website for their current filing fees and acceptable versions of forms.

USCIS: On Dec. 23, 2016, our new fees took effect and we published updated versions of our forms. We strongly encourage customers to go to uscis.gov/forms to download and submit these new versions, which are updated with the new fees and have an edition date of 12/23/16.

Starting Feb. 21, 2017, we will no longer accept previous editions of these forms. See our complete list of the new fees at uscis.gov/forms/our-fees and make sure you are including the correct amount. You must include the new fee or USCIS will reject and return your filing.

The updated forms are currently available at uscis.gov/forms, where all of our forms can be downloaded for free. Additionally, you can request paper copies through our forms request line (800-870-3676) and forms by mail service.

USCIS also reminds applicants and petitioners to pay the $85 biometric services fee at the time of filing for benefit requests that require biometrics, or we will reject the request.

And remember, the wrong legal help can hurt! To get information on protecting against immigration services scams, visit uscis.gov/avoidscams.

USCIS Proposes to Increase EB-5 Investment thresholds and proposes Other Program Changes

U.S. Citizenship and Immigration Services (USCIS) has published a proposed rule for public comments. In its proposed rule, USCIS proposes to make changes to the EB-5 immigrant investor program, including higher investment thresholds and give federal government exclusive authority to designate Targeted Employment Area (TEAs), the rural and high-unemployment areas that qualify for EB-5 investment at lower investment thresholds.

Some of the major provisions of the proposed rules are the following:

Higher Investment Thresholds 

The proposed rule proposes to increase the minimum thresholds for participation in the EB-5 program, which currently stand at $500,000 for TEA investments and $1 million for all other EB-5 investments.  The minimum investment for TEAs would increase to $1.35 million.  The regular minimum investment threshold would increase to $1.8 million.  Investment thresholds would increase automatically every five years, keyed to the Consumer Price Index.

USCIS will have exclusive authority to designate Targeted Investment Areas (TEAs) 

The proposed rule would give USCIS the exclusive authority to designate TEAs.  Currently, individual States have the authority to designate high-unemployment TEAs, in recognition of their superior knowledge of local demographics and employment needs.

Under the proposal, USCIS would designate TEAs based on a new methodology that would limit investment to more strictly demarcated areas.  This could limit the types of urban development projects that have proven most desirable to foreign investors in recent years.

Priority Date Retention for Foreign Investors

The proposal would permit EB-5 petitioners to retain their priority date – the date that fixes their place in line for an immigrant visa number – if circumstances beyond their control require the filing of a subsequent EB-5 petition.  This provision could aid foreign investors whose initial EB-5 petition is detrimentally affected by the termination of a Regional Center or a material change in a business plan.  If finalized, priority date retention would be a significant benefit to Chinese EB-5 investors, who are subject to multi-year backlogs.

 

What you need to know as a Foreign Investor? 

This is a proposed rule only, it will not take effect until the agency reviews public comments and issues a final regulation – a process that typically takes several months.  Implementation of the proposal could also be delayed or suspended by the administration.

The proposed regulation comes as Congress considers the re-authorization of the EB-5 Regional Center program, which was set to expire on April 28. Recently U.S. President signed a spending package that includes a short-term continuing resolution (CR) extending the EB-5 Regional Center Program through December 7, 2018. Through December 7, 2018, prospective investors can still qualify under existing program rules, including the current investment thresholds of $500,000 and $1 million.

 

(last updated September 28, 2018)


If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

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

Happy New Year from Adhikari Law

Happy New Year 2017 from Adhikari Law

USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

 USCIS has published   final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended regulations to better enable U.S. 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. This rule will go into effect on Jan. 17, 2017.
The final rule is intended to benefit U.S. employers and foreign workers participating in these programs by streamlining the processes for employer sponsorship of nonimmigrant workers for lawful permanent resident (LPR) status, increasing job portability and otherwise providing stability and flexibility for such workers, and providing additional transparency and consistency in the application of DHS policies and practices related to these programs. These changes are primarily intended to better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of employment-based immigrant visa (Form I-140) petitions, while increasing the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers, and pursuing other employment opportunities.

Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication. Specifically, the final rule clarifies and improves policies and practices related to:
  • H-1B extensions of stay under AC21. The final rule addresses the ability of H-1B nonimmigrant workers who are being sponsored for LPR status (and their dependents in H-4 nonimmigrant status) to extend their nonimmigrant stay beyond the otherwise applicable 6-year limit pursuant to AC21.
  • INA 204(j) portability. The final rule addresses the ability of certain workers who have pending applications for adjustment of status to change employers or jobs without endangering the approved Form I-140 petitions filed on their behalf.
  • H-1B portability. The final rule addresses the ability of H-1B nonimmigrant workers to change jobs or employers, including: (1) Beginning employment with new H-1B employers upon the filing of non-frivolous petitions for new H-1B employment (“H-1B portability petition”); and (2) allowing H-1B employers to file successive H-1B portability petitions (often referred to as “bridge petitions”) and clarifying how these petitions affect lawful status and work authorization.
  • Counting against the H-1B annual cap. The final rule clarifies the way in which H-1B nonimmigrant workers are counted against the annual H-1B numerical cap, including: (1) The method for calculating when these workers may access so-called remainder time (i.e., time when they were physically outside the United States), thus allowing them to use their full period of H-1B admission; and (2) the method for determining which H-1B nonimmigrant workers are “cap-exempt” as a result of previously being counted against the cap. 
  • H-1B cap exemptions. The final rule clarifies and improves the method for determining which H-1B nonimmigrant workers are exempt from the H-1B numerical cap due to their employment at an institution of higher education, a nonprofit entity related to or affiliated with such an institution, or a governmental or nonprofit research organization, including a revision to the definition of the term “related or affiliated nonprofit entity.”
  • Protections for H-1B whistleblowers. The final rule addresses the ability of H-1B nonimmigrant workers who are disclosing information in aid of, or otherwise participating in, investigations regarding alleged violations of Labor Condition Application (LCA) obligations in the H-1B program to provide documentary evidence to USCIS to demonstrate that their resulting failure to maintain H-1B status was due to “extraordinary circumstances.”
  • Form I-140 petition validity. The final rule clarifies the circumstances under which an approved Immigrant Petition for Alien Worker (Form I-140 petition) remains valid, even after the petitioner withdraws the petition or the petitioner’s business terminates, including for purposes of status extension applications filed on behalf of the beneficiary, job portability of H-1B nonimmigrants, and job portability under section 204(j) of the Immigration and Nationality Act (INA), 8 U.S.C. 1154(j) (i.e.  Form I-140 petition is pending or approved as long as his or her Form I-485 adjustment application has been pending for at least 180 days).
Second, this rule builds on the provisions listed above by making changes consistent with the goals of AC21 and ACWIA to further provide stability and flexibility in certain immigrant and nonimmigrant visa categories. The amended provisions improve the ability of certain foreign workers, particularly those who are successfully sponsored for LPR status by their employers, to accept new employment opportunities, pursue normal career progression, better establish their lives in the United States, and contribute more fully to the U.S. economy. These changes also provide certainty for the regulated community and improve consistency across DHS adjudications, thereby enhancing DHS’s ability to fulfill its responsibilities related to U.S. employers and certain foreign workers. Specifically, the final rule provides the following:
  • Establishment of priority dates. To enhance clarity for the regulated community, the final rule provides that a priority date is generally established based upon the filing of certain applications or petitions. The new regulatory language is consistent with existing DHS practice in establishing priority dates for other Form I-140 petitions that do not require permanent labor certifications (labor certifications)—such as petitions filed under the employment-based first preference immigrant visa (EB-1) category.
  • Retention of priority dates. To enhance job portability for workers with approved Form I-140 petitions, the final rule explains the circumstances under which workers may retain priority dates and effectively transfer those dates to new and subsequently approved Form I-140 petitions. Priority date retention will generally be available as long as the approval of the initial Form I-140 petition was not revoked for fraud, willful misrepresentation of a material fact, the invalidation or revocation of a labor certification, or material error. This provision improves the ability of certain workers to accept promotions, change employers, or pursue other employment opportunities without fear of losing their place in line for immigrant visas.
  • Retention of employment-based immigrant visa petitions. To enhance job portability for certain workers with approved Form I-140 petitions in the EB-1, second preference (EB-2), and third preference (EB-3) categories, but who are unable to obtain LPR status due to immigrant visa backlogs, the final rule provides that Form I-140 petitions that have been approved for 180 days or more would no longer be subject to automatic revocation based solely on withdrawal by the petitioner or the termination of the petitioner’s business. (this will tremendously benefit skilled workers from India and China).
  • Eligibility for employment authorization in compelling circumstances. To enhance stability and job flexibility for certain high-skilled nonimmigrant workers in the United States with approved Form I-140 petitions who cannot obtain an immigrant visa due to statutory limits on the number of immigrant visas that may be issued, the final rule allows certain beneficiaries in the United States in E-3, H-1B, H-1B1, L-1, or O-1 nonimmigrant status to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization.
  • 10-day nonimmigrant grace periods. To promote stability and flexibility for certain high-skilled nonimmigrant workers, the final rule provides two grace periods of up to 10 days, consistent with those already available to individuals in some nonimmigrant classifications, to individuals in the E-1, E-2, E-3, L-1, and TN classifications. The rule allows an initial grace period of up to 10 days prior to the start of an authorized validity period, which provides nonimmigrants in the above classifications a reasonable amount of time to enter the United States and prepare to begin employment in the country. The rule also allows a second grace period of up to 10 days after the end of an authorized validity period, which provides a reasonable amount of time for such nonimmigrants to depart the United States or take other actions to extend, change, or otherwise maintain lawful status. 
  • 60-day nonimmigrant grace periods. To further enhance job portability, the final rule establishes a grace period of up to 60 consecutive days during each authorized validity period for individuals in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN classifications. This grace period allows high-skilled workers in these classifications, including those whose employment ceases prior to the end of the petition validity period, to more readily pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications or employment in the same classification with a new employer. The grace period also allows U.S. employers to more easily facilitate changes in employment for existing or newly recruited nonimmigrant workers.
  • H-1B licensing. To provide clarity and certainty to the regulated community, the final regulations codify current DHS policy regarding exceptions to the requirement that makes the approval of an H-1B petition contingent upon the beneficiary’s licensure where licensure is required to fully perform the duties of the relevant specialty occupation. The final rule generally allows for the temporary approval of an H-1B petition for an otherwise eligible unlicensed worker, if the petitioner can demonstrate that the worker is unable for certain technical reasons to obtain the required license before obtaining H-1B status. The final rule also clarifies the types of evidence that would need to be submitted to support approval of an H-1B petition on behalf of an unlicensed worker who will work in a state that allows the individual to be employed in the relevant occupation under the supervision of licensed senior or supervisory personnel.
  • The final rule automatically extends the validity of Employment Authorization Documents (EADs or Forms I-766) in certain circumstances based on the timely filing of EAD renewal applications. Specifically, the rule automatically extends the employment authorization and validity of existing EADs issued to certain employment-eligible individuals for up to 180 days from the date of expiration, as long as: (1) A renewal application is filed based on the same employment authorization category as the previously issued EAD (or the renewal application is for an individual approved for Temporary Protected Status (TPS) whose EAD was issued under 8 CFR 274a.12(c)(19)); (2) the renewal application is timely filed prior to the expiration of the EAD (or, in accordance with an applicable Federal Register notice regarding procedures for renewing TPS-related employment documentation) and remains pending; and (3) the individual’s eligibility for employment authorization continues beyond the expiration of the EAD and an independent adjudication of the underlying eligibility is not a prerequisite to the extension of employment authorization. Concurrently, DHS eliminates the regulatory provisions that require adjudication of the Application for Employment Authorization (Form I-765 or EAD application) within 90 days of filing and that authorize interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.
To learn more about these rules or if you will have any other questions please call us at 202-496-1295, or 888-820-4430 (toll free),  or email us at info@adhikarilaw.com

Startup Visa (Proposed), Final Rule on International Entrepreneur

August 26, 2016. This proposed rule for Startup Visa / parole is part of Executive Action President Obama had announced in November 2014. USCIS, an agency under Department of Homeland Security, has announced that it is proposing a rule to encourage entrepreneurs throughout the world to develop their innovative ideas and create jobs in the U.S.
This proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation. Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:
  • Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
  • Whose startup was formed in the United States within the past three years; and
  • Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
    • Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
    • Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
    • Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.

Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entity in the United States. A subsequent request for re-parole (for up to three
additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation.

The notice of proposed rulemaking in the Federal Register invites public comment for 45 days, after which USCIS will address the comments received. The proposed rule does not take effect with the publication of the notice of proposed rulemaking. It will take effect on the date indicated in the final rule when a final rule is published in the Federal Register.

Immigration Law provisions of enacted omnibus appropriations bill which include fee increases for certain H-1B and L-1 petitions by certain petitioners

On December 18, 2015, the President signed into the law the omnibus appropriations bill for 2016. This Public Law 114-113, the Consolidated Appropriations Act of 2016, became effective from December 18, 2015

Some of the immigration-related issues include:

Business Immigration:

(These increased fees must be paid on initial petitions and extension petitions and these fees are authorized for ten years, running through September 30, 2025; and the funds generated by these fees will be split between the 9-11 programs and the Biometric Entry-Exit program.

These legal changes are complex and require a consultation with an experience immigration lawyer. If you have any questions, our attorneys are here to answer your questions!  We can be reached by phone at 888-82-4430 or by email at info@adhikarilaw.com. Contact us today for this and all other immigration-related issues!

USCIS Internally Transfers Casework from Vermont Service Center to California Service Center and Nebraska Service Center

USCIS recently began transferring certain casework from the Vermont Service Center (VSC) to the California Service Center (CSC) and Nebraska Service Center (NSC) to balance workloads. The CSC will now process Form I-539, Application to Extend/Change Nonimmigrant Status.

How You Will Be Affected If We Transfer Your Case

If USCIS transferred your case, USCIS will send you a transfer notice. Your original receipt number will not change, and the transfer will not delay the processing of your case except for the additional time needed to physically mail/transfer the file.

How to Track the Status of Your Case

You can check your case status at Case Status Online by entering your receipt number. You can also sign up to receive automatic case status updates by email.

If you do not receive a decision on your case within the published processing time, you may submit an inquiry using e-Request or by calling the National Customer Service Center (NCSC) at 800-375-5283 of USCIS.  If USCIS sent you any notice (such as a Request for Evidence), please read the notice carefully and follow the instructions provided.

If you move while your case is pending, you must inform USCIS of your address change. You may file a change of address on USCIS website or by calling the NCSC. It is important that you notify USCIS of any address change as soon as possible, so that you continue to receive notifications from USCIS.