USCIS TEMPORARILY SUSPENDS PREMIUM PROCESSING SERVICE FOR H-1B EXTENSIONS

USCIS announced today, May 19, 2015, that the agency will be temporarily suspending premium processing service for H-1B extensions beginning May 26, 2015 and extending until July 27, 2015 to allow them to adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations. For pending petitions filed prior to May 26th, USCIS will refund the premium processing fee if the case is not adjudicated within the 15-calendar-day period.

USCIS COMPLETES DATA ENTRY FOR H-1B CAP PETITIONS

Today, May 4, 2015, USCIS announced that it has completed data entry of all Fiscal Year 2016 H-1B cap-subject petitions that have been selected in the USCIS computer-generated lottery process. USCIS indicates that the agency will now begin returning all H-1B cap-subject petitions that were not selected in the lottery, but the time frame for returning these petitions remains uncertain.

As a reminder, USCIS received nearly 233,000 H-1B petitions during the filing period, with a total of 85,000 H-1B visas available, including the 65,000 general-category cap and the 20,000 master's cap.

NEW LEGISLATION COULD PROVIDE ADDITIONAL GREEN CARD OPTION FOR E-2 TREATY INVESTOR VISA HOLDERS

E-2 VISA IMPROVEMENT ACT OF 2015 - Treaty Investor Green Card?

Florida Congressman David Jolly is introducing a Bill into Congress that could have important positive effects on E-2 Treaty Investors Visa holders interested in pursuing permanent residence. 

Under current law, the E-2 Visa is what is known as a "nonimmigrant" visa, meaning that to remain eligible, an E-2 visa holder must maintain an intent to return abroad following the conclusion of their stay in the U.S.  Additionally, the E-2 investor visa does not always easily parlay into an EB-5 Investor Green Card, given the additional requirements of the EB-5 program to meet a minimum investment threshold of between $500,000 and $1 million in a new commercial enterprise and the requirement to create and/or sustain 10 U.S. jobs.  Thus, an E-2 visa holder who has invested a much smaller sum (typically around $100,000) and who do not meet the requisite job creation requirements, could not use their E-2 company as an EB-5 investment vehicle.

The new bill is expected to provide a new option to E-2 Treaty Investors and, thus, the entrepreneurs who frequently use this visa category to start companies in the United States.  More specifically, the bill would grant permanent residence to E-2 Treaty Investors who have resided in the U.S. for at least 10 years in E-2 status and whose businesses have created at least 2 full-time jobs during this period.  Children of Treaty Investor green card applicants would be permitted to remain in the U.S. as dependents on their parent's visas up until the age of 26 and could apply for employment authorization after turning 18.

While certainly a positive step for pro-entrepreneur immigration reform, it is important to note that existing law will remain in effect and the Treaty Investor Green Card would only become available if and when Congress passes the Bill and the President signs it into law.

H-1B Cap Filing Receipts Begin to Trickle In

Despite USCIS's prior statement that premium processing for cap-subject H-1B petitions would begin on April 27th, some practitioners and employers are beginning to receive receipt notices for cases filed under the U.S. Master's Cap, including some for cases filed without a request for premium processing service.

As previously noted, USCIS recently announced that it had received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2016. USCIS also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption or  "masters cap."

Reports indicate that USCIS received nearly 233,000 H-1B petitions during the filing period, which began April 1, including masters cap petitions. This marks an increase of about 35 percent from last year, placing the odds of selection at approximately 36 percent. USCIS uses a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 masters cap. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

USCIS continues to accept H-1B filings for individual and organizations who are exempt from the cap. 

IMMIGRATION UPDATES: H-1B CAP LOTTERY RUN and EB-5 CHINA RETROGRESSION IN MAY

USCIS RUNS H-1B LOTTERY & RELEASES STATISTICS ON H-1B CAP FOR FISCAL YEAR 2016

In a statement released today, USCIS announced that it has received enough H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2016. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption or  "masters cap."   

USCIS received nearly 233,000 H-1B petitions during the filing period, which began April 1, including masters cap petitions. This marks an increase of about 35 percent from last year, placing the odds of selection at approximately 36 percent. Today, April 13, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 masters cap. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

Update: USCIS previously noted that it would begin premium processing for H-1B cap cases no later than May 11, 2015. On April 14, 2015, USCIS released a statement indicating the agency will begin premium processing for cap-subject H-1B petitions requesting premium processing on April 27, 2015. 

 

STATE DEPARTMENT VISA BULLETIN FOR MAY 2015 INDICATES RETROGRESSION FOR EB-5 CHINA

Today, the State Department released its May 2015 Visa Bulletin in which it announced the long-anticipated retrogression of EB-5 China.  For more information about the impacts of EB-5 China retrogression on investors and regional centers, D&S recommends reading the 2014-2015 Edition of ILW.com's The EB-5 Book, with a chapter co-authored by D&S Partner, Sarah Schroeder, entitled "EB-5 China Retrogression: Considerations for Investors and Regional Centers".

THE TRUTH ABOUT HIGH-SKILLED IMMIGRATION

Immigration Reform Needed to Save Nacirema: Why Senator Grassley’s Comments to the Senate Judiciary Committee Represent a Major Step Backward for Informed Discourse on High-Skilled Immigration

INTRODUCTION

In June 1956, Anthropologist Horace Mitchell Miner published an article titled “Body Ritual Among the Nacirema." In March 2015, Senator Chuck Grassley gave a statement to the Senate Judiciary Committee titled “Immigration Reforms Needed to Protect Skilled American Workers.” In their respective pieces, both Miner and Grassley deliberately describe facts in a way that makes something productive and effective sound absurd and even abhorrent. The difference is one is funny and thought provoking while the other is misleading and counterfactual. 

In “Body Ritual Among the Nacirema" (Nacirema is American spelled backwards), Miner describes common habits like brushing one’s teeth in ways that makes the act seem less like a practice of most hygienic individuals and more like a bizarre cultural ritual of a far off civilization.  In doing so Miner attempts to satirize anthropological studies on other cultures. He writes: “The daily body ritual performed by everyone includes a mouth-rite . . . . [T]his rite involves a practice which strikes the uninitiated stranger as revolting. It was reported to me that the ritual consists of inserting a small bundle of hog hairs into the mouth, along with certain magical powders, and then moving the bundle in a highly formalized series of gestures.”

In “Immigration Reforms Needed to Protect Skilled American Workers,” Grassley conflates issues, cherry picks facts and relies on inaccurate studies and unrepresentative anecdotes to make the legal employment of foreign workers, which brings high-skilled talent to U.S. companies and attracts top entrepreneurs and innovators, seem like a unregulated scheme intended to rip jobs from the hands of qualified American workers. Grassley states: “The lives of U.S. workers and families are on the line.  Will we do everything we can to protect future generations who desperately want to work in the high skilled sector?   Or, will we simply ignore the plight of those who have lost their jobs and had to train their foreign replacements?”  Such sensationalism and misrepresentation of the facts surrounding legal employment based immigration-a critical driver of the U.S. economy and job creation- erodes educated and civil dialogue on these important issues.

Our U.S. immigration system is far from perfect and smart reform that reduces fraud, promotes national security, and attracts the best and brightest global talent, is needed and welcome.  Rather than engaging in reasoned and educated dialogue that considers the numerous complexities of the immigration debate, Grassley presents a myopic view of the issues in an effort to instill a sense of fear, stifling progress on meaningful reform. We hope this article will help to flesh out the facts surrounding employment-based immigration of high skilled workers and leave readers with a more complete understanding of this complex issue.

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USCIS RELEASES DRAFT L-1B POLICY MEMORANDUM

WHAT’S HAPPENING

USCIS has released a draft of its L-1B policy memorandum which seeks to clarify eligibility for the L-1B “Specialized Knowledge” nonimmigrant visa, an area of USCIS adjudications that has been plagued by inconsistent adjudication, high denial rates, and a lack of clarity regarding the definition of “Specialized Knowledge.”

WHO THIS IMPACTS

With the L-1B denial rate reaching 35%, this long-awaited policy memo seeks to provide “consolidated and authoritative guidance on the L-1B program…” with the hope that it will clarify how L-1B petitioners may demonstrate that an employee qualifies for L-1B classification.

The memo affirms that a beneficiary seeking L-1B classification should possess either:

(1) Special Knowledge, which is knowledge of the petitioning employer’s product, service, research, equipment, techniques, management, or other interests and its applications in international markets that is demonstrably distinct or uncommon in comparison to that generally found in the particular industry or within the petitioning employer; or

(2) Advanced Knowledge, which is knowledge or expertise in the organization’s specific processes and procedures that is not commonly found in the relevant industry and is greatly developed or further along in progress, complexity and understanding than that generally found within the petitioning employer.

The memo clarifies that the standard of review adjudicators should apply when reviewing L-1B petitions is whether the petitioner meets each eligibility requirement by a “preponderance of the evidence,” and directs officers not to apply higher standards of review such as “beyond a reasonable doubt” or by “clear and convincing evidence.” The memo also confirms that the specialized knowledge need not be proprietary nor narrowly held within the petitioning organization in order for a position to qualify.

Further, the memo confirms that L-1B employees are not prohibited from working off-site, provided the employer/petitioner maintains the principal control and supervision of the employee.

THINGS TO KEEP IN MIND

Although the memo clarifies a number of points often used by USCIS adjudicators when issuing challenges and denials, it also gives officers the authority to consider the “spectrum of employees in the U.S. operations who possess the requisite specialized knowledge” and consider the beneficiary’s wage as a factor when determining the organization’s need to transfer the beneficiary to the United States. This inherent subjectivity could continue to result in inconsistent adjudications in this visa classification.

USCIS has issued the draft memorandum for public review and feedback and will be accepting comments on the draft through May 8, 2015. The memorandum is scheduled for final publication on August 31, 2015.