United States: Recent Developments In Business Immigration Law

USCIS to suspend H-1B Premium Processing next month

U.S. Citizenship and Immigration Services (USCIS) has announced that it will suspend Premium Processing of all H-1B filings starting on April 3, 2017. This includes all Fiscal Year 2018 H-1B cap filings, as well as H-1B change of employer, H-1B extension and H-1B amendment filings. The suspension means that any H-1B cases received by USCIS on or after April 3, 2017, will not be eligible for 15-day processing until the Premium Processing suspension is lifted. USCIS has advised that the suspension of the H-1B Premium Processing Program may last for up to six months. Premium Processing is expected to remain available for other Premium Processing eligible nonimmigrant petitions including, L-1, O-1 and TN petitions, and for eligible I-140 petitions.

The H-1B Premium Processing suspension may adversely impact F-1 students who are filing to change status to H-1B and whose optional practical training (OPT) will terminate between April 3 and Oct. 1 (a period known as the "cap gap"). Normally, the F-1 beneficiary of an H-1B cap petition whose OPT is valid through at least April 1 will have the Designated School Official (DSO) issue a preliminary cap gap I-20 showing an OPT extension through June 1. In order to have OPT extended past June 1, the beneficiary must present to the DSO a receipt notice from USCIS confirming that the H-1B petition was selected in the lottery. If, as a result of the Premium Processing suspension, receipt notices are not issued until after June 1, it is unclear whether the cap gap protection will continue until the receipt notice is received. We will share any information we learn on this topic once it is available. 

The Premium Processing suspension may also delay a foreign national's ability to travel internationally between April 3 and the approval of the H-1B cap petition, as travel while a change of status is pending and before the petition is approved will cause it to be deemed abandoned.

We will work with you to identify emergency non-cap H-1B filing needs so that they can be submitted via Premium Processing before April 3. As a reminder, H-1B extensions can be filed no earlier than six months before the expiration of the beneficiary's current period of stay. However, keep in mind that H-1B employees with a timely filed extension of stay benefit from up to 240 days of additional work authorization beyond their current expiration date while their extension remains pending.

Revised executive order suspends visa issuance for nationals of six countries

Earlier today, President Donald Trump signed a revised executive order (EO) suspending the issuance of visas to nationals of six countries (Iran, Libya, Somalia, Sudan, Syria and Yemen) for a 90-day period. The EO states that the 90-day suspension will allow for the review and establishment of standards to prevent "terrorist or criminal infiltration by foreign nationals." The EO does not apply to U.S. permanent residents or dual nationals, nor does it apply to individuals from one of these six countries who hold a valid visa for travel to the U.S. as of the March 16, 2017, effective date of the EO. Furthermore, the U.S. Refugee Admissions Program will be suspended for 120 days to allow for a review of refugee screening procedures. Finally, the EO calls for the Department of State to "restrict" eligibility for the Visa Interview Waiver Program (the program allowing visa applicants who satisfy certain eligibility criteria to skip the interview process when applying for a visa).  

Today's EO, which replaces the Jan. 27, 2017, EO restricting travel, is much more limited in scope in that it now clearly does not apply to U.S. permanent residents or dual nationals of one of the six listed countries, does not purport to cancel or nullify visas already issued to nationals of one of these countries and removes Iraqi nationals from the list. Nevertheless, we will closely monitor the implementation of this EO and provide additional updates as they become available. 

Bipartisan H-1B and L-1 bill introduced in Congress

Last week, a bipartisan group of House representatives unveiled legislation ostensibly designed to cut down on H-1B and L-1 fraud and abuse. The bill, entitled the H-1B and L-1 Visa Reform Act of 2017 and introduced by Reps. Bill Pascrell Jr. (D-N.J.), Dave Brat (R-Va.), Ro Khanna (D-Calif.) and Paul Gosar (R-Ariz.), would require employers to make a good-faith effort to recruit and hire American workers before hiring H-1 and L-1 workers. The bill would also modify existing H-1B wage requirements and would grant the U.S. departments of Labor and Homeland Security more authority to investigate fraud and abuse in the two visa categories. Furthermore, the bill would create a new H-1B visa allocation system prioritizing workers who have earned advanced degrees in science, technology, engineering or mathematics from U.S. schools. The bill is a companion to a Senate bill introduced earlier this year by Sens. Chuck Grassley (R-Iowa), and Dick Durbin (D-Ill.). 

We will monitor the progress of this proposed legislation and will provide updates as they become available.