Breaking News 01.05.2016

New Visa Waiver Program Restrictions for Persons with Middle East Travel History

On December 18, 2015, the President signed into law new restrictions regarding the Visa Waiver Program that appear to be effective immediately. Individuals of any nationality who have visited Iran, Iraq, Syria, or the Sudan at any time after March 1, 2011 are no longer eligible for the Visa Waiver Program and must obtain B1/B2 tourist visas as appropriate.

Individuals who must now obtain B1/B2 visas should plan to apply for their visas well in advance of any planned U.S. travel, as consulates may be experiences delays with the new requirements.

Don't Miss Out! H-1B Cap Filing Season Begins Soon

The next H-1B work visa filing season begins April 1, 2016 for petitions subject to the visa limitation of 78,200 new cases. There will most certainly be a lottery for the small number of H visas available, as there was last year. USCIS will permit filing during the first five business days of the month, that is, Friday, April 1 through Thursday, April 7.

It is vital for employers and their affected employees to get their paperwork to a qualified immigration attorney as soon as possible so that they don't miss this once-a-year chance for the H-1B.

Those not subject to the H-1B quota don't have to worry about filing during this period. This includes persons previously counted against the quota within the past six years, persons who work for institutions of higher education and affiliated nonprofits, persons who work for nonprofit research or government research organizations, and persons who work on the premises of a quota exempt employer for another entity. Certain physicians who came to the US for graduate medical training on J visas, are also not subject to the cap, once they receive a waiver of the two year home residence requirement.

DHS Requests More Time to Fix the STEM OPT Regulation

This past fall, a federal judge ruled that the Department of Homeland Security ("DHS") used improper procedures when it implemented its 2008 regulations that created optional practical training ("OPT") extensions for qualified students in science, technology, engineering or mathematics ("STEM") fields. The 2008 regulations also made H-1B cap-gap relief automatic. The judge gave DHS until February 12, 2016 to take proper procedures to implement the regulation correctly, at which time the judge would invalidate the old, improperly implemented rule.

DHS recently asked the federal judge to extend the February 12 deadline to May 10, 2016. DHS explained that it had received an unprecedented number of comments - approximately 50,000 - on the proposed rule and suggested that it would be unable to meet the February 12 deadline.

It is not yet clear whether the judge will extend the deadline. If she does, it is likely that DHS will be able to properly implement the regulation without any disruption to STEM students. If the judge refuses to extend the deadline, it is unclear whether students' STEM extensions would be temporarily disrupted. If DHS is unable to meet the deadline, it is possible the Department may have to consider options like returning any pending STEM OPT applications and requiring that applicants refile after the effective date of a final rule. It is unclear what other consequences might result.

Stay tuned for additional updates.

DHS Proposes Changes to Improve Retention and Portability of Certain Employment-based Immigration Applicants

DHS recently announced proposed regulatory changes to improve retention and portability of certain applicants for EB-1, EB-2, and EB-3 immigration categories as well as those in H-1B status. These proposed changed will not be final for a number of months and may be altered after public comment. Highlights of the proposed changes include:

  • Limited automatic revocation of I-140s: improve job portability for certain beneficiaries of approved I-140 employment-based immigrant visa petitions by limiting the grounds of automatic revocation of petition approval, such that immigrant visa petitions approved for 180 days or more generally would not be automatically revoked based solely on withdrawal by the petitioner or termination of the petitioner's business, as long as the I-140 was not revoked for fraud, material misrepresentation, an invalidated or revoked labor certification, or USCIS error;
  • Retention of priority dates: further enhance job portability for such beneficiaries by increasing their ability to retain their priority dates for use with subsequently approved employment-based immigrant visa petitions, generally as long as the I-140 was not revoked for fraud, material misrepresentation, a invalidated or revoked labor certification, or USCIS error;
  • NIV grace period: establishes a grace period of up to 60 days when employment ends for E-1, E-2, E-3, H-1B, H-1B1, L-1, or TN nonimmigrants (the grace period would not include employment authorization);
  • "Compelling circumstances" employment authorization: Allow an opportunity for beneficiaries of an approved I-140 to obtain employment authorization for a limited time by showing "compelling circumstances," if that beneficiary is subject to immigrant visa backlogs and has no other grounds for employment authorization;
  • Automatic extension of employment authorization for an interim period upon the timely filing of an application to renew such documents;
  • More flexible H-1B licensing rules: clarifies that DHS generally may approve an H-1B petition on behalf of an unlicensed worker if the worker (1) has filed a request for a license but cannot yet obtain that license because of procedural reasons or (2) will work in a State that allows such individuals to be employed in the occupation under the supervision of licensed senior or supervisory personnel;
  • Improved H-1B portability, extensions, and cap counting: ease the ability to extend H-1B status beyond six years where there is a pending lawful permanent residence application, improves H-1B portability rules, and alters the method by which H-1B workers are counted against the numerical cap or are found to be cap-exempt.

Stay tuned for additional updates following the public comment procedure.

Physicians: Conrad 30 Waiver Program Has Been Extended

Congress recently extended the Conrad 30 waiver program until at least September 30, 2016. The Conrad 30 Waiver program allows physicians who come to the US for graduate medical education in J-1 status, to apply for a waiver of the two year residence requirement upon completion of the J-1 exchange visitor program. This law has helped deliver many foreign physicians to medically underserved areas in the United States.

January Visa Bulletin Updates

The U.S. Department of State has released the January 2016 Visa Bulletin, which yielded modest incremental progress for final action dates in most categories. The most significant advance was for the EB-2 India category which moved up by another eight months, to Feb. 1, 2008.

U.S. Citizenship and Immigration Services is continuing to maintain its position that employment-based applicants may only use the "Final Action Dates" chart for employment-based adjustment of status cases and not the pre-registration "Dates for Filing" chart.

For more information, please click here.

Attorney Speaking Engagements

Ware|Immigration attorneys frequently present at regional and national conferences. They also have speaking engagements at various universities and corporations across the nation.

If you are interested in attending one of the presentations or inviting an attorney to speak at your business, please contact [email protected] to discuss possibilities.

Here are some of the upcoming engagements.

Ware|Immigration On the Web

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