By Jason Burritt and Jake Campbell
Seyfarth Synopsis: The Office of Information and Regulatory Affairs within the Office of Management and Budget announced that the long-pending rule to rescind work authorization for certain H-4 holders has been withdrawn. The withdrawal means that H-4 holders whose spouses have reached certain
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By Tieranny L. Cutler and Jason E. Burritt
Seyfarth Synopsis: The President’s order, which reinstates and expands travel restrictions imposed by the prior administration, will continue to have a significant impact on international travel for foreign nationals, as well as impact the transfer of global talent by U.S. corporations from
Continue Reading Previous Travel Restrictions Reinstated and Expanded As a Result of COVID-19
Seyfarth Synopsis: On March 20, 2020, the U.S. Department of Labor’s (“DOL”) Office of Foreign Labor Certification (“OFLC”) issued Frequently Asked Questions in response to the COVID-19 global pandemic, providing guidance and extending certain filing, notice, and response deadlines for employers of foreign nationals.
Highlights
Effective today, March 20, 2020, USCIS will not accept any new requests for premium processing for all Form I-129 and I-140 petitions. USCIS will process any petition with a previously accepted Form I-907, Request for Premium Processing Service. However, USCIS also announced that the agency would refund the $1,440 filing fee if the agency does not take action on a petition previously filed via premium processing within the 15-calendar-day period, thus leaving open the possibility that even those already in queue for adjudication may not receive premium treatment.
Please find below a list of frequently asked questions with our insights.
1. What is the effective date of the suspension?
The premium processing suspension is effective on March 20, 2020.
2. How long will the suspension last?
USCIS states that the suspension will last until further notice, and that the agency will notify the public with a confirmed date for resuming premium processing service. In the past, premium processing suspensions have lasted up to six (6) months.
3. Does the suspension apply only to H-1Bs or other visa categories?
The suspension includes petitions filed for the following nonimmigrant categories: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ (blanket), O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.
The suspension also includes all types of I-140 petitions, including EB-1, EB-2 and EB-3.
4. How does this affect the H-1B cap lottery?
USCIS indicates that it will still notify registrants selected in the lottery by March 31. However, in the absence of premium processing, petitioners will likely not receive decisions on petitions filed on behalf of selected registrants until late May at the earliest, assuming a filing in early April. In addition, companies that filed H-1B petitions with premium processing were able to easily communicate with USCIS representatives regarding case status updates and corrections to errors on the approval notice. The suspension of premium processing will prevent companies from leveraging this benefit.
5. I am in F-1 status, my Optional Practical Training (OPT) will expire before October 1st, and I require H-1B cap gap to extend my work authorization through October 1st. What happens if I do not receive a decision on my H-1B cap case by October 1st?
If you will rely on H-1B cap gap and USCIS has not issued a decision on your H-1B petition as of October 1st, you may continue to remain in the U.S. until USCIS issues a decision. However, you will not possess work authorization from October 1st until USCIS ultimately approves the H-1B petition. If USCIS lifts the premium processing suspension early, which may occur prior to the six-month mark, your employer will have the option of submitting a premium processing request to accelerate processing of your H-1B petition.
6. Can a premium processing request be submitted for a pending I-129 or I-140 petition once the suspension is lifted?
Yes, once the suspension is lifted, a premium processing request may be submitted at any time.
7. I am currently in a nonimmigrant status (e.g. H-1B, L-1, TN, E-3) status and my status will expire this summer/fall. My employer will file an extension on my behalf. How will the suspension of premium processing affect my work authorization and ability to travel internationally?
If you are in the U.S. in a valid nonimmigrant status and your company seeks to extend your status, you will remain eligible for an up to 240-day extension of your status beyond the date of your I-94 admission record. Therefore, the premium processing suspension should not affect your continued work authorization. However, if you have international travel plans after the expiration of your current status and/or your visa stamp is expired, you will need your new approval notice to apply for a visa stamp before returning to the U.S. In this case, the premium processing suspension may require you to delay your travel plans or remain abroad until USCIS approves your petition and you secure a new visa stamp.
8. Are there any other issues that may come up?
Yes, in some states, you may have an issue renewing your driver’s license. Some states will allow you to extend your license by presenting evidence of a timely filed extension while other states require evidence confirming that your nonimmigrant status has been approved. You will need to check with your local motor vehicle department to explore this issue.
Seyfarth Synopsis: USCIS completes the lottery process and received 190,098 H-1B cap petitions.
On April 12, 2018, United States Citizenship and Immigration Services (USCIS) announced that it received 190,098 H-1B petitions to meet both the Master’s and regular H-1B quotas (or “caps”) for Fiscal Year 2019, which begins on October
Continue Reading USCIS Completes the H-1B Cap Random Selection Process for FY 2019
Seyfarth Synopsis: If Congress cannot resolve FY2018 funding issues by December 8, 2017, resulting in a federal government shutdown, it will have a ripple effect on employers, both large and small, with an impact on several agencies involved in the processing of immigration petitions.
U.S. Citizenship and Immigration Services (USCIS)
Continue Reading Possible Government Shutdown: Immigration Consequences for Employers and their Foreign National Employees
Seyfarth Synopsis: On September 18, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that effective immediately it would resume premium processing for H-1B petitions filed subject to the Fiscal Year (FY) 2018 cap.
USCIS temporarily suspended premium processing of all H-1B petitions on April 1, 2017 with the stated
Continue Reading Premium Processing Resumes for Fiscal Year 2018 H-1B Cap Petitions
Seyfarth Synopsis: The Department of Homeland Security (DHS) to terminate the Deferred Action for Childhood Arrivals (DACA) program.
“Congress, get ready to do your job – DACA,” tweets President Trump on Tuesday morning.
End to DACA
The President’s tweet confirmed Sunday’s reports that the Trump administration will move forward with
Continue Reading Dream Over? Trump Administration Announces Plans to Phase Out DACA
Immigration, Refugees and Citizenship Canada (“IRCC”) has launched a Global Skills Strategy to facilitate the entry of skilled workers to Canada, which is effective immediately. The Strategy focuses on a two-week processing standard for certain Labour Market Impact Assessment (“LMIA”)-exempt work permit applications and two brand new work permit exemptions, as part of Canada’s Global Skills Strategy.
Two-Week Work Permit Processing Standard
Certain LMIA-exempt work permit applications made outside of Canada at a Canadian Consulate are now eligible for expedited two-week processing, including LMIA-exempt work permit applications for employees performing work at Skill Level 0 or A of the National Occupational Classification (“NOC”). Therefore, NAFTA Professionals and Intra-company Transferees in high-skilled occupations, such as IT professionals, Management Consultants and senior managers, can benefit from this new processing standard. Historically, and for those not eligible for the new two-week standard, it would typically take about ten weeks at the Consulate General of Canada in New York.
In addition, corresponding applications for any accompanying family members, including open work permits for spouses and study permits for dependents, are eligible for two-week processing. Applications made inside Canada are not eligible for this new, expedited two-week processing.
Please note there is no additional premium processing fee for applications eligible for expedited two-week processing.
Single-Entry Short-Term Work Permit Exemption for High Skilled Workers
Workers with a job offer for a position under NOC Skill Level 0 or A are now eligible for a work permit exemption of up to 15 consecutive calendar days every six (6) months, or up to 30 consecutive calendar days every 12 months. This means that workers who qualify for this exemption may work in Canada within these timeframes without first obtaining a work permit. Individuals must apply for this exemption from outside of Canada or at a port of entry. This exemption is not available for applicants submitting applications from within Canada.Continue Reading Canada Launches Global Skills Strategy to Fast-Track Short-Term Entry of High-Skilled Workers
As part of the Trump Administration’s extreme vetting efforts, certain visa applicants will now be required to complete a rigorous supplemental questionnaire prior to visa issuance. The information requested in the new, supplemental questionnaire is extensive, and includes the applicant’s full travel history for the past 15 years, including locations visited, dates, and source of funds for the visit; all passport numbers; names and dates of birth of all siblings, children, and spouses/partners; complete address and dates of residence for the past 15 years; employment history for the past 15 years; and all social media handles, phone numbers and email addresses for the past five years.
The supplemental questionnaire will not be required of all visa applicants. As part of the visa application interview and screening process, Visa Officers will decide when the individual visa applicant’s background warrants additional security checks. Previous travel by the visa applicant to areas controlled by terrorist groups is expected to make it more likely that the supplemental questionnaire will be requested. The U.S. Department of State estimates that approximately 65,000 people (less than 1% of 13 million visa applicants worldwide) may be requested to complete the supplemental questionnaire each year.Continue Reading Extreme Vetting Measures To Include Questionnaires Asking for Detailed Travel History and Social Media Information