H-1B visa

by Gail Berg Gail Berg No Comments

Update to Presidential Proclamation Barring Entry of Certain H, L, & J Visa Holders

On June 30, 2020 Presidential Proclamation 10052 was amended to clarify that individuals (and their dependents)  outside of the United States are suspended from seeking entry as an H-1B, H-2B, J-1, or L-1, unless they had a valid  H-1B, H-2B, J-1, or L-1 nonimmigrant visa on June 24, 2020 or are eligible for an exemption.  For example, an individual outside the U.S. with a valid B-1 visa on the day of the proclamation would be barred from receiving an H-1B, H-2B, J-1, or L-1 visa until the end of the year. 

by Gail Berg Gail Berg No Comments

June 22, 2020 Presidential Proclamation does not Bar Entry of Canadians in H, L, or J Status

On June 24, 2020, DHS confirmed that the H, L, and J entry ban announced on June 22, 2020 does not apply to Canadian citizens.  However, the U.S./Canadian border restrictions remain in effect until July 22, 2020 and the U.S. Consular Offices in Canada remain closed.  At this time, there has been no announcement regarding the reopening of routine visa services at the U.S. Consular Offices in Canada.  Nor do we know whether the current U.S./Canadian border restrictions will be extended into August. 

by Gail Berg Gail Berg No Comments

FAQ REGARDING PRESIDENTIAL PROCLAMATION ON IMMIGRATION, ISSUED JUNE 22, 2020

The information in this FAQ is general in nature and does constitute legal advice.

GENERAL

When does this proclamation take effect? June 24, 2020. Except the portion extending the suspension of immigrant visas which took effect June 22, 2020.

Till when is this order in effect? Until December 31, 2020. It is also eligible for extension and is to be reviewed for changes and/or extension every 30 days.

To whom does this order apply? It applies to non-permanent resident foreigners who are outside the U.S. at the time it takes effect.

NON-IMMIGRANT APPLICANTS (THOSE SEEKING STATUS SUCH AS H-1B, L-1, TN, J-1, ETC.)

How does this order affect foreigners seeking to come to the U.S. to work temporarily? The order bars entry into the U.S. of those seeking to come to work. in H-1B, H-2B, L-1A, and L-1B status unless they already had a visa of the corresponding type at the time the order took effect, June 24, 2020. It also bars entry of J-1s seeking to work in the U.S. as an intern, trainee, au pair, teacher, camp counselor or in a summer work travel program. It also bars the entry of family members of those barred who would be seeking to enter in H-4, L-2 or J-2 status.

Does it prohibit the issuance of a visa to such individuals or just the entry into the U.S.? The order specifically states that it bars entry of such individuals who did not have a visa prior to the time the order took effect. However, the order also states that it will be a consular officer’s decision whether a visa applicant for meets an exception and is therefore eligible for a visa. Reading these statements together, we believe the order bars the issuance of visas to individuals in the specified categories of H-1B, H-2B, L- 1, H-4, L-2, and certain J-1 and J-2. Additionally, it is important to note that at the time of preparing this FAQ, regular visa services have been suspended at U.S. consulates throughout the world which are open only for emergency situations, and a foreign worker needing to get a visa is not an emergency unless that worker meets one of the exceptions (e.g., medical researcher working in U.S. to combat COVIID-19). As such, though the order does not expressly say that it prohibits issuing specific visas, as a practical matter, such visas will not be issued.

FOREIGN WORKERS CURRENTLY IN THE U.S.

I am in the U.S. lawfully and need to change my status to H-1B, H-2B, or L-1; or I hold such status and need to extend it. Does this order affect that change or extension of status? No. Individuals lawfully in the U.S. who are eligible to change their status to H-1B, H-2B, or L-1, or the dependent statuses of H-4 or L-2, are not affected by this order and may continue with the process to change or extend status in the U.S.

I am lawfully in the U.S. in H-1B, L-1, H-2B, H-4, or L-2 status, but do not have a valid visa in my passport. Can I leave the U.S., obtain a visa and reenter the U.S.? The language of the order is conflicting. It says it only applies to those who are outside of the U.S. on the day it took effect, but there is sufficient language in it for us to believe that it bars all individuals from obtaining visas in these categories, and therefore, reentering the U.S. Additionally, as noted above, regular visa services are currently suspended throughout the world. Therefore, any individuals who hold the specified statuses, should carefully consider if a trip outside the U.S. is absolutely necessary, because it is highly likely that such individuals will not be able to return before year end, and possibly longer. Additionally, we do not have a way to help those who are stuck outside the U.S. return to the U.S.

I have applied or am eligible to apply for an employment authorization document (EAD). Does this order affect my EAD application or eligibility? No.

I’m a Canadian in the U.S. in L-1/L-2 status. Since I do not need a visa to reenter the U.S., am I safe to leave the U.S. and reenter? Sadly, we do not know. We are awaiting clarification on this point since the order does not expressly address it. As an individual who already holds L-1 or L-2 status and is in the U.S., we believe you should be able to leave and re-enter the U.S., assuming there is no other travel ban in place that effects your entry into the U.S. However, we caution all who are in this situation that they leave the U.S. at the risk of not being able to return until after the end of the year.

INDIVIDUALS OUTSIDE THE U.S. WHO ARE NOT SPECIFICALLY MENTIONED IN THE ORDER

I am a Canadian seeking to enter the U.S. in H, L or J status, will I be able to enter? The USCBP has clarified that the order does not apply to Canadians entering the U.S. in the restricted categories. As such, once travel restrictions at the U.S. – Canada border due to the pandemic are lifted, you should be able to enter the U.S. We recommend entering at the U.S. – Canada border as USCBP officers elsewhere may not be trained on this issue.

Can individuals outside the U.S. enter in other non-immigrant statuses to work in the U.S.? The order does not bar entry for those seeking to enter in other statuses, including E-1, E-2, E-3, O-1, R- 1 and TN. However, those seeking to enter another status, except Canadians seeking TN or O-1, must first obtain a visa to travel to the U.S. Since regular visa services are currently suspended at consulates across the world, it would be difficult for individuals to obtain a visa in one of those statuses. At this point, we believe that Canadians who are eligible to enter in TN or O-1 status may do so.

PERMANENT RESIDENCE / GREEN CARDS / IMMIGRANT VISAS

How does this order affect those applying permanent residence? It extends the order issued April 22, 2020 with respect to those seeking to come to the U.S. as immigrants, until the end of 2020.

Are all individuals applying for green cards or wanting to apply for green cards affected? No. The bar on immigrants only applies to those seeking immigrant visas at a U.S. consulate abroad. It does not apply to individuals in the U.S. who apply to adjust status to permanent residence.

I am in the U.S. and applying for permanent residence or about to apply.  Can my application move forward? Yes. As long as your last step of permanent residence is applying to adjust status from your current non-immigrant status (H-1B, H-4, E-3, etc.) to that of a lawful permanent resident (green card holder / immigrant), you are eligible to continue your application (I-485).

I am in the U.S. applying for permanent residence but my spouse (and child) is outside the U.S. and will need an immigrant visa. Will my spouse (and child) be able to continue that process? At this point in time, no. At least until the end of 2020, issuance of immigrant visas is suspended unless the individual meets one of the exceptions.

I am in the process or about to start the process to apply for permanent residence. How can I speed up my permanent residence application? Unfortunately, permanent residence generally cannot be sped up. Some I-140 petitions, which is Step 1 or 2 depending on your application pathway, can be filed with premium processing but none of the other steps are eligible for premium processing.

I have heard that some colleagues who were getting close to having their applications for permanent residence adjudicated have had them held by USCIS because USCIS is not issuing green cards due to the ban. Is this true? USCIS has, in some cases, held up the issuance of green cards because it has interpreted the order to mean that green cards cannot be issued. This is not our interpretation of the order and the American Immigration Lawyers Association is working with USCIS to resolve this issue. Please note that even subsequent to the April 22 order, suspending the issuance of immigrant visas, that we have had applications for permanent residence approved and have had clients receive their green cards. As such, there is confusion in this area, and we hope it is resolved soon.

EXCEPTIONS

What are the exceptions, or who would be eligible to enter the U.S. in one of the barred non- immigrant categories such as H-1B? Only those coming to work in the U.S. in an area of the national interest. These include those coming to work in roles to combat COVID-19, roles which are essential to economic recovery or roles critical to national security. The order is silent regarding family members of such individuals. Children who would turn 21 and thereby lose visa eligibility are also excepted.

Who is excepted from the ban on issuance of immigrant visas? The list is long but exceptions are primarily for those related to U.S. citizens, permanent residents, or members of the armed services, or those seeking a visa to enter the U.S. to work in an area in the country’s national interest.

MORE INFORMATION

Where can I get further updates? This is the latest information as of June 24, 2020. We will post new information to our website www.cyavisalaw.com.

by Gail Berg Gail Berg No Comments

An update regarding today’s executive order re immigration

As you are likely aware, the administration just issued a new executive order restricting entry of H-1B/H-2B, L, and J visa (intern, trainee, teacher, camp counselor, au pair, or summer work travel program) holders and their dependents to the U.S. until the end of the year. We are analyzing the order and will provide more information in the next few days. Our preliminary review of the order indicates that the ban on entry is not all encompassing and there will be a number of exemptions to the ban. We will need to wait for further guidance from the Department of State and the Department of Homeland Security on the exemptions from the ban. Notably, the ban only applies to those who are outside the U.S. on June 22, 2020, who do not already have a valid non-immigrant visa.

by SCwpadmin SCwpadmin 7 Comments

USCIS Reaches the H-1B Cap for Fiscal Year 2016

The H-1B lottery cap and the advanced degree Master’s cap have been reached for fiscal year 2016.  USCIS will now apply a random, lottery process to select the 65,000 H-1B cap-subject petitions that will be issued H-1B visas.  First, USCIS will randomly choose petitions for the advanced degree Master’s cap exemption to the H-1B cap.  Once these 20,000 petitions are selected, all unselected advanced degree Master’s cap petitions will be added to the general lottery and 65,000 petitions will be selected.  USCIS has not announced when it will perform the lottery process.  H-1B petitions that are cap-exempt may still be submitted to USCIS for consideration.

 

 

by SCwpadmin SCwpadmin 8 Comments

H-1B Visa Cap Reached

Release Date: April 10, 2014

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) announced on April 7 that it has received a sufficient number of H-1B petitions to reach the statutory cap of 65,000 visas for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the advanced degree exemption.

USCIS received about 172,500 H-1B petitions during the filing period which began April 1, including petitions filed for the advanced degree exemption. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced degree exemption. For cap-subject petitions not randomly selected, USCIS will reject and return the petition with filing fees, unless it is found to be a duplicate filing.

The agency conducted the selection process for the advanced degree exemption first. All advanced degree petitions not selected then became part of the random selection process for the 65,000 limit. On March 25, USCIS announced that they would begin premium processing for H-1B cap cases no later than April 28.  For more information on premium processing for FY 2015 cap-subject petitions.

by SCwpadmin SCwpadmin 13 Comments

Immigration Lottery Hurting STEM Fields

U.S. immigration policy, especially the quota on H-1B visas, is preventing IT, biotechnology, and engineering companies from hiring the best and brightest professionals even in the face of increasing shortages of qualified workers in the science, technology, engineering, and math (STEM) fields.  According to reports from many sources, there are an ever increasing number of new STEM jobs being created in the U.S. and the competition to fill these jobs is fierce.  Many companies, particularly in the software and mining industries, are having an increasingly difficult time filling open STEM positions.

Nissa Szabo, Industry Affairs Manager of the Colorado Technology Association is well aware of this problem, “In Denver the unemployment rate in the IT and high tech sectors is less than 1%. A lack of available talent poses a major challenge to our members in terms of growing their businesses.”

Many of the news reports on this subject do not make the connection between the critical shortages in STEM positions and U.S. immigration policy.  It is estimated that approximately 50% of individuals pursuing advanced degrees at American universities are foreign students.  Accordingly, half of the available talent being turned out by U.S. educational institutions will need work authorization, usually H-1B visas, to fill open STEM positions.  Unfortunately, U.S. immigration law only allows for 85,000 H-1B visas each year.  During recessionary times, these 85,000 visas would last for six to eight months of a given fiscal year.  Last year, by contrast, on the first week that H-1B visas were available USCIS received almost twice the number of applicants as available visas, and, therefore, established a computerized lottery for determining which applications would receive increasingly valuable H-1B “numbers.”  As a result, approximately half of the applicants who qualified for H-1B status were turned away and many of these deserving candidates had no other option for obtaining work authorization. Given the continuing economic recovery, it is quite possible that USCIS could receive a higher number of petitions when it starts accepting new H-1B applications on April 1, 2014 for the next fiscal year.

As immigration lawyers, we therefore must advise our corporate clients that, notwithstanding the fact that they have engaged in a long and expensive recruitment effort and have found the perfect candidate,  they will have a 50% chance, or less of actually being able to employ their candidate in H-1B status.  In many cases, the individual has already started working for the company as part of their student visa practical training and are already making sizeable contributions.  Should the employer lose the H-1B lottery, it will need to terminate the productive employee. Some commentators describe the U.S. employment-based immigration system as the last bastion of Soviet-style economic planning where the government tells companies who they can and cannot hire.

Unfortunately, the push for comprehensive immigration reform has stalled (hopefully not died) in the U.S. House of Representatives. The bill passed by the Senate, if it became law, would almost double the number of H-1B visas available to American employers. In addition, the bill provides that H-1B numbers could be increased further based on changing economic conditions. The Senate bill also includes provisions to protect against the abusive or fraudulent use of H-1B visas. These provisions represent a reasonable compromise between many different stakeholders and would make great strides in addressing the problems described in this article. Ms. Szabo of CTA agrees: “comprehensive immigration reform would be a major piece in solving the talent dilemma facing CTA’s members.”

At this critical point in time, it is important for attorneys to urge their corporate clients to “weigh in” on this important issue so that comprehensive immigration reform can move forward, more H-1B visas can be made available, and U.S. companies can have the freedom to select and employ the professionals of their choice.

This article by Senior Partner, Ken Stern,  was originally published on January 6, 2014 in Vol. 12,  No.1 of Law Week Colorado.

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