Posts Tagged ‘EAD’

Cap Gap Work Authorization Ends On October 1st for H-1B Applicants

Saturday, September 29th, 2018 by W. Scott Railton

USCIS sent out a reminder today that students in F-1 status, waiting on their H-1B adjudications, are no longer permitted to work on October 1st based on the cap gap rules.  Employers need to be alert to this as well, due to work authorization rules.  Working without authorization can risk accrual of unlawful presence, which is another can of worms. This is s yet another unfortunate consequence of the agency’s delays in adjudicating petitions this year.

Here is the alert:

F-1 students who have an H-1B petition that remains pending on Oct. 1, 2018, risk accruing unlawful presence if they continue to work on or after Oct. 1 (unless otherwise authorized to continue employment), as their “cap-gap” work authorization is only valid through Sept. 30. Due to increased demand for immigration benefits, resulting in higher caseloads as well as a significant surge in premium processing requests, USCIS may not be able to adjudicate H-1B change of status petitions for all F-1 students by Oct. 1.

USCIS regulations allow an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on Oct. 1, to have his or her F-1 status and any current employment authorization extended through Sept. 30. This is referred to as filling the “cap-gap”, meaning the regulations provide a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur. The “cap-gap” period starts when an F-1 student’s status and work authorization expire, and they are extended through Sept. 30, with Oct. 1 being the requested start date of their H-1B employment, unless otherwise terminated or the H-1B petition is rejected or denied prior to Oct. 1.

While the temporary suspension of premium processing of certain types of H-1B petitions has allowed USCIS to allocate additional resources to prioritize the adjudication of these cap-gap cases, if a cap-gap H-1B petition remains pending on or after Oct. 1, the F-1 student is no longer authorized to work under the cap-gap regulations. However, the F-1 student generally may remain in the United States while the change of status petition is pending without accruing unlawful presence, provided they do not work without authorization. If an F-1 student with a pending change of status petition has work authorization (such as an I-765 with valid dates) that extends past Sept. 30, they may continue to work as authorized.

USCIS is committed to adjudicating all petitions, applications, and requests fairly and efficiently on a case-by-case basis to determine if they meet all standards required under applicable laws, regulations, and policies.

Tags: , , , ,
Posted in General, Scott Railton |

New Rules Restricting H-1Bs and H-4 Work Authorization May Be Coming Soon

Friday, December 22nd, 2017 by W. Scott Railton

The Office of Management and Budget recently published its Agency Rule List for Department of Homeland Security for Fall 2017. The list signals upcoming changes to the H-1B and H-4 categories. Also listed are rules concerning ESTA at land port of entries and increased collection of biometrics on entries and exits.

Specifically, the Department of Homeland Security anticipates that it will remove regulations which allow certain H-4 spouses to have work authorization. We don’t know if this will come about, but it is consistent with the Administration’s approach to restricting legal immigration. For this to happen, the Department of Homeland Security will publish a rule in the Federal Register, and receive public comment on the removal of the rule. Subsequently, it will propose final action. In all likelihood, there will not be a revocation of current work authorizations, but at some point affected persons will be unable to apply to renew. It is possible that in the interim legislation will be passed affecting this proposal. It is also possible the Administration may refrain from publishing the rule, though this seems unlikely. It is likely that there will be litigation involving this matter, which could delay things further.

The list also includes notice of the intent of the Department of Homeland Security’s to revise the definition of a specialty occupation, which will affect H-1Bs, and presumably H-1B1s, and E-3s. The proposal says that the agency will focus the process on “obtaining the best and the brightest foreign nationals via the H-1B program.” The notice states that the agency will revise the definition of employment and the employer-employee relationship, and will look at measures regarding compensation to H-1B workers.

The Rule List also says that the agency will propose another rule, requiring electronic registration beforehand for the H-1B lottery. This has the potential to be a good thing, since so many employers spend time and money on H-1B applications which are never selected in the H-1B lottery. However, if this is a means to pre-adjudicate applications, that could turn problematic.

Additionally, the Rule List contains a final rule on collecting biometrics on exit and departures, and registering for ESTA in advance at land borders.

Here are excerpts of the proposed rules from the list:

DHS/USCIS RIN: 1615-AC15 Publication ID: Fall 2017

Title: ●Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization

Abstract:

On February 25, 2015, DHS published a final rule extending eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status. DHS is publishing this notice of proposed rulemaking to amend that 2015 final rule. DHS is proposing to remove from its regulations certain H-4 spouses of H-1B nonimmigrants as a class of aliens eligible for employment authorization.

Agency: Department of Homeland Security(DHS) Priority: Economically Significant
RIN Status: First time published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage
Major: Yes Unfunded Mandates: Undetermined
EO 13771 Designation: Other
CFR Citation: 8 CFR 214 8 CFR 274a (To search for a specific CFR, visit the Code of Federal Regulations.)

Legal Authority: 6 U.S.C. 112 8 U.S.C. 1103(a) 8 U.S.C. 1184(a)(1) 8 U.S.C. 1324a(H)(3)(B)

Legal Deadline: None
Statement of Need:

DHS is reviewing the 2015 final rule in light of issuance of Executive Order 13788, Buy American and Hire American.

Summary of the Legal Basis:

The Secretary of Homeland Security (Secretary) has the authority to amend this regulation under section 102 of the Homeland Security Act of 2002, Public Law 107-296, 116 Stat. 2135, 6 U.S.C. 112, and section 103(a) of the Immigration and Nationality Act (INA), 8 U.S.C. 1103(a), which authorize the Secretary to administer and enforce the immigration and nationality laws. In addition, section 214(a)(1) of the INA, 8 U.S.C. 1184(a)(1), provides the Secretary with authority to prescribe the time and conditions of nonimmigrants’ admissions to the United States. Also, section 274A(h)(3)(B) of the INA, 8 U.S.C. 1324a(h)(3)(B), recognizes the Secretary’s discretionary authority to extend employment authorization.
Alternatives:

Anticipated Costs and Benefits:
DHS anticipates that there would be two primary impacts that DHS can estimate: the cost-savings accruing to forgone future filings by H-4 spouses, and labor turnover costs that employers of H-4 workers could incur.

—————————————————————————————————-

DHS/USCIS RIN: 1615-AC13 Publication ID: Fall 2017
Title: ●Strengthening the H-1B Nonimmigrant Visa Classification Program
Abstract:
The Department of Homeland Security (DHS) will propose to revise the definition of specialty occupation to increase focus on obtaining the best and the brightest foreign nationals via the H-1B program, and revise the definition of employment and employer-employee relationship to better protect U.S. workers and wages. In addition, DHS will propose additional requirements designed to ensure employers pay appropriate wages to H-1B visa holders.

Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: First time published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage
Major: Undetermined Unfunded Mandates: Undetermined
EO 13771 Designation: Other
CFR Citation: 8 CFR 214.2(h)(4)

Legal Authority: 8 U.S.C. 1184

Legal Deadline: None
Statement of Need:
The purpose of these changes is to ensure that H-1B visas are awarded only to individuals who will be working in a job which meets the statutory definition of specialty occupation. In addition, these changes are intended to ensure that the H-1B program supplements the U.S. workforce and strengthens U.S. worker protections.
Summary of the Legal Basis:
Alternatives:
Anticipated Costs and Benefits:
DHS is still considering the cost and benefit impacts of the proposed provisions. In general, DHS anticipates that there may be some filing fees and opportunity costs of time in preparing and filing forms for the eligible population. DHS also anticipates benefits in the form of reduced fraud and abuses of the current H-1B program.

Risks:
Timetable:
Action Date FR Cite
NPRM 10/00/2018

Regulatory Flexibility Analysis Required: Undetermined Government Levels Affected: Undetermined
Federalism: Undetermined
Included in the Regulatory Plan: Yes
RIN Information URL: www.regulations.gov
Public Comment URL: www.regulations.gov

RIN Data Printed in the FR: No
Agency Contact:
Kevin Cummings
Division Chief, Business and Foreign Workers Division
Department of Homeland Security
U.S. Citizenship and Immigration Services
Office of Policy and Strategy, 20 Massachusetts Avenue, NW.,
Washington, DC 20529
Phone:202 272-8377
Fax:202 272-1480
Email: kevin.j.cummings@uscis.dhs.gov

———————————————————————————————————-

DHS/USCIS RIN: 1615-AB71 Publication ID: Fall 2017
Title: Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Aliens Subject to Numerical Limitations
Abstract:
The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of alien workers subject to annual numerical limitations. This rule proposes to establish an electronic registration program for petitions subject to numerical limitations for the H-1B nonimmigrant classification. This action is being considered because the demand for H-1B specialty occupation workers by U.S. companies has often exceeded the numerical limitation. This rule is intended to allow USCIS to more efficiently manage the intake and lottery process for these H-1B petitions. The Department published a proposed rule on this topic in 2011. The Department intends to publish an additional proposed rule in 2018. The proposal may include a modified selection process, as outlined in section 5(b) of Executive Order 13788, Buy American and Hire American.

Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage
Major: No Unfunded Mandates: No
EO 13771 Designation: Other
CFR Citation: 8 CFR 214

Legal Authority: 8 U.S.C. 1184(g)

Legal Deadline: None
Statement of Need:
This regulation would help to streamline the process for administering the H-1B cap process and to ensure that H-1B visas are awarded to the most skilled or highest-paid petition beneficiaries.
Summary of the Legal Basis:
Alternatives:
DHS is currently in the process of considering policies that align with our overarching goals of ensuring the allocation of H-1B cap numbers are provided to the best and brightest foreign national beneficiaries, and ensuring that the operational process is as efficient as possible.
Anticipated Costs and Benefits:
While DHS is currently in the process of assessing the costs and benefits of the policy changes under consideration, DHS believes that in aggregate the proposed changes would result in better resource management and predictability for both USCIS and petitioning employers. DHS anticipates that implementing a pre-registration process could benefit the regulated public by potentially reducing the cost and time involved in petitioning for H-1B nonimmigrants, through an up-front cap selection process where only those employers who have obtained a cap number would be required to submit the entire Petition for a Nonimmigrant Worker, Form I-129.
Risks:
Timetable:
Action Date FR Cite
NPRM 03/03/2011 76 FR 11686

NPRM Comment Period End 05/02/2011
NPRM 02/00/2018

Additional Information: USCIS 2443-08. Includes Retrospective Review under E.O. 13563.
Regulatory Flexibility Analysis Required: Yes Government Levels Affected: None
Small Entities Affected: Businesses Federalism: No
Included in the Regulatory Plan: Yes
RIN Information URL: www.regulations.gov
Public Comment URL: www.regulations.gov

RIN Data Printed in the FR: Yes
Agency Contact:
Kevin Cummings
Division Chief, Business and Foreign Workers Division
Department of Homeland Security
U.S. Citizenship and Immigration Services
Office of Policy and Strategy, 20 Massachusetts Avenue, NW.,
Washington, DC 20529
Phone:202 272-8377
Fax:202 272-1480
Email: kevin.j.cummings@uscis.dhs.gov

—————————————————————–

 

DHS/USCBP RIN: 1651-AB12 Publication ID: Fall 2017
Title: Collection of Biometric Data Upon Entry to and Exit From the United States
Abstract:The Department of Homeland Security (DHS) is required by statute to develop and implement an integrated, automated entry and exit data system to match records, including biographic data and biometric identifiers, of aliens entering and departing the United States. In addition, Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States, published in the Federal Register at 82 FR 13209, states that DHS is to expedite the completion and implementation of a biometric entry-exit tracking system.  Although the current regulations provide that DHS may require certain aliens to provide biometrics when entering and departing the United States, they only authorize DHS to collect biometrics from certain aliens upon departure under pilot programs at land ports and at up to 15 airports and seaports.  To provide the legal framework for CBP to begin a comprehensive biometric entry-exit system, DHS is amending the regulations to remove the references to pilot programs and the port limitation.  In addition, to facilitate the implementation of a seamless biometric entry-exit system that uses facial recognition, DHS is amending the regulations as they pertain to the provision of photographs upon entry and exit.
Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage
Major: No Unfunded Mandates: Undetermined
EO 13771 Designation: Other
CFR Citation: 19 CFR 215.8    19 CFR 235.1
Legal Authority: 8 U.S.C. 1365a    8 U.S.C. 1365b
Legal Deadline:  None
Statement of Need:This rule is necessary to provide the legal framework for DHS to begin implementing a comprehensive biometric entry-exit system.  Collecting biometrics at departure will allow CBP and DHS to know with better accuracy whether aliens are departing the country when they are required to depart, reduce visa fraud, and improve CBP’s ability to identify criminals and known or suspected terrorists before they depart the United States.
Summary of the Legal Basis:Numerous Federal statutes require DHS to create an integrated, automated biometric entry and exit system that records the arrival and departure of aliens, compares the biometric data of aliens to verify their identity, and authenticates travel documents presented by such aliens through the comparison of biometric identifiers.  See, e.g. , Immigration and Naturalization Service Data Management Improvement Act of 2002, the Intelligence Reform and Terrorism Prevention Act of 2004, and the 2016 Consolidated Appropriations Act.  In addition, Executive Order 13780, Protecting the Nation from Foreign Terrorist Entry into the United States, states that DHS is to expedite the completion and implementation of a biometric entry-exit tracking system.
Alternatives:
Anticipated Costs and Benefits:This rule will allow CBP to know with greater certainty whether foreign visa holders depart the country when required. It will also prevent visa fraud and allow CBP to more easily identify criminals or terrorists when they attempt to leave the country. The technology used to implement this rule could also eventually be used to modify entry and exit procedures to reduce processing and wait times. This rule imposes opportunity and technology acquisition and maintenance costs on CBP and opportunity costs on the traveling public.
Risks:
Timetable:

Action Date FR Cite
Interim Final Rule 04/00/2018
Regulatory Flexibility Analysis Required: Undetermined Government Levels Affected: Undetermined
Federalism: Undetermined
Included in the Regulatory Plan: Yes
RIN Data Printed in the FR: No
Agency Contact:
Michael Hardin
Deputy Director
Department of Homeland Security
U.S. Customs and Border Protection
Customs and Border Protection, Entry/Exit Policy and Planning, 1300 Pennsylvania Avenue, NW, Office of Field Operations, 5th Floor,
Washington, DC 20229
Phone:202 325-1053
Email: michael.hardin@cbp.dhs.gov

———————————————————————————————————

DHS/USCBP RIN: 1651-AB14 Publication ID: Fall 2017
Title: Implementation of the Electronic System for Travel Authorization (ESTA) at U.S. Land Borders–Automation of CBP Form I-94W
Abstract:This rule amends Department of Homeland Security (DHS) regulations to implement the Electronic System for Travel Authorization (ESTA) requirements under section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007, for aliens who intend to enter the United States under the Visa Waiver Program (VWP) at land ports of entry.  Currently, aliens from VWP countries must provide certain biographic information to U.S. Customs and Border Protection (CBP) officers at land ports of entry on a paper I-94W Nonimmigrant Visa Waiver Arrival/Departure Record (Form I-94W).  Under this rule, these VWP travelers will instead provide this information to CBP electronically through ESTA prior to application for admission to the United States.  DHS has already implemented the ESTA requirements for aliens who intend to enter the United States under the VWP at air or sea ports of entry. 
Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Final Rule Stage
Major: No Unfunded Mandates: No
EO 13771 Designation: Other
CFR Citation: 8 CFR 212.1    8 CFR 217.2    8 CFR 217.3    8 CFR 217.5    8 CFR 286.9
Legal Authority: Pub. L. 110-53
Legal Deadline:  None
Statement of Need:This rule is necessary to implement the Electronic System for Travel Authorization (ESTA) under section 711 of the Implementing Recommendations of the 9/11 Commission Act of 2007 for aliens who intend to enter the United States under the Visa Waiver Program at land ports of entry.  ESTA was implemented at air and sea ports of entry in 2008.  At that time, however, CBP did not have the ability to implement the program at land ports of entry.  This rule will ensure that ESTA is now implemented at all ports of entry.
Summary of the Legal Basis:
Alternatives:
Anticipated Costs and Benefits:In addition to fulfilling a statutory mandate, the ESTA Land rule will strengthen national security through enhanced traveler vetting, streamline entry processing through Form I-94W automation, reduce inadmissible traveler arrivals, and produce a consistent, modern VWP admission policy in all U.S. travel environments, which will benefit VWP travelers, CBP, and the public.  The rule will also introduce time and fee costs to VWP travelers required to complete an ESTA application.
Risks:
Timetable:

Action Date FR Cite
Interim Final Rule 04/00/2018
Regulatory Flexibility Analysis Required: No Government Levels Affected: None
Federalism: No
Included in the Regulatory Plan: Yes
RIN Data Printed in the FR: No
Agency Contact:
Suzanne Shepherd
Director, Electronic System for Travel Authorization
Department of Homeland Security
U.S. Customs and Border Protection
1300 Pennsylvania Avenue NW.,
Washington, DC 20229
Phone:202 344-2073
Email: suzanne.m.shepherd@cbp.dhs.gov

 

Tags: , , , , , , , , ,
Posted in General, Scott Railton |

New Rules Affecting Work Eligibility and Portability for High Skilled Workers

Friday, November 18th, 2016 by W. Scott Railton

The Department of Homeland Security published its final rule today for modernizing the employment based immigration. The rule will take effect 60 days from today, which should be right before the change in the administrations. This rule is a big deal for employment immigration. It is also just plain big, weighing in at 94 pages in the Federal Register.

It institutes many changes. Broadly speaking, the rule affects cap-exempt determinations for H-1Bs, creates grace periods for certain situations, revokes the 90 day EAD rule, and creates a compelling circumstances EAD. The rule will probably lead to more self-petitions from professionals, typically under the national interest waiver category. It will take some time to sort through all of it, but the general impression is the rule will make improvements upon the employment based immigration system.

Unless….of course, the Trump Administration takes steps to revoke the rule. The Trump Administration and the key people involved with immigration have loudly been anti-immigration, whether legal or illegal. There is some chance therefore that steps may be taken to roll back this and other rules.

Here’s USCIS’s announcement on the rule, with more particulars:

USCIS Publishes Final Rule For Certain Employment-Based Immigrant and Nonimmigrant Visa Programs

WASHINGTON— USCIS has published a final rule to modernize and improve several aspects of certain employment-based nonimmigrant and immigrant visa programs. USCIS has also amended regulations to better enable U.S. employers to hire and retain certain foreign workers who are beneficiaries of approved employment-based immigrant visa petitions and are waiting to become lawful permanent residents. This rule goes into effect on Jan. 17, 2017.
Among other things, DHS is amending its regulations to:
• Clarify and improve longstanding DHS policies and practices implementing sections of the American Competitiveness in the Twenty-First Century Act and the American Competitiveness and Workforce Improvement Act related to certain foreign workers, which will enhance USCIS’ consistency in adjudication.

• Better enable U.S. employers to employ and retain high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (Form I-140 petitions) while also providing stability and job flexibility to these workers. The rule increases the ability of these workers to further their careers by accepting promotions, changing positions with current employers, changing employers and pursuing other employment opportunities.

• Improve job portability for certain beneficiaries of approved Form I-140 petitions by maintaining a petition’s validity under certain circumstances despite an employer’s withdrawal of the approved petition or the termination of the employer’s business.

• Clarify and expand when individuals may keep their priority date when applying for adjustment of status to lawful permanent residence.

• Allow certain high-skilled individuals in the United States with E-3, H-1B, H-1B1, L-1 or O-1 nonimmigrant status, including any applicable grace period, to apply for employment authorization for a limited period if:
1. They are the principal beneficiaries of an approved Form I-140 petition,
2. An immigrant visa is not authorized for issuance for their priority date, and
3. They can demonstrate compelling circumstances exist that justify DHS issuing an employment authorization document in its discretion.
Such employment authorization may only be renewed in limited circumstances and only in one year increments.

• Clarify various policies and procedures related to the adjudication of H-1B petitions, including, among other things, providing H-1B status beyond the six year authorized period of admission, determining cap exemptions and counting workers under the H-1B cap, H-1B portability, licensure requirements and protections for whistleblowers.

• Establish two grace periods of up to 10 days for individuals in the E-1, E-2, E-3, L-1, and TN nonimmigrant classifications to provide a reasonable amount of time for these individuals to prepare to begin employment in the country and to depart the United States or take other actions to extend, change, or otherwise maintain lawful status.

• Establish a grace period of up to 60 consecutive days during each authorized validity period for certain high-skilled nonimmigrant workers when their employment ends before the end of their authorized validity period, so they may more readily pursue new employment and an extension of their nonimmigrant status.

• Automatically extend the employment authorization and validity of Employment Authorization Documents (EADs or Form I-766s) for certain individuals who apply on time to renew their EADs.

• Eliminate the regulatory provision that requires USCIS to adjudicate the Form I-765, Application for Employment Authorization, within 90 days of filing and that authorizes interim EADs in cases where such adjudications are not conducted within the 90-day timeframe.

For more information, visit the Working in the U.S. page or read the rule in the Federal Register. USCIS plans to host a national stakeholder engagement regarding this final rule. Visit this page to sign up for an email alert to receive the invitation from the USCIS Public Engagement Division.

For more information on USCIS and its programs, please visit www.uscis.gov or follow us on Twitter (@uscis), YouTube (/uscis), Facebook(/uscis), and the USCIS blog The Beacon.

– USCIS -

Tags: , , , , , , , , , ,
Posted in General, Scott Railton |