Posts Tagged ‘Railton’

Pre-Registration for 2019 Cap-Subject H-1B In The Works

Monday, November 19th, 2018 by W. Scott Railton

The Department of Homeland Security released its list of rules that it plans to update, and the H-1B program made the list.  Specifically, DHS is actively considering whether to implement a pre-registration requirement for cap-subject H-1Bs.  Here’s the language from the DHS Fall 2018 Unified Agenda:

The Department of Homeland Security proposes to amend its regulations governing petitions filed on behalf of H-1B beneficiaries who may be counted under section 214(g)(1)(A) of the Immigration and Nationality Act (INA) (“H-1B regular cap”) or under section 214(g)(5)(C) of the INA (“H-1B master’s cap”). 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. employers has often exceeded the numerical limitation. This rule is intended to allow U.S. Citizenship and Immigration Services (USCIS) to more efficiently manage the intake and selection process for these H-1B petitions.

Time is getting tight for the U.S. Government to make this work for the April 1st, 2019 lottery.  A Notice of Rulemaking rule will first need to be published in the Federal Register, whereupon the public will be afforded a period of time to comment. The matter is currently pending review at the Office of Management and Budget.

I like the idea of pre-registration, but we’ll have to wait and see what this exactly looks like. Ideally, I think a system which allows employers to apply for a lottery spot before making an actual application can save businesses all sorts of money.  It is a waste of government and business expenditure to prepare full applications, only to have the government return about half of them due to not being selected in the lottery. The Government proposed a similar rule in 2011, but the rule was never implemented. Unfortunately, the Administration has consistently made the H-1B process harder for employers, without regard to cost or sometimes established precedent and law, and so any change to the H-1B program has to be anticipated with skepticism.

In any case, we are recommending that employers start the H-1B process earlier this year, to account for any changes the Administration may implement. We’ll stay up to date on this, and advise accordingly.

 

 

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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.

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Scott Railton Elected Washington State Chapter Chair for American Immigration Lawyers Association

Wednesday, June 6th, 2012 by W. Scott Railton

I am honored to post here that I was recently elected to serve as Washington State Chapter Chair for the American Immigration Lawyers Association.

The American Immigration Lawyers Association (AILA) is a professional organization for attorneys who practice immigration law. Nationally, the organization has over 11,000 members. The Washington State Chapter currently has approximately 370 members. Though called the Washington Chapter, our membership includes attorneys from Alaska, Montana, Oregon, Idaho, and British Columbia. I have always been a member of the Association, since commencing immigration law practice, and can’t imagine practicing immigration law without the support of AILA. Greg Boos and David Andersson are two of the longest standing members of our Chapter.

Our Washington State AILA Chapter provides many services to lawyers and the community at large.  The practice of immigration law requires constant education, to keep up with the changes in the law and its administration. On a monthly basis, we schedule professional education events, as well as a two day seminar once per year.  The Chapter also holds pro bono Citizenship Day clinics a few times per year, with attorney volunteers working at sites all over the state. These clinics have helped hundreds naturalize over the past few years. Our Chapter holds regular liaison meetings with agencies involved in immigration matters, such as U.S. Citizenship and Immigration Services, U.S. Immigration and Customs Enforcement, and U.S. Customs and Border Protection.

We also have committees dedicated to advancing the ethical practice of immigration law, monitoring state government activities related to immigration in Olympia, and providing attorneys with law practice management support. The Chapter is a respected voice on matters pertaining to immigration law reform, as we schedule regular meetings with congressional staffers, periodically meet with editorial boards, and annually send a delegation to Washington D.C. to meet with members of Congress. I can go on–we are a very active professional association.

As Chair, I will have to draw from my past experiences of volunteering on many of these committees, so that the Washington State Chapter can continue to operate as one of the best in the country. Last year, our Chapter received the highest possible recognition from the national association.

I appreciate the confidence of my colleagues in electing me Chair. I am sure it will be a challenging and rewarding year. I am also thankful to everyone here at the firm for the support in this endeavor. The success of the Washington State AILA Chapter is based on the work of dozens of giving attorneys. I’m fortunate professionally and personally to work with such a terrific group.

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Cascadia Attorneys Speak at the 2012 NW Regional Immigration Law Conference

Friday, March 23rd, 2012 by W. Scott Railton

Greg Boos and I participated on speaker panels last week at the 2012 American Immigration Lawyer Association’s Northwest Regional Immigration Law Conference in Seattle, Washington.

The conference was a success, by all reports, with nearly 300 attorneys in attendance, and two full days of immigration law panels. The conference was held at Seattle University’s School of Law. As a condition of practicing law, lawyers are required to regularly take continuing legal education courses, with a required minimum in ethics.

Greg’s panel was entitled “Border Issues and Solutions,” and featured Greg, Diane Butler of Lane Powell, and U.S. Customs and Border Protection Supervisors Shari Barnes and Jonni Galarza. The panel discussed such things as expedited removal, the Beyond The Border agreement between the U.S. and Canada, and possible coming changes to entry/exit documentation (I-94s).

My panel was entitled “Ethical Issues In Immigration Practice.” My co-panelist was Steve Crossland, Washington State Bar President. Steve and I discussed a number of hot topics in ethics for immigration lawyers, including disclosures regarding dual representation; limited representation agreements and fee agreements; a licensing fee referendum; and a proposed change to the Rules of Professional Responsibility.

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