HIGH-SKILLED WORKER REGULATION SUMMARY

The USCIS recently finalized a new regulation to benefit high-skilled workers which will go into effect on January 17, 2017 – just three days before President-Elect Trump is inaugurated.  The regulation was purposely timed to precede the new Trump administration.  Opinions are mixed on whether the new regulation will stay in effect, or will be immediately revoked or rewritten when President Trump takes office.

Some important highlights of the regulation are:

·         New 60 Day Grace Period.  H-1Bs, L-1s, Es, TNs, and Os and their dependents will have a 60 day grace period in the event that the principal visa status holder loses his/her job.  The grace period will allow these nonimmigrant visa holders to remain in the US and find a new job.  The 60-day grace period may be provided to an individual only once per authorized validity period.  An individual may be provided other such grace periods if he or she receives a new authorized validity period in one of the eligible nonimmigrant classifications. 

·         Flexibility for H-1B licensed occupations.  The USCIS will approve H-1B petitions for a validity period of up to one year where the applicant can prove that the H-1B employee does not have a US professional license due to the State’s requirement of a social security number, US employment authorization, or a similar technical requirement.  This has been USCIS policy, but is now officially law.   Unfortutnly, the USCIS still has much discretion in this area to interpret local state licensure law.

·         EAD extensions. An EAD will automatically be extended for 180 days, as long as an EAD extension was filed before the expiration of the current EAD.  This will provide needed certainty of continued work authorization.

·         Cap-Exempt Employers. The new rule reworks the H-1B cap-exempt employers rule for employers who are affiliated with an institute of higher education in two ways. 

o   DHS is replacing the term ‘‘primary purpose’’ with ‘‘fundamental activity.”  This is a less-restrictive standard than the current “primary purpose” rule.  Going forward, ‘‘a fundamental activity’’ of the nonprofit entity must be to directly contribute to the research or education mission of the institution of higher education.

o   A non-profit that has a formal written agreement that establishes an “active working relationship” with a University, no longer has to have shared ownership and control. This is also a lesser standard than at present.

·         Retention of I-140 in almost all situations.  This new rule clarifies existing USCIS policy that allows Beneficiaries to generally retain their I-140s even if the prior employer revokes the I-140.  This will allow these Beneficiaries to (i) recapture the I-140 priority date in future green card applications and (ii) take advantage of spousal work authorization rules without fear of an underlying I-140 revocation.

USCIS ANNOUNCES FEE INCREASE EFFECTIVE DEC 23, 2016

Earlier this year in May the USCIS published a proposed rule to increase fees.  On October 24, 2016, the final rule was published adjusting the fees for most immigration applications and petitions.  The new fees will go into effect on December 23, 2016.

 

The new fees are:

Form	Current Fee	New Fee	Change
I-129	$325	$460	$135
I-130	$420	$535	$115
I-140	$580	$700	$120
I-485	$1,070	$1,225	$155
I-539	$290	$370	$80
I-765	$385	$410	$25

A full list of all of the new fees can be found on the USCIS website.

The USCIS is almost entirely funded by the fees paid by applicants and petitioners for immigration benefits.  The fee increase is the first in the last six years and.  The fees will go up an average of 21 percent and will recover the costs associated with fraud detection and prevention and national security.

MU VISA ADVISOR: USCIS ISSUES NEW OPT STEM EXTENSION PROGRAM – EFFECTIVE MAY 10, 2016

On March 11, 2016 the USCIS published the rules of a new, expanded STEM Extension OPT program.  The new STEM Extension will go into effect Tuesday, May 10, 2016.  Among other changes, the program extends the length of the STEM Extension from 17 months to 24 months and that students are now permitted an aggregate of 170 days of unemployment for OPT and the STEM Extension period.  For more information, please visit https://studyinthestates.dhs.gov/

EMPLOYER REQUIREMENTS

The new STEM Extension Program requires more from employers.  To employ a student under the new STEM Program, employers must:

1. Be an E-Verify employer.  This remains unchanged from the previous STEM Extension Program.
2. Pay the student a wage commensurate to similarly situated US workers.  The calculation of this wage should be documented in the student’s employment record.
3. Employ the OPT student for at least 20 hours per week in a position that is directly related to the student’s degree.
4. Report any material changes in the student’s employment to the appropriate school official.  Material changes include: a change in the student’s hours, compensation, worksite, supervisor, or changes to the corporate structure.  Employers must also report a termination or resignation of employment to the school official within 5 business days.
5. Be subject to site visits by USCIS Officers to verify the student’s employment.
6. Complete and comply with a training plan for the student’s employment.  See below for additional details about the training plan.

TRAINING PLAN

The STEM Extension Training Plan has four components:

1. Describe the student’s role.  List specific tasks, give time frames and goals, describe the phases of the student’s training.
2. Identify the goals and objectives of the training.  State specific skills, techniques, or knowledge the student will gain while employed and describe projects or assignments where the student will use these skills.
3. Detail the employer’s oversight of the student.  State the frequency with which the student will meet with his/her supervisor.  Detail how the supervisor will review or sign off on the student’s work and describe any existing training programs in place.
4. Define the measures and assessments by which the student will be evaluated.  Detail how the student’s progress will be tested.  Note any new technologies or skills which will be learned and keep a journal of or regular reviews of student’s work.

Employer’s Certification 

Form I-983, the Training Plan for STEM OPT Students is available in draft form but has not yet been finalized by the Immigration Service.  By signing the training plan, the employer confirms:

1. Employment is directly related to the student’s degree and achieves the objectives of the training program;
2. Student will receive supervision and training by experienced staff;
3. Employer has sufficient resources and personnel to provide training to the student;
4. The OPT student is not replacing a full- or part-time, temporary or permanent US Worker.  The terms and conditions of the student’s employment are commensurate with similarly situated US Workers at the company.
5. The training complies with all applicable federal and state requirements related to employment.

TRANSITION RULES

There are three primary groups of students impacted by the implementation of the new STEM Extension Program:

1.  Students on a 17 month STEM Extension.

• These students with 150 days of time left on their OPT can apply for an additional 7 months of OPT, giving them the full 24 months of STEM OPT.
• These 7 month requests must be filed between May 10 and August 8.  The request requires a new I-20, I-765, and filing fee.
• If the student elects not to ask for the 7 month extension, the student completes the STEM OPT Period under the old rules.

2. Students with a pending STEM Extension on May 10, 2016.

• The new rules apply to the STEM extension request.  These students should expect an RFE to be issued requesting a training plan and other new requirements. 
• By responding to the RFE the student amends the STEM OPT to the full 24 month period without filing a new request.

3.  Students on a 12 month OPT.

• If the OPT expires before May 10, the student should file for the 17 month STEM Extension and expect an RFE (as outlined in #2 above).
• If the OPT expires after May 10, the student should file by June 1 under either STEM Extension Program - the 17 month or 24 month.
• If the OPT expires after June 1, the student must file the STEM Extension under the 24 month program.

H-1B TELECONFERENCE FEB 4, 2016

MU VISA ADVISOR:   H-1B TELECONFERENCE FEB 4, 2016

In anticipation of the H-1B cap filing date of April 1, 2016, MU Law will be holding a free teleconference for our clients and friends on February 4, 2016 at 2PM / 11AM PT.  Interested clients and friends should email MU’s Annalisa Smith, who will register you for the teleconference.

Last year the H-1B cap was reached in the first week.  We expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2016.

H-1B Teleconference Agenda

• H-1B Cap Basics and Projections

• H-1B Dependency

• H-1B issues for Staffing Companies and Third Party Placements: What is Third- Party Placement v. In-House work?

• Hot issues:  
• CPT / OPT maintenance
• NIV maintenance
• Cap-gap for F-1s
• H4 EAD rule
• STEM OPT Lawsuit
• Increased filing fees for 50/50 employers

• Top 10 things H-1B employers can do to stay compliant

• Legislative Update
• DACA/DAPA to the Supreme Court
• I-140 EAD
• Presidential Election: What we can expect from President Trump

• Q&A

Please contact your MU immigration attorney if you have any questions about this MU Visa Advisor or any other immigration issue.