US CBP Clarifies Policies for Certain Nonimmigrant Admissions

From Morgan Lewis, 10/27/2016

The agency confirms the admissibility of certain nonimmigrants who hold visas from different employers.

US Customs and Border Protection (CBP) recently clarified its policy on admissions to the United States after an applicant for admission changes employment or adds a concurrent employer. CBP confirmed that those applying for petition-based employment (H-1B, L-1, O-1, P-1, and R-1) who hold valid nonimmigrant visas need only present the valid visa and an I-797 approval notice for the new (or additional) employer. TN applicants may present either an I-797 approval notice issued by US Citizenship and Immigration Services or an employment letter from the new employer along with standard evidence of TN qualification. This formally confirms the CBP’s past practice of allowing certain nonimmigrants to be admitted to the United States with a petition approval in one employer’s name and a visa stamp in a different employer’s name.

USCIS Temporarily Suspends Premium Processing for Extension of Stay H-1B Petitions

From USCIS, 05/22/2015

Please note: This is an update to the alert that we issued on Tuesday, May 19 with the same headline. That alert can be found in the USCIS Archive.

Starting May 26, 2015, USCIS will temporarily suspend premium processing for all H-1B extension of stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant.

USCIS will continue to premium process H-1B extension of stay petitions filed with Form I-907 premium requests prior to May 26, 2015.

USCIS will refund the premium processing fee if:

• A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and
• USCIS did not act on the case within the 15-calendar-day period.

Premium Processing Remains Available for Certain H-1B Petitions

Premium processing remains available for:

• Form I-129 H-1B petitions subject to the H-1B cap and cap exempt petitions, as long as the petition is requesting:
  • A change of nonimmigrant status, or
  • Consular notification;
• Form I-129 H-1B petitions filed on behalf of individuals who already have H-1B nonimmigrant status, as long as the petition is requesting:
  • Consular notification, or
  • An amendment of a previously approved petition that does not include a request for an extension of stay; and
• All Form I-129 H-1B1 petitions.

Why We Are Suspending Premium Processing

This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations. We anticipate receiving an extremely high volume of Form I-765 applications once the H-4 final rule becomes effective on May 26, 2015, and need to temporarily suspend premium processing to ensure that we can provide good customer service to both H-1B petitioners and H-4 applicants.

We will monitor our workloads closely and may resume accepting premium processing requests before July 27, 2015, if we determine that we can once again provide customers with the level of service offered with premium processing.

Expedited Processing

Petitioners may request expedited processing for their H-1B extension of stay petition during the temporary suspension of premium processing. We will review all expedite requests on a case-by-case basis and grant the requests at the discretion of the Director. The burden is on the petitioner to demonstrate that one or more of the expedite criteria have been met.

For further information on how to request expedited processing, please see our Expedite Criteria webpage.

For more information, please visit: http://www.uscis.gov/news/alerts/uscis-temporarily-suspends-premium-processing-extension-stay-h-1b-petitions

USCIS Temporarily Suspends Premium Processing for Extension of Stay H-1B Petitions

Starting May 26, 2015, U.S. Citizenship and Immigration Services (USCIS) will temporarily suspend premium processing for all H-1B Extension of Stay petitions until July 27, 2015. During this time frame, petitioners will not be able to file Form I-907, Request for Premium Processing Service, for a Form I-129, Petition for a Nonimmigrant Worker, requesting an extension of the stay for an H-1B nonimmigrant.  USCIS will continue to premium process H-1B Extension of Stay petitions filed with Form I-907 premium requests prior to May 26, 2015.
USCIS will refund the premium processing fee if:

• A petitioner filed H-1B petitions prior to May 26, 2015, using the premium processing service, and 
• USCIS did not act on the case within the 15-calendar-day period.

Premium processing remains available for all other Form I-129 H-1B petitions, including petitions subject to the H-1B cap that are requesting a change of nonimmigrant status or consular notification.

This temporary suspension will allow USCIS to implement the Employment Authorization for Certain H-4 Spouses final rule in a timely manner and adjudicate applications for employment authorization filed by H-4 nonimmigrants under the new regulations.

H-1B Processing Times

As of January 2015

The processing times listed below are posted by the Department of Labor and United States Citizenship and Immigration Services. This does not reflect Global Human Resources' processing time.

*Eligible for Premium Processing

USCIS Director Says H-4 EAD Rule is Near Completion

From Fragomen.com, 01/22/2015

In a conference call with stakeholders, U.S. Citizenship and Immigration Services (USCIS) Director Leon Rodriguez said that his agency is completing work on a regulation that allows certain H-4 nonimmigrants to apply for employment authorization, with implementation “close at hand.” Director Rodriguez offered no concrete details or timelines, but he reassured stakeholders that no policy issues remain unresolved. Rather, the agency is finalizing administrative matters concerning issuance of employment authorization documents (EADs) to eligible H-4 nonimmigrants. The regulation was originally slated for publication in December 2014. 

As originally proposed, the rule would allow an H-4 nonimmigrant to apply for employment authorization if his or her H-1B spouse (1) is the beneficiary of an approved Form I-140 immigrant worker petition; or (2) is the beneficiary of a labor certification application or an I-140 petition that was filed on his or her behalf 365 days or more in the past and is seeking or has obtained an extension of H-1B status beyond the sixth year on the basis of the pending permanent residence case. 

What’s Next for the H-4 EAD Rule 

USCIS must submit a final version of the regulation to the Office of Management and Budget (OMB) for review and clearance. After OMB gives its approval, the rule will be published in the Federal Register and an implementation date announced. USCIS is expected to begin accepting H-4 EAD applications soon after the rule is published. 

Details of the final rule -- including information about EAD eligibility and application requirements -- are confidential and will not be released until the rule is slated for publication. 

What This Means for Employers and Foreign Nationals 

Once the rule is implemented, eligible H-4 nonimmigrants will need to file a Form I-765 application for employment authorization, along with documentation of their H-1B spouse's permanent residence case. USCIS is expected to announce specific application procedures and requirements when the regulation is finally released. 

USCIS July Processing Time Reports

From Council for Global Immigration, 07/15/2014

USCIS has issued updated processing time reports for the month of July, which show processing times as of May 31, 2014 for the Vermont Service Center (VSC), California Service Center (CSC), Texas Service Center (TSC), Nebraska Service Center (NSC) and the National Benefits Center (NBC).

As of the end of May, all categories of H-1Bs were reported as being processed in 2 months at both CSC and VSC.  As a reminder, processing of premium processing cases did not begin until April 28, and processing of regularly filed H-1B cap cases did not begin until after that.  The 2 month processing times should not be taken as any indication of how quickly cap cases will be processed – we expect that processing times will be similar to last year for cap cases when some cases were not processed until very close to, or after, the October 1 start date for H-1B cap hires.

CSC and VSC both continue to indicate the standard processing times for L visas, with standard L visas being processed in one month and Blanket Ls in two months. 

There is now a backlog of EB-1 extraordinary ability cases at NSC, with a processing date of January 2, 2014 – a processing time of nearly 5 months.  All other I-140s continue to be processed in 4 months at NSC and TSC. For employment-based adjustments of status, NSC is processing I-485s in 4 months, but there continues to be a backlog at TSC, with a processing date of December 28, 2013 - a processing time of over five months.

Advance parole and employment authorization forms continue to be processed in 3 months at NBC.

Please click here to access the processing times for the VSC, CSC, TSC, NSC, and the NBC.

H-1B Processing Times

The amount of time needed to process an H-1B petition varies from 3 months to 5 months. The process is a series of consecutive steps with various Georgia Tech departments and federal agencies.

 Dynamic timeline: http://preview.tinyurl.com/or4pr3q

Step 1
Complete all required forms in iStart. This involves the employing department, legal affairs and the employee. All forms are reviewed and processed by a Faculty and Researcher Immigration Specialist in Global Human Resources.

Step 2
The Faculty and Researcher Immigration Specialist requests the prevailing wage from the US Department of Labor. The Immigration and Nationality Act (INA) requires that the hiring of a foreign worker will not adversely affect the wages and working conditions of U.S. workers comparably employed. To comply with the statute, the Department's regulations require that the wages offered to a foreign worker must be the prevailing wage rate for the occupational classification in the area of employment.

Currently, prevailing wage determinations take about 60 days.

Step 3
The Faculty and Researcher Immigration Specialist requests the Labor Condition Application (LCA) from the US Department of Labor. To prevent an adverse effect on the U.S. workforce, an employer applying to temporarily hire a nonimmigrant worker in H-1B, H-1B1 or E-3 status must attest that it has met or will meet the following requirements: 

• Wages: Pay the required wage to the workers for whom it will file a petition supported by the LCA for the duration of the authorized period of employment;
• Working Conditions: Provide the nonimmigrant workers working conditions that will not adversely affect the working conditions of U.S. workers similarly employed, such as hours, shifts, vacation periods, and benefits based on the same criteria as those the employer offers to its U.S. workers;
• No Strike/Lockout: Ensure that there is no strike, lockout, or work stoppage in the course of a labor dispute in the occupational classification at the place of employment at the time of filing the ETA Form 9035/9035E; and
• Notice: Notify its U.S. workers that it intends to hire an H-1B, H-1B1 or E-3 nonimmigrant worker by either providing notice of the LCA to the bargaining representative (representing the workers of the employer in the same job classification and area of intended employment as the nonimmigrant worker), or where there is no bargaining representative, providing electronic notice of the filing of the LCA or by posting notice of the LCA in at least two conspicuous locations in the employer's place(s) of business in the area of intended employment. The notice must contain specific information about the nonimmigrant workers sought and the process for submitting allegations of misrepresentation or non-compliance related to the LCA. Since the ETA Form 9035/9035E contains this information, employers may choose to comply with the notice requirement by providing or posting a copy of the ETA Form 9035/9035E.

In addition, the employer must provide the nonimmigrant worker(s) with a copy of the certified ETA Form 9035/9035E no later than the first day on which the foreign worker begins to work for the employer.

LCAs always take 7 days to be certified. 

Step 4

Adjudication of Form I-129, Petition for a Nonimmigrant Worker, but United States Citizenship and Immigration Services. All I-129 petitions for H-1B employees at Georgia Tech are mailed to the California Service Center.

The current processing times are as follows:

Premium Processing: 15 calendar days

Standard Processing: 75 calendar days

Explore an H-1B processing timeline here: Global Human Resources H-1B Timeline. This hypothetical timeline is based on the employing department initiating the H-1B process today and illustrates the various steps involved in the H-1B process.

USCIS Processing Time Information for the California Service Center can be found here: https://egov.uscis.gov/cris/processTimesDisplayInit.do

Please note this is for informational purposes only and does not account for unforeseen circumstances which may delay a petition or the arrival of an employee. 

Updated 06/18/2014

DHS Announces Proposals to Attract and Retain Highly Skilled Immigrants

From the Department of Homeland Security, 05/06/2014

WASHINGTON — As part of the Administration’s continuing commitment to attract and retain highly skilled immigrants, the Department of Homeland Security (DHS) today announced the publication of two proposed rules, including a rule to extend employment authorization to spouses of certain H-1B workers, and a proposal to enhance opportunities for certain groups of highly-skilled workers by removing obstacles to their remaining in the United States. 

Together these actions will help attract new businesses and new investment to the U.S. and ensure that the U.S. has the most skilled workforce in the world.

“The proposed rules announced today provide important support to U.S. businesses while also supporting economic growth here in the U.S.,” said Deputy Secretary Alejandro Mayorkas.  “These steps will help the U.S. maintain competitiveness with other countries in our efforts to attract the best and the brightest high-skilled workers from around the world to support companies here at home. Businesses continue to need these high-skilled workers, and these rules ensure we do not cede the upper hand to other countries competing for the same talent.”

“These two proposed rule changes are an integral part of the Administration’s efforts to strengthen entrepreneurship and innovation, and to help the United States attract and retain highly skilled immigrants,” said U.S. Secretary of Commerce Penny Pritzker. “The fact is, we must do more to retain and attract world-class talent to the United States and these regulations put us on a path to doing that. These actions promise to unleash more of the extraordinary contributions that immigrants have always made to America’s innovation economy.”

Both Notices of Proposed Rulemaking will soon publish in the Federal Register. DHS encourages the public to comment on the proposed rules through www.regulations.gov.  All public comments will be considered before the final rules are published and go into effect.

Proposed Rule to Extend Employment Authorization to Spouses of Certain H-1B Workers

This proposed rule will amend existing regulations to allow H-4 dependent spouses of certain principal H-1B workers to request employment authorization.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields such as science, engineering or computer programming.  Frequently, employers will petition for an immigrant visa for an H-1B worker, which enables individuals to become lawful permanent residents.  Lawful permanent residents are generally eligible to become naturalized U.S. citizens after five years.

Under existing regulations, DHS does not extend employment authorization to dependents (also known as H-4 nonimmigrants) of H-1B nonimmigrant workers. The change proposed by DHS, would allow H-4 dependent spouses of certain H-1B nonimmigrant workers to request employment authorization, as long as the H-1B worker has already started the process of seeking lawful permanent residence through employment.

Eligible individuals would include H-4 dependent spouses of principal H-1B workers who:

• Are the beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or
• Have been granted an extension of their authorized period of stay in the United States under the American Competitiveness in the Twenty-first Century Act of 2000 (AC21) as amended by the 21st Century Department of Justice Appropriations Authorization Act. AC21 permits H-1B workers seeking lawful permanent residence to work and remain in the United States beyond the six-year limit.

Proposal to Enhance Opportunities for Highly-Skilled Workers 

This proposed regulatory change would enhance opportunities for certain groups of highly-skilled and transitional workers by removing obstacles to their remaining in the United States.   

Specifically, the change to the regulation would:

• Update the regulations to include nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) in the list of classes of aliens authorized for employment incident to status with a specific employer,
• Clarify that H-1B1 and principal E-3 nonimmigrants are allowed to work without having to separately apply to DHS for employment authorization. 

• Allow E-3, H-1B1 and CW-1 nonimmigrant workers up to 240 days of continued work authorization beyond the expiration date noted on their Form I-94, Arrival/Departure Record, while the extension request is pending.

It would affect workers in specialty occupation nonimmigrant classifications for professionals from Chile and Singapore (H-1B1) and Australia (E-3), as well as Commonwealth of the Northern Mariana Island (CNMI)-Only Transitional Workers (CW-1).

Under current regulations, employers of workers in E-3,  H-1B1, or CW-1 status must generally file a petition requesting the extension of the employee’s status well before the initial authorized duration of status expires.

Finally, this proposal would also expand the current list of evidentiary criteria for employment-based first preference (EB-1) outstanding professors and researchers to allow the submission of evidence comparable to the other forms of evidence already listed in the regulations.  This proposal would harmonize the regulations for EB-1 outstanding professors and researchers with other employment-based immigrant categories that already allow for submission of comparable evidence. 

For more information, please visit www.dhs.gov.

Reminder: Travel Tips for Foreign Students Awaiting a Change of Status to H-1B

From Fragomen.com, 05/01/2014

Please note Fragomen's intended audience is future H-1B employees that will be employed by a cap-subject employer. As an institution of higher education Georgia Tech is cap exempt, therefrom the references to October 1, 2014 may not be applicable.

Are you an F-1 student who is the beneficiary of an H-1B petition and a request to change status to H-1B for employment starting on October 1, 2014? If you are planning to travel abroad between now and October 1, you should carefully consider whether your travel is necessary. 

Traveling internationally during this time can pose significant risks and result in delays, depending on whether you are in an ongoing course of study or period of optional practical training (OPT) or whether you are in the “cap gap” – the period between the end of your course of study or OPT and October 1, the date that a timely-filed H-1B petition and change of status will take effect. 

If you cannot postpone travel until after October 1, you should be aware that you may not be able to reenter the United States in F-1 status during the months before your H-1B petition takes effect. Instead, you may need to wait outside the United States and apply for an H-1B visa to reenter in time for your H-1B employment start date. If you do decide to travel abroad, you must make sure to have all necessary travel documents and be prepared for possible delays at U.S. consulates and ports of entry.

The following are some frequently asked questions and important tips to consider if you are thinking about leaving the United States before October 1. 

1. My H-1B petition and application to change status to H-1B have been filed and are pending with USCIS. May I travel internationally while they are pending? 

If you leave the United States before your change of status is approved by USCIS, you will have to take extra steps to assume your H-1B status on October 1.

According to a longstanding government policy, if you travel abroad while your H-1B petition and request to change status are being processed, the change of status portion of your case will be considered abandoned. USCIS could still approve the H-1B petition itself, but you would not automatically change to H-1B status on October 1. Instead, you would have to leave the United States again and apply for an H-1B visa at a U.S. consulate or, if otherwise permissible, have your employer submit a new petition to change status to H-1B after your return. If you apply for an H-1B visa abroad, you could be subject to a long wait overseas during the visa application process, which could delay your return to the United States and your ability to begin your H-1B employment on time. See below for more information about the visa application process. 

2. I am an F-1 student who is still in school and I am not applying for optional practical training. After my H-1B petition and application to change status are approved, can I travel abroad before October 1? 

After your change of status is approved but before it takes effect on October 1, you should be able to travel abroad and reenter, as long as your course of study is not finished and you are coming back to the United States to resume your studies. (If you will be finished with school by the time you travel, see Question 3.) 

When you travel, make sure you are carrying a valid passport with a valid F-1 visa stamp and a Form I-20 that is endorsed for travel. If your F-1 visa is no longer valid and you will need to get a new one to reenter in F-1 status, you should expect delays during the visa application process. If you have an approved H-1B petition, it may be difficult for you to demonstrate nonimmigrant intent, which is a requirement for F-1 students. See Question 6 for more information about these issues. 

3. I am finished with my F-1 course of study and I am not applying for optional practical training. After my H-1B petition and change of status are approved, will I be able to travel abroad? 

You cannot return to the United States in F-1 status if you travel abroad after your studies are finished. As long as your H-1B petition was filed before your F-1 student status expired, you can remain in the United States during the cap gap period between the end of your F-1 period of stay (including 60-day grace period) and October 1. But an F-1 student who travels abroad during the grace period or the cap gap cannot be readmitted to the United States in F-1 status. If you must leave the United States, you will have to apply for an H-1B visa to return, and will not be able to work until October 1. See Question 7 for more information about H-1B visa application procedures and delays. 

4. I am a J-1 exchange visitor who is the beneficiary of an approved H-1B petition for employment starting October 1, 2014. May I remain in the United States until then? 

It depends. As a J-1 exchange visitor, you are authorized to remain in the United States for the duration of your exchange program, plus a grace period of 30 days. If your J-1 period of stay and grace period end before September 30, 2014, you must depart the United States and apply for an H-1B visa abroad. You are not eligible for a change of status to H-1B because there will be a gap between the end of your period of authorized stay and the day your H-1B petition takes effect. Unlike F-1 students, J-1 exchange visitors are not eligible for cap gap benefits. 

However, if your J-1 period of stay (including grace period) remains valid through the start date of your approved H-1B petition and application to change status to H-1B, you may remain in the United States in J-1 status before your change of status takes effect. 

5. I am an F-1 student awaiting a change of status to H-1B and my OPT has expired. If I travel before October 1, what are the risks? 

If you travel abroad after your OPT has expired, you cannot return to the United States in F-1 status. As long as your H-1B petition was filed before your OPT expired, you can remain in the United States and work during the cap gap period between the end of OPT and October 1. But if you have completed studies and OPT and you travel abroad during the cap gap, you cannot be readmitted to the United States in F-1 status. 

If you must leave the United States, you will have to wait to apply for an H-1B visa to return. You will not be able to work again in the United States until October 1. See Question 7 for more information about H-1B visa application procedures and delays. 

6. I am currently in a valid period of OPT and I have a valid employment authorization document. Is international travel possible if my change of status petition has been approved? 

Yes, if you are in valid OPT, have a valid EAD and your change of status to H-1B has been approved before you leave, you should be able to return to the United States in F-1 status, as long as you have the appropriate documents and are able to show visa and immigration officers that you intend to comply with F-1 rules, including having nonimmigrant intent. If your H-1B change of status is approved before you depart the United States, the change of status will take effect on October 1 as long as you have returned to the United States before that day. 

You will need the following documents to reenter in F-1 status:

§  A valid passport with a valid F-1 visa stamp. If you need to apply for a new F-1 visa stamp to reenter the United States as a student, you should expect delays at the U.S. consulate and at the port of entry (see Question 7 for more details);

§  A Form I-20 that is endorsed for travel by a designated school official;

§  A valid EAD. If you are applying for an extension of your OPT on the basis of a degree in a designated science, technology, engineering or mathematics (STEM) field, you should not leave the United States until you receive your new EAD for the extension period; and

§  A letter from your OPT employer that verifies your employment. You must have an OPT job or job offer before you leave the United States. If you go abroad before you find a job, your OPT period will be terminated and you will not be able to return to the United States unless and until you obtain an H-1B visa.

If you travel abroad while on OPT, caution is advised. In particular, pay attention to the number of days you spend outside the United States, because that time could be counted against the regulatory limit on unemployment during the OPT period. USCIS rules require an F-1 student to have no more than 90 days of unemployment during OPT (or 120 days for F-1s who have received an OPT extension based on a STEM degree). This includes time spent outside the United States, unless international travel takes place during leave that is authorized by your OPT employer or is part of your OPT employment. 

7. Before October 1, I plan to leave the United States and reenter in my F-1 status, but I will need to apply for a new F-1 visa while I am abroad. What should I expect during the visa application process and at the port of entry? 

You should be prepared for possible delays and difficulties when you apply for a new F-1 visa and when you are inspected at the border. 

First, like any visa applicant, you could be required to go through a security clearance before your visa can be issued. If your name, personal details or travel history match or are similar to information in government security databases or travel watch lists, the State Department will not be able to issue a visa until it confirms that you are not the same person as an individual who appears on a security list. Many security clearances get resolved in a matter of weeks, but if you have a common name, your clearance could take several months or longer. If this occurs, your reentry to the United States could be delayed. 

Second, officials at U.S. consulates and the U.S. border may question whether you have nonimmigrant intent, i.e., whether you genuinely intend to return to your home country. Having a foreign residence that you do not intend to abandon is a requirement for F-1 status. If you have an approved H-1B in the system, consular and border officials will know that you have a professional job in the United States – a possible indication of strong ties to the United States. If a consular or border officer questions your intentions, you could have your visa or entry denied or delayed, and may have to wait overseas until you can apply for an H-1B visa to enter and start your H-1B employment. Having a foreign residence is not a requirement for an H-1B visa. 

8. If I decide to leave the United States before October 1, how soon can I apply for my H-1B visa and enter the United States in H-1B status? 

You can generally apply for your visa up to 90 days before your H-1B petition start date, according to State Department rules. If your start date is October 1, 2014, you would be able to apply for your H-1B visa no earlier than July 3, 2014. But procedures differ among U.S. consulates, so you should check with the consulate where you will apply for specific instructions on when you can submit your visa application. Contact information for U.S. embassies and consulates is available at http://usembassy.gov/.  

Once you have applied for your H-1B visa, be prepared for a possible security clearance. As discussed in Question 7, if your name, personal details or travel history match information in government security databases or on travel watch lists, the State Department will not be able to issue your visa until it confirms that you are not the same person as a listed individual. A security clearance may also be required if you will work in high technology, engineering or the sciences, or with products or services that have both commercial and military applications (known as "dual use" technologies). Security clearances typically get resolved in a matter of weeks, but can take several months or longer depending on the circumstances. 

Once you have received your H-1B visa, you may enter the United States up to ten days before your H-1B petition start date. If your start date is October 1, 2014, you can enter as early as September 21, 2014. The extra ten days allows you to get settled in the United States, but you cannot do H-1B work during this time. You are not authorized to start your H-1B employment until your actual petition start date. 

USCIS April Processing Time Reports

From Council for Global Immigration, 04/10/2014

On April 3, 2014, USCIS issued updated processing time reports as of February 28, 2014 for the Vermont Service Center (VSC), California Service Center (CSC), Texas Service Center (TSC), Nebraska Service Center (NSC) and the National Benefits Center (NBC).

As USCIS is beginning to process H-1B cap cases, the agency is reporting that all H-1Bs filed before cap cases arrived are being processed in 2 months at both CSC and VSC.  This should not be taken as any indication of how quickly cap cases will be processed – we expect that processing times will be similar to last year for cap cases.

Processing has picked up considerably for Ls at VSC, but there is still a small delay.  The processing date advanced from August 28, 2013 in the March report to January 16, 2014 in the April report.  This is still a processing time of one and a half months for Ls at VSC, but that is a considerable improvement over the prior processing time of over five months.  Blanket Ls continue to be processed in two months at VSC.  CSC continues to process standard L visas in one month and Blanket Ls in two months.

At NSC, the processing date for EB-1 extraordinary ability petitions, EB-2 petitions and EB-3 petitions advanced exactly one month to October 2, 2013 for a processing time of almost five months. The processing date for EB-1 multinational managers and executives also advanced exactly one month to September 2, 2013 for a processing time of almost six months. The processing time for EB-1 outstanding professors and researchers is four months.  Adjustments of status at NSC continue to be processed in 4 months.

All I-140s at TSC continue to be processed in 4 months.  However, employment based adjustments of status at TSC continue to lag with a processing date of September 7, 2013 - a processing time of nearly 6 months.

NBC continues to process I-765 employment authorization applications in 3 months.

Please click here to access the processing times for the VSC, CSC, TSC, NSC, and the NBC.

Proposed Rules on Work Authorization for Certain H-1B Dependents and Others Expected to Advance

From Fragomen.com, 04/10/2014

Two highly anticipated proposed regulations will soon advance to the next stage of the federal regulatory process, the White House announced earlier this week. The rules seek to allow H-4 dependents of certain H-1B foreign nationals to seek work authorization and to extend the work authorization of E-3 and H-1B1 employees awaiting the approval of a timely-filed extension petition. 

The draft H-4 rule is expected to propose eligibility for employment authorization for the dependent spouses of H-1B nonimmigrants who are beneficiaries of extensions past their six-year time limit. Post-6th year extensions are available in certain circumstances to H-1B employees with long-pending employment-based permanent residence sponsorship cases. Under current law, H-4 foreign nationals are not eligible to apply for employment authorization pursuant to their nonimmigrant status. 

A separate rule is expected to extend employment authorization for 240 days beyond the period specified on an E-3 or H-1B1 nonimmigrant’s Form I-94 arrival record, as long as the foreign national is the beneficiary of a timely application to extend status filed by the same employer. Under current rules, this 240-day extension is available to qualifying H-1B, L-1 and certain other nonimmigrants, but not to E-3s or H-1B1s. 

Both proposals have been pending at the Office of Management and Budget (OMB) for several months. Once they initially clear OMB, they will be published as Notices of Proposed Rulemaking with a public comment period of at least 30 days and additional time for DHS to consider comments. The rules will not be implemented until after they receive final approval from OMB -- a process that could take several months or more for each rule. 

The exact contents of the two proposed rules will remain confidential until they are published in the Federal Register. Abstracts of the H-4 and 240-day extension of employment authorization proposed rules are available at the OMB website. 

The proposals are part of the Obama Administration’s Startup America Initiative, which was begun in 2011 and includes plans to implement administrative reforms at the Department of Homeland Security to attract and retain highly skilled foreign nationals. 

What This Means for Employers and Foreign Nationals 

If implemented, the rules would give some – but by no means all – spouses of H-1B employees the opportunity to work in the United States and would help E-3 and H-1B1 employees avoid work interruption when an application for an extension of stay is pending past their initial period of stay in the United States. 

Travel Advisory for Foreign Students Planning a Change of Status to H-1B

Please note this is information targeted to individuals who will be working in H-1B status at a cap-subject employer!

From Fragomen.com, 03/03/2014

Are you an F-1 student who will be the beneficiary of an H-1B cap petition and change of status for employment starting on October 1, 2014? If so, you will need to be aware of some important issues to consider if you are planning to travel abroad between the filing of your cap petition in early April and an October 1 H-1B employment start date. 

Traveling internationally while you are awaiting a change of status from F-1 to H-1B can pose some significant risks and result in delays, depending on whether you are still completing your studies or optional practical training (OPT) or whether you are in the “cap gap” – the period between the end of your course of study or OPT and October 1. 

If you cannot postpone travel until after October 1, you should be aware that you may not be able to reenter the United States in F-1 status during the months before your H-1B petition takes effect. Instead, you may need to wait outside the United States and apply for an H-1B visa to reenter in time for your H-1B employment start date. If you do decide to travel abroad, you must make sure to have all necessary travel documents and prepare for possible delays at U.S. consulates and ports of entry. 

The following are some frequently asked questions and important tips to consider if you are thinking about leaving the United States before October 1. 

1. Once my H-1B petition and application to change status to H-1B have been filed and are pending with USCIS, may I travel internationally while they are pending? 

If you leave the United States after your change of status is filed with USCIS but before it is approved by USCIS, you will have to take extra steps to assume your H-1B status on October 1. 

According to a longstanding government policy, if you travel abroad while your H-1B petition and request to change status are being processed, the change of status portion of your case will be considered abandoned. USCIS could still approve the H-1B petition itself, but you would not automatically change to H-1B status on October 1. Instead, you would have to leave the United States again and apply for an H-1B visa at a U.S. consulate or, if otherwise permissible, have your employer submit a new petition to change status to H-1B after your return. If you apply for an H-1B visa abroad, you could be subject to a long wait overseas during the visa application process, which could delay your return to the United States and your ability to begin your H-1B employment on time. See below for more information about the visa application process. 

2. I am an F-1 student who is still in school and I am not applying for optional practical training. After my H-1B petition and application to change status are approved, can I travel abroad before October 1? 

After your change of status is approved but before it takes effect on October 1, you should be able to travel abroad and reenter, as long as your course of study is not finished and you are coming back to the United States to resume your studies. (If you will be finished with school by the time you travel, see Question 3.) 

When you travel, make sure you are carrying a valid passport with a valid F-1 visa stamp and a Form I-20 that is endorsed for travel. If your F-1 visa is no longer valid and you will need to get a new one to reenter in F-1 status, you should expect delays during the visa application process. If you have an approved H-1B petition, it may be difficult for you to demonstrate nonimmigrant intent, which is a requirement for F-1 students. See Question 7 for more information about these issues. 

3. I will soon be finished with my F-1 course of study and I am not applying for OPT. After my H-1B petition and change of status are approved, will I be able to travel abroad? 

You cannot return to the United States in F-1 status if you travel abroad after your studies are finished. As long as your H-1B petition was filed before your F-1 student status expired, you can remain in the United States during the cap gap period between the end of your F-1 period of stay (including 60-day grace period) and October 1. But an F-1 student who travels abroad during the grace period or the cap gap cannot be readmitted to the United States in F-1 status. If you must leave the United States, you will have to apply for an H-1B visa to return, and will not be able to work until October 1. See Question 7 for more information about H-1B visa application procedures and delays. 

4. I am a J-1 exchange visitor who will be the beneficiary of an approved H-1B petition for employment starting October 1, 2014. May I remain in the United States until then? 

It depends. As a J-1 exchange visitor, you are authorized to remain in the United States for the duration of your exchange program, plus a grace period of 30 days. If your J-1 period of stay and grace period end before September 30, 2014, you must depart the United States and apply for an H-1B visa abroad. You are not eligible for a change of status to H-1B because there will be a gap between the end of your period of authorized stay and the day your H-1B petition takes effect. Unlike F-1 students, J-1 exchange visitors are not eligible for cap gap benefits. 

However, if your J-1 period of stay (including grace period) remains valid through the start date of your approved H-1B petition and application to change status to H-1B, you may remain in the United States in J-1 status before your change of status takes effect. 

5. I am an F-1 student whose OPT will expire before October 1. If I travel abroad before October 1, what are the risks? 

If you travel abroad after your OPT has expired, you cannot return to the United States in F-1 status. As long as your H-1B petition was filed before your OPT expired, you can remain in the United States and work during the cap gap period between the end of OPT and October 1. But if you have completed studies and OPT and you travel abroad during the cap gap, you cannot be readmitted to the United States in F-1 status. 

If you must leave the United States, you will have to wait to apply for an H-1B visa to return. You will not be able to work again in the United States until October 1. See Question 7 for more information about H-1B visa application procedures and delays. 

6. I am currently in a valid period of OPT and I have a valid employment authorization document. Is international travel possible once my change of status petition is approved? 

Yes, if you are in valid OPT, have a valid EAD and your change of status to H-1B has been approved before you leave, you should be able to return to the United States in F-1 status, as long as you have the appropriate documents and are able to show visa and immigration officers that you intend to comply with F-1 rules, including having nonimmigrant intent. If your H-1B change of status is approved before you depart the United States, the change of status will take effect on October 1 as long as you have returned to the United States before that day. 

You will need the following documents to reenter in F-1 status: 

• A valid passport with a valid F-1 visa stamp. If you need to apply for a new F-1 visa stamp to reenter the United States as a student, you should expect delays at the U.S. consulate and at the port of entry (see Question 7 for more details); 
• A Form I-20 that is endorsed for travel by a designated school official; 
• A valid EAD. If you are applying for an extension of your OPT on the basis of a degree in a designated science, technology, engineering or mathematics (STEM) field, you should not leave the United States until you receive your new EAD for the extension period; and 
• A letter from your OPT employer that verifies your employment. You must have an OPT job or job offer before you leave the United States. If you go abroad before you find a job, your OPT period will be terminated and you will not be able to return to the United States unless and until you obtain an H-1B visa.

If you travel abroad while on OPT, caution is advised. In particular, pay attention to the number of days you spend outside the United States, because that time could be counted against the regulatory limit on unemployment during the OPT period. USCIS rules require an F-1 student to have no more than 90 days of unemployment during OPT (or 120 days for F-1s who have received an OPT extension based on a STEM degree). This includes time spent outside the United States, unless international travel takes place during leave that is authorized by your OPT employer or is part of your OPT employment. 

7. Before October 1, I plan to leave the United States and reenter in my F-1 status, but I will need to apply for a new F-1 visa while I am abroad. What should I expect during the visa application process and at the port of entry? 

You should be prepared for possible delays and difficulties when you apply for a new F-1 visa and when you are inspected at the border. 

First, like any visa applicant, you could be required to go through a security clearance before your visa can be issued. If your name, personal details or travel history match or are similar to information in government security databases or travel watch lists, the State Department will not be able to issue a visa until it confirms that you are not the same person as an individual who appears on a security list. Many security clearances get resolved in a matter of weeks, but if you have a common name, your clearance could take several months or longer. If this occurs, your reentry to the United States could be delayed. 

Second, officials at U.S. consulates and the U.S. border may question whether you have nonimmigrant intent, i.e., whether you genuinely intend to return to your home country. Having a foreign residence that you do not intend to abandon is a requirement for F-1 status. If you have an approved H-1B in the system, consular and border officials will know that you have a professional job in the United States – a possible indication of strong ties to the United States. If a consular or border officer questions your intentions, you could have your visa or entry denied or delayed, and may have to wait overseas until you can apply for an H-1B visa to enter and start your H-1B employment. Having a foreign residence is not a requirement for an H-1B visa. 

8. If I decide to leave the United States before October 1, how soon can I apply for my H-1B visa and enter the United States in H-1B status? 

You can generally apply for your visa up to 90 days before your H-1B petition start date, according to State Department rules. If your start date is October 1, 2014, you would be able to apply for your H-1B visa no earlier than July 3, 2014. But procedures differ among U.S. consulates, so you should check with the consulate where you will apply for specific instructions on when you can submit your visa application. Contact information for U.S. embassies and consulates is available at http://usembassy.gov/.  

Once you have applied for your H-1B visa, be prepared for a possible security clearance. As discussed in Question 7, if your name, personal details or travel history match information in government security databases or on travel watch lists, the State Department will not be able to issue your visa until it confirms that you are not the same person as a listed individual. A security clearance may also be required if you will work in high technology, engineering or the sciences, or with products or services that have both commercial and military applications (known as "dual use" technologies). Security clearances typically get resolved in a matter of weeks, but can take several months or longer depending on the circumstances. 

Once you have received your H-1B visa, you may enter the United States as early as September 21, 2014 for employment that starts on October 1. The extra ten days allows you to get settled in the United States, but you cannot do H-1B work during this time. You are not authorized to start your H-1B employment until your actual petition start date.