News from the Alliance of Business Immigration Lawyers Vol. 10, No. 4B • April 15, 2014
Headlines:
1. H-1B Cap Reached for FY 2015 – USCIS received about 172,500 H-1B petitions during the filing period that began April 1, including petitions filed for the advanced degree exemption.
2. White House To Propose New Regs, Steps To Attract Entrepreneurs – Among other things, proposed regulations will include rules authorizing employment for spouses of certain high-skill workers on H-1B visas and enhancing opportunities for outstanding professors and researchers.
3. Pro Bono Success Story: Kuck Immigration Partners – Kuck Immigration Partners recently handled a pro bono case for a mentally ill client who was being detained at the Stewart Detention Center (SDC) in Lumpkin, Georgia.
4. New Publications and Items of Interest – New Publications and Items of Interest
5. Member News – Member News
6. Government Agency Links – Government Agency Links
Details:
1. H-1B Cap Reached for FY 2015
U.S. Citizenship and Immigration Services (USCIS) announced that the fiscal year (FY) 2015 H-1B cap was reached as of April 7, 2014. The agency will reject and return with the filing fees non-duplicate cap-subject petitions that were not selected.
USCIS received about 172,500 H-1B petitions during the filing period that began April 1, including petitions filed for the advanced degree exemption. On April 10, 2014, USCIS completed a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and 20,000 cap under the advanced-degree exemption. The agency conducted the selection process first for the advanced-degree exemption. All advanced-degree petitions not selected then became part of the random selection process for the 65,000 limit.
USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap will not be counted toward the congressionally mandated FY 2015 H-1B cap. USCIS will continue to accept and process petitions filed to:
- extend the amount of time a current H-1B worker may remain in the United States;
- change the terms of employment for current H-1B workers;
- allow current H-1B workers to change employers; and
- allow current H-1B workers to work concurrently in a second H-1B position.
Premium processing. USCIS also announced that it would begin premium processing for H-1B cap cases by April 28, 2014. USCIS provides premium processing service for certain employment-based petitions and guarantees a 15-calendar-day processing time.
USCIS will continue to accept Form I-907, Request for Premium Processing Service, with fee, concurrently with the Form I-129, Petition for a Nonimmigrant Worker, while premium processing is unavailable. Petitioners may also upgrade a pending H-1B cap petition to premium processing once USCIS issues a receipt notice.
While the Form I-797, Notice of Action (receipt notice), indicates the date USCIS received the premium processing fee, the 15-day processing period will begin by April 28. This allows USCIS to take in the anticipated high number of filings, conduct the lottery to determine which cases meet the cap, and prepare the volume of cases for premium and regular processing.
The 15-day processing period for premium processing service for H-1B petitions that are not subject to the cap, or for any other eligible classification, continues to begin on the date that the request is received.
F-1 students and the “cap-gap.” The period of time when an F-1 student’s status and work authorization expire through the start date of his or her approved H-1B employment period is known as the “cap-gap.”
The cap-gap occurs because an employer may not file, and USCIS may not accept, an H-1B petition submitted more than six months in advance of the date of actual need for the beneficiary’s services or training. As a result, the earliest date that an employer can file an H-1B cap-subject petition is April 1, for the following fiscal year, starting October 1. If USCIS approves the H-1B petition and the accompanying change of status request, the earliest date that the student may start the approved H-1B employment is October 1.
Current regulations allow certain students with pending or approved H-1B petitions to remain in F-1 status during the cap-gap period. 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 if F-1 status is not extended for qualifying students.
INFORMATION ON PREMIUM PROCESSING
2. White House To Propose New Regs, Steps To Attract Entrepreneurs
The Obama administration released a fact sheet on April 7, 2014, summarizing efforts to strengthen entrepreneurship, including a series of proposed regulations and other steps.
Among other things, the Department of Homeland Security is set to publish soon several proposed rules intended to make the United States more attractive to talented foreign entrepreneurs and other high-skill immigrants. The proposed regulations will include rules authorizing employment for spouses of certain high-skill workers on H-1B visas and enhancing opportunities for outstanding professors and researchers.
Also planned is the launch of “Entrepreneur Pathways,” an online resource center “that gives immigrant entrepreneurs an intuitive way to navigate opportunities to start and grow a business in the United States,” the fact sheet says.
Additionally, the Department of State will launch two new exchange programs for entrepreneurs in the Western hemisphere. The Small Business Network of the Americas (SBNA) Fellowship Program will connect incubators across the hemisphere “to share best practices in entrepreneurial development and unlock market access for small businesses across the region,” the fact sheet states. The Professional Fellows Program will bring Salvadoran, Guatemalan, and U.S. officials together for a six-week internship and training program focusing on professional development, problem-solving, and networking.
3. Pro Bono Success Story: Kuck Immigration Partners
This is the second installment of a new feature: pro bono success stories from Alliance of Business Immigration Lawyers firms. Today’s story is from Kuck Immigration Partners.
Kuck Immigration Partners recently handled a pro bono case for a mentally ill client who was being detained at the Stewart Detention Center (SDC) in Lumpkin, Georgia. The client had been detained for almost 5 months by U.S. Immigration and Customs Enforcement (ICE).
Kuck Immigration Partners attempted to obtain an adequate mental health evaluation and to secure his release on humanitarian grounds, but ICE rejected these efforts. After witnessing the client’s mental deterioration, Kuck Immigration Partners filed a federal habeas corpus petition arguing that the client’s prolonged detention and exposure to solitary confinement violated the U.S. Constitution. Before the petition was scheduled to be heard in federal court, ICE released the client for humanitarian reasons.
Managing Partner Charles H. Kuck expressed his gratitude to the U.S. Attorney’s office in Columbus, Georgia, for their direct involvement in finding a workable solution to the client’s continued detention before the federal court hearing. Since his release, the client’s prior reinstatement of an order of removal has been vacated, and he has been served with a Notice to Appear in immigration court at a future date.
The case was especially rewarding because the client should now be able to receive treatment for his medical needs, and will have the support of his U.S. citizen wife and children as he prepares his asylum claim based on persecution he suffered due to his status as a former Mexican police officer.
4. New Publications and Items of Interest
Several ABIL members co-authored and edited the Global Business Immigration Practice Guide, released by LexisNexis. The Practice Guide is a one-stop resource for dealing with questions related to business immigration issues in immigration hotspots around the world.
Latchi Delchev, a global mobility and immigration specialist for Boeing, called the guide “first-rate” and said the key strong point of the book is its “outstanding usability.” She said she highly recommends the book and notes that it “is helpful even to seasoned professionals, as it provides a level of detail which is not easily gained from daily case management.
Mireya Serra-Janer, head of European immigration for a multinational IT company, says she particularly likes “the fact that the [guide] focuses not just on each country’s immigration law itself but also addresses related matters such as tax and social security issues.” She noted that the India chapter “is particularly good. The immigration regulations in India have always been hard to understand. Having a clear explanation of the rules there helps us sort out many mobility challenges.’
This comprehensive guide is designed to be used by:
- Human resources professionals and in-house attorneys who need to instruct, understand, and liaise with immigration lawyers licensed in other countries;
- Business immigration attorneys who regularly work with multinational corporations and their employees and HR professionals; and
- Attorneys interested in expanding their practice to include global business immigration services.
- An overview of the immigration law requirements and procedures for over 20 countries;
- Practical information and tips for obtaining visas, work permits, resident status, naturalization, and other nonimmigrant and immigrant pathways to conducting business, investing, and working in those countries;
- A general overview of the appropriate options for a particular employee; and
- Information on how an employee can obtain and maintain authorization to work in a target country.
Each chapter follows a similar format, making it easy to compare practices and procedures from country to country. Useful links to additional resources and forms are included. Collected in this Practice Guide, the expertise of ABIL’s attorney members across the globe will serve as an ideal starting point in your research into global business immigration issues.
Order HERE. International customers who do not want to order through the bookstore can order through Nicole Hahn at (518) 487-3004 or [email protected].
ABIL on Twitter. The Alliance of Business Immigration Lawyers is now available on Twitter: @ABILImmigration. Recent ABIL member blogs are available on the ABIL Blog.
5. Member News
Cyrus Mehta has published a new blog entry. “Why We Should All Be Mad About the H-1B Visa Cap”
Stephen Yale-Loehr was quoted in an article on the H-1B cap being reached in the first week petitions were accepted. Mr. Yale-Loehr noted that even the higher numbers of H-1B visas proposed in legislation might not be enough to meet demand. He said the number of H-1B petitions filed “ebbs and flows depending on the economy” but noted that the fact that employers must rely on a lottery to determine whether they can hire the workers they want “shows how broken our immigration system is.” The article was published on April 7, 2014, in Bloomberg BNA Daily Labor Report.
Mr. Yale-Loehr was quoted on CNN Politics in an article about the Obama administration and immigration reform. He noted, “I think the President has a difficult decision to make here. The courts have upheld wide discretion on immigration matters. He could make noncriminals the lowest deportation priorities. … But there is a penalty he could pay through using executive action rather than waiting for Congress to act on immigration reform.”
6. Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:
USCIS Service Center processing times online
Department of Labor processing times and information on backlogs
Department of State Visa Bulletin