Recap: 2015 Was a Busy Year for Employment Based Immigration!
2015 was an eventful year in employment based immigration. So here is a look back at a few things, some better than others, that occurred:
- H-4 EAD Rule Approved: The approval of this rule was a great start for 2015. Remember, H-4 dependents who meet certain requirements can apply for an Employment Authorization Document (EAD). For more information, please visit: http://theimmigrationfiles.com/2015/03/h-4-ead-specifics/
- AAO says H-1B Amendment Required for Change in Work Location: The AAO issued a decision in April requiring that an amended H-1B petition be filed if there is a change in work location that would require a new Labor Condition Application to be filed. This decision created some headaches, especially for consulting companies. For more information, please visit: http://theimmigrationfiles.com/2015/07/uscis-final-guidance-on-h-1b-amended-petition-for-change-in-work-location/
- Court Rules OPT STEM Extension Rule is invalid: This was and continues to be problematic. As many of you remember, earlier this year, a D.C Federal District Court held that the OPT 17 month STEM extension rule enacted in 2008 was deficient because the Department of Homeland Security (DHS) did not go through the proper notice and comment period before the rule went into effect. The court vacated the rule, but ordered that the decision would not take effect until February 12, 2016. The court reasoned that this would give DHS enough time to try and rectify the situation by submitting the rule for the proper notice and comment.
- The new proposed rule was published on October 19, 2015. DHS received more than 50,000 comments during the comment period and is now currently reviewing those comments. DHS explained that this amount of public comments was unprecedented. Once reviewed and decided upon, DHS will publish a final rule. After the final rule is published, there will be a 60 day period before the rule can take effect. This will most certainly put us beyond the February 12, 2016 date.
- Currently, DHS has requested that the court issue an extension of stay from the original February 12th date to May 10th, 2016 in order to alleviate the substantial hardship on foreign students and the tech industry. In response to this request, the plaintiff in the case, Washtech (Washington Alliance of Technology Workers v. DHS), has asked for an extension of time to respond to DHS request to issue the extension of stay.
- New and Supposedly “Improved” Visa Bulletin Out, but No Early I-485 Filings for Most Afterall: This, in my opinion, was the biggest disappointment of 2015. As you most certainly recall, in September 2015, a new and “improved” visa bulletin was released and was to take effect on October 01, 2015. This new visa bulletin was going to offer some relief to beneficiaries (especially those born in India and China) of approved employment based immigrant petitions that have been negatively impacted by the backlog in certain visa categories. There was so much excitement surrounding this news. But on September 25th, just days before the new visa bulletin was to take effect, a revised visa bulletin was released and superseded the originally published bulletin. Based on the revised visa bulletin, many people who were ready to file their adjustment applications were not able to move forward. Much hope, time, effort, and money… lost. For more information, please visit: http://theimmigrationfiles.com/2015/09/revised-october-2015-visa-bulletin-released-effects-aos-filing-eligibility/
- H-1B and L-1 Fee Increase: The President signed a bill that would fund the government through next Fall. As part of the budget deal, a new fee was implemented for some H-1B and L-1 filings. Before September 2015, some employers had to pay an additional $2,000 fee for H-1B petitions and $2,500 for L-1 petitions. Further, this additional fee was only for initial petitions, which means they did not apply to extensions. Now, the fee has increased to $4,000 for certain H-1B petitions and $4,500 for certain L-1 petitions and will also apply to extensions filed. This fee hike applies to petitions filed by companies with more than 50 employees in the U.S., where at least 50% of the company’s employees are in H-1B or L-1 status.
- Proposed Rule Published on Improvements for High-Skilled Employment-Based Visa Applicants: On December 30, 2015, a proposed rule was published that would provide various benefits to certain employment based immigrant and non-immigrant workers. Some of the benefits provided in the proposed rule are as follows:
- The proposed rule would amend the current regulations so that EB-1, EB-2, and EB-3 immigrant visa petitions that have been approved for 180 days or more would no longer have an approved I-140 petition automatically revoked based only on withdrawal by the petitioner or termination of the petitioner’s business. Just as before, the approved I-140 cannot be transferred to another employer, but it can be used to extend H-1B status beyond the 6 year limit. You would still need a new I-140 approved with a new employer to file for adjustment of status
- The proposed rule calls for a one time 60 day grace period for certain non-immigrant workers (E, H-1B, L-1, TN status) or until the end of their authorized validity period, whichever is shorter. This grace period would apply whenever employment ends so that individuals, for instance, have a chance to seek new employment.
- The proposed rule would allow under “compelling circumstances” the beneficiary of an I-140 and the dependent family members to apply for employment authorization for 1 year. This standard is very restrictive and thus would not serve to benefit many individuals. DHS has currently identified four circumstances in which it may consider granting employment authorization under the proposed change: (1) Serious Illnesses and Disabilities, (2) Employer Retaliation, (3) Other Substantial Harm to the Applicant, and (4) Significant Disruption to the Employer. Use of this benefit “would require the worker to relinquish his or her nonimmigrant status , thus restricting his or her ability to change nonimmigrant status or adjust status to that of lawful permanent resident.” For instance, accepting the EAD “would generally require the worker to forego adjusting status in the United States and instead seek an immigrant visa abroad through consular processing.” Further, the only way to renew the EAD is if the individual’s priority date is less than 1 year from the current cut-off date.
- DHS proposes to automatically extend the validity of expiring EADs for up to 180 days under certain situations based on a timely filing of a renewal application. For instance, for those who have a pending adjustment of status application, this could allow them to continue to work for up to 180 days while the EAD renewal application is pending, even after the EAD has expired.
- For the entire proposed rule, please see: Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers
2015 was a crazy year for immigration, but we got through it as we always do. I am optimistic about the future and can’t wait to experience 2016 with you all!