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H-1B Cap reached, lottery triggered

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News Release from Jewell Stewart & Pratt PC

U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2017. USCIS has also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the U.S. advanced degree exemption. USCIS will not accept H-1B petitions subject to the FY 2017 cap or the advanced degree exemption after today.

USCIS will use a computer-generated random selection process (commonly known as the “lottery”) for all FY 2017 cap-subject petitions received through April 7, 2016. The agency will conduct the selection process for advanced degree exemption petitions first. All advanced degree petitions not selected will be part of the random selection process for the 65,000 limit. Due to the high number of petitions received, USCIS is not yet able to announce the exact day of the random selection process.

USCIS is expected to provide more detailed information about the H-1B cap soon.

© Jewell Stewart & Pratt PC 2016

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New regulation on F-1 STEM OPT extensions, effective May 10, 2016

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On March 11, 2016, the U.S. Department of Homeland Security published a Final Rule, effective May 10, 2016, 81 Fed. Reg. 13039 (March 11, 2016), that provides requirements and procedures for 24-month extensions to post-completion Optional Practical Training (OPT) work authorization of foreign nationals who are in F-1 student visa status with U.S. degrees in fields of Science, Technology, Engineering, and Mathematics (“STEM” fields). The new regulation also contains transition provisions for approved and pending STEM OPT applications filed under prior regulations. Finally, the new regulation carries over the “cap gap” work authorization and status extension provisions that existed under prior rules.

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STEM OPT cut-off of 02/12/2016 is postponed to 05/10/2016

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On January 23, 2016, the federal district court in Washington Alliance of Technology Workers v. U.S. Department of Homeland Security, No. 1:14-CV-00529 (ESH), Document 51 (D. D.C. January 23, 2016), granted a motion by the U.S. Department of Homeland Security to postpone the effective date of the court’s vacatur of DHS’s 2008 STEM OPT regulation from February 12, 2016 until May 10, 2016. In effect, this leaves existing grants of STEM OPT in place until May 10, 2016, and allows DHS temporarily (until May 10, 2016) to continue accepting STEM OPT applications under its 2008 rules. In the meantime, DHS is expected to review the ~50,500 comments it received in response to the proposed replacement regulation it published in October 2015 and to adopt a final rule governing STEM OPT.

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Visa Waiver Program eligibility changes

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The 2016 Consolidated Appropriations Act was signed into law on December 18, 2015.  In addition to funding the U.S. federal government through the 2016 fiscal year, it includes far-reaching, immediately effective changes to the Visa Waiver Program.  As background, citizens of the 38 countries participating in the Visa Waiver Program (“VWP”) may come to the United States as visitors for business or pleasure without first obtaining visitors’ (B-1 or B-2) visas in their passports.  They may visit the U.S. for periods of up to 90 days, provided that they are eligible for admission as visitors under applicable law.

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USCIS issues draft policy memo regarding job portability provisions of Immigration and Nationality Act

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The American Competitiveness in the Twenty-First Century Act of 2000 (AC21) addressed the problem of delays and backlogs in the employment-based immigrant visa process by permitting certain applicants for adjustment of status to change jobs or employers. (See our post on the subject here.) Employers of these individuals do not need to retest the labor market for the new position, or obtain new, approved petitions on their behalf, if the following criteria are satisfied:

  1. An immigrant visa petition (Form I-140) on behalf of the applicant has been approved, or was approvable when filed.
  2. A filed application to adjust status to permanent resident, filed on the basis of the I-140, remains unadjudicated after 180 days or more.
  3. The applicant’s new job is in the same or a similar occupational classification as the job for which the petition was filed.

Invalidation of STEM extensions for F-1 OPT work authorization: Further information

We recently posted about the U.S. District Court for the District of Columbia's invalidation of STEM extensions for F-1 OPT work authorization. The Department of Homeland Security has not yet indicated that it will reintroduce the STEM extension  rule in compliance with proper regulatory procedure. In the meantime, the American Immigration Lawyers Association (AILA)'s Leadership Blog has a new post from AILA President-Elect William Stock, which provides useful information and insight into likely developments. The blog post can be accessed here.

We will report further details as they become available.

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Instructions for the 2017 Diversity Visa Lottery Program now available

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News Release from Jewell & Associates, PC

The U.S. Department of State’s instructions for the 2017 Diversity Immigrant Visa Program (DV-2017) are now available. Entries for the DV-2017 program must be submitted electronically between October 1 and November 3, 2015.

There are no changes in eligibility this year. Eligibility requirements and entry instructions are on the U.S. Department of State’s DV lottery web site.

The congressionally mandated Diversity Immigrant Visa Program is administered annually by the Department of State under Section 203(c) of the Immigration and Nationality Act (INA). This law provides for a class of immigrants known as diversity immigrants, with visas made available to persons from countries with historically low rates of immigration to the United States. For fiscal year 2017, 50,000 diversity visas will be available.

© Jewell & Associates, PC 2015

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UPDATE: Government reissues October Visa Bulletin, rolls back 'Dates for Filing' for some visa application categories

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We posted here about recent changes to the way the U.S. Department of State determines immigrant visa availability under the statutory system of preference categories and per-country quotas. The Department's Visa Bulletin now provides two cut-off dates – one governing when an I-485 application to adjust status to permanent residence may be filed ('Dates for Filing Applications') and one governing when a pending I-485 may be approved.

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UPDATE: State Department changes the way it determines immigrant visa availability

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News Release from Jewell & Associates, PC We previously posted here about unconfirmed reports of a possible change to the way the U.S. Department of State determines immigrant visa availability under the statutory system of preference categories and per-country quotas. These changes have now been confirmed in a post on the U.S. Citizenship & Immigration Services website.

Instead of a single cut-off date for each country of chargeability in each preference category, the monthly State Department Visa Bulletin now provides two cut-off dates – one governing when an I-485 application to adjust status to permanent residence may be filed (“Dates for Filing Applications”) and one governing when a pending I-485 may be approved (“Application Final Action Dates”). This new system has been implemented in time for the October 2015 visa bulletin.

The net effect of this change is to make the benefits of a pending I-485 application – including portability of the permanent residence process under the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) – available to prospective immigrants sooner than under the prior system.

© Jewell & Associates, PC 2015

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State Department may change the way it determines immigrant visa availability

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News Release from Jewell & Associates, PC According to a news item posted online on September 3, 2015 by the National Law Review, there may soon be a change to the way the U.S. Department of State determines immigrant visa availability under the statutory system of preference categories and per-country quotas.  Instead of a single cut-off date for each country of chargeability in each preference category, the monthly State Department Visa Bulletin may begin providing two cut-off dates – one governing when an I-485 application to adjust status to permanent residence may be filed, and one governing when a pending I-485 may be approved.

The net effect would be to make the benefits of a pending I-485 application available sooner to prospective immigrants than under the current system.  We note that no official confirmation of this potential change has yet been provided.  We will report on further details as they become available.

© Jewell & Associates, PC 2015