Best wishes to all for a very Happy New Year and Healthy 2018! This newsletter has been prepared on behalf of clients and friends of the Law Offices of Robert Nadalin. It provides general information on recent changes in immigration and emigration related laws and should not be considered as a substitute for specific legal advice. For case specific advice, we recommend retaining legal counsel. To add or remove an e-mail address from our system, or for any other questions or comments regarding this newsletter, please e-mail: email@example.com .
Planning for the Upcoming H-1B Cap Filing Season
Now is the time to begin planning for the upcoming H-1B cap filing season. H-1B is the visa category most used by companies to obtain work authorization for professionals coming from other countries. Under the current law, 20,000 visas may be issued to persons who have obtained a master’s or higher degree from a U.S. university. 65,000 visas are allocated to other professionals. USCIS will begin accepting petitions for Fiscal Year (FY) 2019 H-1B visas from April 1, 2018. The soonest these visas can be used for work authorization will be October 1, 2018, which is the start of FY 2019.
In the past few years, the quota has been oversubscribed and the petitions received within the first 5 days of the filing season have been subjected to a lottery. This is also likely to be the case in the present year Please note that the cap only affects H-1B visa petitions filed on behalf of a foreign worker for the first time. H-1B extension cases, H-1B change of employer cases, or initial cases acknowledged as received by the CIS will not be affected. Further, some employees affected by the cap may have additional work visa options including F-1 practical training, TN, E, J, L, O-1 and even permanent resident visas. Other foreign workers may need to wait outside of the U.S., possibly at a foreign subsidiary, until new H-1B visas become available. As the available case options will be unique to each individual employee, we recommend that you contact our office for any specific questions that you may have regarding employees you may be considering for H-1B status.
Steps that Can Be Taken Proactively to Mitigate Immigration Process Risks for Key Foreign National Employees
The best way to mitigate the recent problems that have come with stricter case adjudications, visa stamp processing delays, “travel bans” and other related troubles, is to “move to higher ground” where possible. For example, a person with lawful permanent residence status may want to apply for naturalization to become a U.S. Citizen. A temporary work visa holder may want to obtain lawful permanent residence. A more secure status makes one less exposed to possible future changes in the laws or policy priorities. Employers may want to audit their I-9 records to confirm that the Company has an I-9 for all employees currently on payroll. Foreign nationals may also want to limit unnecessary travel abroad absent family or compelling business reasons.
Proactive steps may include moving employees in F-1, TN, or H-4 EAD status to H-1B status when possible. There have been many recent rumors about what may or may not change in 2018. In putting these matters in perspective, it is important to keep in mind that most significant changes would take months, or possibly years for the government to put in place. Some of the proposals, such as building walls and “extreme” enforcement would cost billions of dollars, which is money that would then not be available for other important purposes including roads and bridges and national defense. Some of the more extreme legislative proposals may be tempered by the fact that most members of the House of Representatives will be standing for re-election at the end of this year. Any change in U.S. immigration law would need to pass both houses of Congress and would need to be reviewed and signed by the President, which is a long and time consuming process, often taking many months and sometimes years. Any change in regulations would require the drafting of a proposed rule, a waiting period to allow public comment, followed by a final implementation of the rule, and possible litigation, which also takes many months and sometimes years to complete. Further, some visa benefits are based on international treaties. The oldest treaties providing immigration benefits date from the 1800s and also tie into other reciprocal benefits regarding trade and investment rights for U.S. businesses operating in other counties as well as protections for U.S. citizens traveling abroad for work or vacation.
In contrast to laws, treaties, and regulations, which take time to repeal, exit, or change, executive policies could be changed with the stroke of the President’s pen. The most prominent example is the DACA deferred action program which currently provides a temporary work card to children brought to the U.S. without documents but is in the process of being phased out unless Congress takes action to save the program in the next few months. Persons now in the U.S. in DACA status should consult with an immigration attorney about how changes in the DACA program will affect them.
Other administrative processing changes include the adjudication and enforcement postures that the Federal agencies take in applying the laws and regulations that are already in effect. This has already started happening and some visa processes are starting to take longer. Prominent examples include H-1B petition processing and the I-485 application for adjustment of status process (the last step of the 3-step green card process), which is now taking more than a year to complete with a new added requirement of in-person interviews for all new applicants. Form I-9 compliance efforts may also increase in 2018.
A Note Regarding Foreign Worker Travel Abroad
International travel is always potentially a case complicating issue. Given the increased scrutiny applied to workers who plan to obtain a new visa stamp while outside of the U.S., proper planning in advance is critical to minimizing the time required to complete the process and any related interruption to continuing work activities in the U.S. Current processing times average a week, and the additional background and security checks called “administrative processing” can extend the processing time to 30 days or longer. To accommodate any unforeseen delay, it is recommended that the foreign worker coordinate with his or her work supervisor to have a back-up plan in place so that work in the U.S. can continue without meaningful interruption in the event the foreign worker’s return from abroad is delayed. Information regarding visa application procedures at specific U.S. consulates abroad can be found at: http://www.state.gov/
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