Happy H-1B Cap Season! Brown Immigration Law is busy preparing numerous H-1B cap petitions to be filed on March 31 (and in any event no later than April 6th!). At this busiest time of our calendar year, we kindly ask for your patience with any delayed email responses as we prioritize this very important filing deadline. While the window is quickly closing to start new cap petitions please ensure you doublecheck your recent college hires or others who may need sponsorship, as there is still another week left in which to start a case. As a reminder the earliest date that we can file any cap H-1B petition is April 3, 2017. To ensure the filing arrives at USCIS on April 3, the petition must be complete on March 31, as we will courier it from our office that day. However, USCIS will accept H-1B petitions until April 7, 2017, so we can courier H-1B petitions from our office as late as April 6, 2017. As you may know, it is impossible to present us with a new H-1B case on April 5 and expect us to file it on April 6 if there is not a preexisting LCA approval. The preparation process for a successful H-1B petition consists of much more than shipping completed forms. The H-1B filing must consist of a Labor Condition Application (“LCA”) certified by the Department of Labor. Companies that have never filed an LCA with the Department of Labor (“DOL”) in the past will need to register with the DOL and company verification will take 3-4 business days. After your company is verified, we can file the LCA; we generally receive the certified LCA 7 days after filing. When the certified LCA is signed, we are able to file the H-1B petition. Additionally, employees with foreign bachelor’s degrees will need education evaluations and we ask that you allow 7 days for this process. If the H-1B petition requires an education evaluation, we must have the necessary educational documents by March 24 in order to file the H-1B petition on time.
New companies that have never filed an LCA with the DOL before must send us the required H-1B documentation by March 27 at the very latest. Companies that have filed an LCA with the DOL in the past must send us the required H-1B documentation by March 29 at the very latest. Please be advised that if there are several last minute H-1B requests we will draft the petitions on a first come first serve basis. Furthermore, we cannot guarantee that the DOL will timely process LCAs so we do encourage clients to bring H-1B requests sooner rather than later to best avoid allowing DOL to delay the H-1B petition filing date.
Earlier this month, USCIS announced that it would place a temporary suspension of premium processing service for all H-1B cases starting April 3, 2017 and lasting for up to six months. Please note this suspension does not affect other visa classifications besides H-1B. USCIS has indicated that the suspension of premium processing would allow the agency to staff long-pending matters and prioritize extensions nearing the 240-day mark and, thereby, reduce the overall H-1B processing times. This means, however, that we will no longer be able to file premium processing for those H-1B CAP cases who had previously planned to do so. We are in the process of reaching out to anyone who initially requested Premium Processing for their cases and also contacting those who would have benefited from the Premium Processing service. For H-1B extensions and changes of employer eligible for filing before April 3, we are in the process of reaching out to clients to see if Premium Processing will be beneficial for any foreign workers’ case (upcoming travel, etc.) For H-1B change of employer petitions, it is important to note that employees may begin to work for their new petitioning employer prior to having an approval pursuant to AC-21 portability. While we understand that many employees prefer to have an approval in hand by the time they change employers, in all the years we’ve filed AC-21 cases we have never had an H-1 denied for a tech worker using AC-21 portability. We, therefore, will be happy to continue to advise and assist with such transfers during this suspension period. When the suspension has been lifted, we will have the option of making an upgrade to premium processing for those employees who have begun work pursuant to AC-21 portability. We must be advised of all H-1B extension and change of employer petitions no later than March 22, 2017 to ensure that the case will be filed with premium processing before the hard March 31, 2017 deadline. We will be continually providing updates as necessary, and we will be identifying those cases affected by this change and affirmatively reaching out for contingency planning purposes.
On March 15, 2017, both Hawaii-based U.S. District Court Judge Derrick K. Watson and Maryland-based U.S. District Court Judge Theodore D. Chuang issued temporary restraining orders blocking implementation of the Trump Administration Revised Executive Order (“EO”) Travel Ban. The judges justified their temporary restraining orders stating that the plaintiffs were likely to prevail in proving that the EO was issued with a discriminatory purpose to disfavor Muslims. As we reported last week, the President Trump issued this revised EO to replace the travel ban imposed in late January and stayed by the 9th Circuit Court of Appeals. Please see our previous news update for specific details on the content of the revised refugee ban and travel ban for six Muslim-majority countries. This revised EO was scheduled to go into effect on March 16, 2017, but now will not go into effect until further notice. The Trump Administration must now decide whether to appeal the temporary restraining order to a U.S. Circuit Court or to proceed to argue the merits at the district court level. We will continue to update our guidance as the situation unfolds.
We understand that various U.S. Congressional members have proposed legislative changes to the H-1B program in the recent months since the 2016 election. While we are monitoring these proposals closely, none of these proposed changes to the H-1B program will have an effect on this year’s H-1B cap season. The lottery rules and eligibility requirements to receive an H-1B against the cap will remain unchanged from the past years for the April 2017 filings. We will be sure to affirmatively provide timely updates should there be any substantive policy changes with imminent effects on our clients.
Earlier this month, the Department of Labor announced that they would no longer certify PERMs that included “experience with” or “knowledge of” without a specific time increment for the special requirements section, noting that any requirements must be quantifiable. In response to pressure from AILA, the DOL has temporarily suspended implementation of this new guidance, but we do anticipate it will go into effect in the next few months. While as a practice we had already met the new guidance we don’t anticipate any issues in adhering to it when it becomes a final rule.
EB-1 continues to remain current for all areas of chargeability. EB-2 and EB-3 India inched forward only 21 days (22 June 2008) and 2 days (24 Mar 2005) respectively. EB-2 China moved one month forward from 15 Dec 2012 to 15 Jan 2013 and EB-3 China jumped five months from 15 Mar 2014 to 15 Aug 2014. EB-3 Philippines saw movement of 6 months from 15 Mar 2012 to 15 Sept 2012, while EB-3 for all other chargeability areas moved forward to 15 Feb 2017. April 2017 Visa Bulletin
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **