The DHS has released the long anticipated proposed regulation which promised to provide greater portability to H-1b workers with approved I-140’s. A copy of the complete rule can be found here. Comments on the proposed rule are due on Feb 29, 2016 and the rule is not in effect until it becomes final, sometime after the comment period. Our office will be providing a detailed summary to clients next week. I hate to throw cold water on what should be a day of celebration but, a quick read through does not indicate that the portability provisions are as gracious as promised. There are however, other really good provisions which will be very positive for international professional workers and their employers. Happy New year and we wish everyone a great 2016.
On November 20, 2015, the USCIS released its draft memo on Determining Whether a New Job is in “the Same or a Similar Occupational Classification” for Purposes of Section 204(j) Job Portability for comment. A copy can be found here. The memo details how Officers should evaluate two different sets of job duties as they relate to Standard Occupational Classification (SOC) codes. Of note, is that the same or similarity of the two position can be shown if the jobs are found within the same broad occupational group code, the first 2 digits. Officers are also instructed to take an individual’s career progression into consideration and they may also consider the difference in the individual’s wages. The comment period end January 4, 2016.
At a time when the US refugee program is under attack and Donald Trump is pounding his fist and screaming about building a wall and forming a quasi police force to round up and remove 11 million undocumented persons, Senators Grassley and Durbin have also sprung to life and re-introduced legislation from 2007 that would severely and negatively impact the IT and engineering staffing industry, all under the guise of protecting US workers. The thought is well-meaning but, the plan has already been rejected on at least 2 other occasions. The H-1b program needs reform but, it needs fresh ideas not tired old re-treads.
In response to a federal judge that struck down the existing STEM 17 month OPT extension policy as a violation of the APA, the DHS has released an unpublished version of the proposed rule to essentially reinstate the policy. We expect the proposed rule will be officially published on Monday October 19th and we will be posting a summary next week. We will also be submitting comments to the DHS within the 30 day comment period.
The Department of State released the October Visa bulletin today and it contained great news for individuals affected by retrogression. The new bulletin contains a 2nd chart identified as ” Dates for filing of employment based applications.” This second chart allows for the filing of an I-485 prior to one’s priority date becoming current. This will allow a person to obtain an EAD and AP sooner than expected. For example, if you are from India in EB3 and you have a priority date prior to July 1st 2005, you can file your 485 in Oct. If you are from the Philippines and you have a priority date prior to Jan 1, 2015, you can also file. Contact your attorney at HLG if you think you may qualify under this new bulletin.
The USCIS issued a press release providing more information about this change.
Unfortunately, the priority dates did not progress as rapidly as expected as the Philippines EB3 only moved to Jan 2007 and India EB2 actually retrogressed to May 2005. The all other countries category (ROW) remained virtually current.
Last week, a federal judge ruled that the 17 mo. STEM extension rule which went into effect in 2008 was issued in circumvention of federal law specifically, that it was issued without the proper notice and comment required under the Administrative Procedures Act. Many in the staffing community wonder where this judge and reasoning were when the Neufeld memo and the Simeio Solutions policies were issued also without notice and comment but, I digress. The judge ordered the OPT STEM rule to be vacated but, thankfully, the effect is not immediate. The order will not go into effect until Feb 12, 2016 leaving the DHS sufficient time to issue proposed regulations and go through the proper notice and comment period. Whether the current administration will be able to achieve this in light of the myriad of other immigration initiatives they are currently tackling remains to be seen but, at this point we remain hopeful.
The Department of State has released the last Visa bulletin of fiscal year 2015. Priority dates will often retrogress or even become unavailable in the September bulletin as allocations for the fiscal year are exhausted and the EB2 categories for both India and China saw retrogression of some significance. It is noteworthy that dates continued to stay almost “current” for EB3 all other countries (ROW) and that dates actually moved forward for Philippines EB3 and India EB3. The October visa bulletin will be anxiously awaited. Legislation remains sorely needed to address retrogression and the long visa waits.
Recently, the White House released a report on modernizing the immigration system and claimed that executive action to implement some of the ideas contained in the 68 page report would be taken. Many of the ideas set forth by the Obama Administration would be welcomed by the business community.
In a letter made public recently, IBM responded to an inquiry made by Senator Grassley regarding the use of H-1b workers in light of lay-offs by IBM in Senator Grassley’s home state of Iowa. Senator Grassley has been an outspoken critic of the H-1b program and legal immigration in general so his inquiry to IBM was not surprising and, from my point of view perfectly appropriate. The spirit of the H-1b program, if not the law, should not permit H-1b workers to replace laid-off US workers. As part of their response, IBM sought to distance itself from others who heavily use the H-1b program and have a much higher percentage of H-1b workers. IBM puts its % of H-1b workers at 10% or less. In calling for an expansion of the H-1b program, IBM reminded Senator Grassley that the current limitations of the program were leading to the loss of US jobs and greater outsourcing. Given his historical position on the H-1b program, it is doubtful that Senator Grassley was in any way, swayed by the arguments being made by IBM but, it is nice to see US companies defend their H-1b programs.