Visas – H-1b, L-1, E, O, TN

Still an Uphill Battle for L-1B Petitioners

On January 13, U.S. District Judge Stephen V. Wilson refused, Chain-Sys Corp.’s, a Michigan technology company, motion for summary judgment accusing U.S. Citizenship and Immigration Services officials of improperly denying an L-1B visa for a programmer from India, saying the agency had a reasonable foundation for its decision. Chain-Sys, which creates software applications, most notably for software giant Oracle Corp., had sought an L-1B visa for its employee, Anbarasan Murugan, a senior project manager and technical specialist at Chain-Sys who had worked for the company in India for eight years. Chain-Sys has been arguing two points. First, the agency was wrong to determine both that Murugan’s knowledge of the company’s proprietary software was not itself specialized knowledge; and second that Chain-Sys hadn’t shown that others employed in the industry couldn’t easily acquire Murugan’s knowledge.

As to the first argument, the judge noted that the fact that a person works with proprietary information or has a high level of technical skill is not enough to establish specialized knowledge under the USCIS’ interpretation of federal immigration law. As to the second argument, the judge said he couldn’t conclude that USCIS “was compelled to find that it would take years to impart Murugan’s knowledge alone on another individual already in the industry.” In general, it is safe to assume that your company’s propriety technology is not commonly held, is complex and is difficult to impart to others. However, this decision shows that when petitioning for an L-1B employee it is still best to demonstrate as many as the factors that show specialized knowledge as possible, even though the presence of one or more of these (or similar) factors is sufficient in some cases to establish that a beneficiary has specialized knowledge.

Updates to Increases in H-1B and L-1 Petition Fees

The Consolidated Appropriations Act, 2016 (Public Law 114-113) was signed into law on December 18, 2015 and increased the fee for certain H-1B and L-1 petitioners. USCIS issued a web alert today that the additional fee now applies when a petitioner employs 50 or more individuals in the United States, with more than 50% of those employees currently in H-1B or L (including L-1A and L-1B) nonimmigrant status.
The additional fee must be included (1) with new petitions seeking H or L status or (2) when the petitioner seeks to have the nonimmigrant in H or L status change employers.

This is a departure from what the previously published regulations on the topic indicated, which also required the additional fee for extensions of H or L status. As things stand today, these are the only types of petitions that requires the additional fee but based on the back and forth that has surrounded this rule’s roll out, we will not know for sure until USCIS revises its instructions for the Form I-129.

DHS releases new proposed rule

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.

Technical amendments make new H-1b filing fees applicable to US employers

The original Omnibus bill passed by Congress last week made additional H-1b filing fees only applicable to large foreign entities that employ > 50% of its workforce on L visas however, technical amendments were made to the final language and the additional filing fees now apply to US employers that have more than 50% of their workforce made up of H-1b or L-1 workers. The new language is below:
‘‘(b) TEMPORARY H-1B VISA FEE INCREASE.—Notwithstanding
section 281 of the Immigration and Nationality Act (8 U.S.C. 1351)
or any other provision of law, during the period beginning on
the date of the enactment of this section and ending on September
30, 2025, the combined filing fee and fraud prevention and detection
fee required to be submitted with an application for admission
as a nonimmigrant under section 101(a)(15)(H)(i)(b) of the Immigration
and Nationality Act (8 U.S.C. 1101(a)(15)(H)(i)(b)), including
an application for an extension of such status, shall be increased
by $4,000 for applicants that employ 50 or more employees in
the United States if more than 50 percent of the applicant’s
employees are such nonimmigrants or nonimmigrants described
in section 101(a)(15)(L) of such Act.

The new fees go into effect immediately and apply to initial filings and extensions.

Omnibus bill passes !

The Omnibus bill has passed and it includes major increases in the filing fees for H-1b and L-1 visas but, the language makes the additional H-1b filing fee applicable ONLY to those companies that have > 50% of their workforce on L visas. In contrast, the increased L-1 filing fee applies to companies that have > 50% of their workforce on combined L-1 and H-1b visas. As a practical matter, the additional H-1b fee will not apply to US based companies and in all likelihood apply to only a hand-full of companies. This language is a direct attack at large Indian out-sourcing companies.

H-1b and L-1 Filing fees to double

Buried in the Omnibus Appropriations Bill that Congress is currently considering is a provision that would re-instate and double the “penalty” filing fee imposed on employers with 50 or more employees where 50% of those employees are H-1b or L-1b visa holders. The new fee would also apply to extensions. The new penalty fee for H-1b petitions would be $4,000 and for L-1 cases, $4500.

Grassley Durbin Try Again

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.

H-1b visas in the news

Check out this recent article in the New York Times regarding the H-1b visa program.

Proposed STEM OPT Rule Summarized

On October 19, 2015, the Department of Homeland Security published a proposed regulation that is a direct response to a federal judge’s order striking down the existing STEM OPT program because of a lack of compliance with the Administrative Procedures Act. The proposed rule would make several changes to the F-1 STEM OPT program and includes formal rulemaking for the so-called “cap-gap” rule. Public comments to the proposed rule are due by Nov 18, 2015. Below is a listing of what we consider to be the highlights of the proposed rule.

1. The STEM OPT program would be extended to 24 months. Individuals who received a degree in certain science, technology, engineering and math fields could receive an additional 24 months of optional practical training beyond the 12 months provided to most F-1 graduates.
2. Employers must participate in E-Verify in order to hire STEM OPT graduates.
3. Employers must create a formal mentoring and training plans for STEM OPT employees.
4. Employers must also have a process in place for evaluating the STEM OPT employee.
5. Employers must demonstrate that US workers are being protected by demonstrating that the employer has the resources to provide mentoring and training and the employer will not lay off US workers as a result of hiring a STEM OPT worker.
6. Employers will be subject to site visits by the DHS to insure compliance with the mentoring and training program rules.
7. The proposed rule defines which STEM categories qualify based on the Department of Education’s CIP taxonomy and includes groups containing mathematics, natural sciences, engineering/engineering technologies and computer/information systems. Health and social sciences are not included. The DHS will publish a list of accepted STEM fields in the Federal Register.

STEM OPT proposed rule released

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.