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.
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.
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.
On October 1, 2015, Congress failed to extend the additional filing fees for petitioners whose workforces are heavily reliant on H-1B and L-1 employees. The law, known as Public Law 111-230, required an extra $2,000 fee for certain H-1B petitions, and a $2,250 fee for L-1A and L-1B petitions, whose company had 50 or more employees in the U.S., with over half of those workers on H-1B or L-1 visas.
All H-1B and L-1 fees, filed on or after October 1, should still include the base I-129 fee, Fraud Prevention and Detection Fee, and American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) Fee, when applicable. Petitions with incorrect fees may be rejected. However, unless this fee gets reauthorized, petitions should enjoy the reprieve.
The main reason Senator Grassley was troubled was because he believed that the new memo could result in hundreds of thousands of temporary foreign workers being admitted into the U.S. … wouldn’t that be terrible! Senator Grassley also believed that “A more liberal definition of ‘specialized knowledge’ that causes hundreds of thousands of additional L-1B workers to be admitted to the country will also accelerate the offshoring of jobs from the United States.” I am not sure which memo Senator Grassley read but the new L-1B has not “opened the flood gates” in the L-1B category. The memo still provides too much subjective review by Officers. The memo also does not provide bright line definitions of specialized knowledge as was originally hoped. However, if read carefully the memo provides guidance to petitioners as to what evidence best demonstrates specialized knowledge in USCIS’ eyes. Please see my article in ILW.com for a detailed review of the L-1B memo and a breakdown of the factors that tend to demonstrate specialized knowledge.
On August 17, 2015 USCIS released the final version of its policy memo that will guide the future adjudication of the L-1B visa classification. This memo will apply to all L-1B petitions pending or filed with USCIS on or after August 31, 2015. If petitioners will have a petition pending with USCIS beyond August 31, 2015 they should be using this memo as guidance to prepare their petitions if they are already not doing so.
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.
U.S. Citizenship and Immigration Services has issued a draft template of requests for evidence (RFE) for L-1B petitions and is taking comments on the proposed form, a copy of which can be found here. USCIS will take comments until July 31. This is a follow up to its Memorandum on L-1B Adjudications Policy earlier this year. Even though the new L-1B Adjudications memo has not gone into effect, it appears that both USCIS and practitioners are looking ahead to when the rule does become final. The main benefit that can be gleaned from the RFE template is it that it contains an expansive list of evidence that can be provided to demonstrate that the requirements of an L-1B visa are met, including specialized knowledge.