'Nipped in the Bud...

How Immigration Benefits for STEM graduates may get pruned

Because highly-sought H-1B visas are limited to only 65,000 each year, many highly-educated individuals seeking to work in the U.S. do not get a chance to secure work authorization in H-1B status.

Many of these applicants are foreign graduates of U.S. colleges and universities seeking work after graduation.

The greatest challenge for most of these graduates is a matter of timing. 

Here's why:

The allotment of 65,000 H-1B visas becomes available on the first day of the federal fiscal year, October 1.   However, one cannot apply for an H-1B visa more than 6 months ahead of time.  Thus, the first day someone can apply for an H-1B visa is April 1 of that same year.

Because of the intense demand for H-1B visas, U.S. Citizenship & Immigration Services, ('USCIS') typically receives more applications for H-1B status than there are available.  A whole lot more.  In fact, this past year, in April 2015, USCIS received nearly 3 times more applications than available H-1Bs.  In the first 5 days. 

USCIS will then typically hold a 'lottery' and randomly choose which H-1B petitions it will process.

Consequently, if you haven't filed your H-1B petition by April 5th, you're out of luck.  (Of course, even those who do get their H-1B petitions filed by then still may be arbitrarily denied a chance for an H-1B visa if his or her petition is not randomly chosen during the lottery.)

For graduates of U.S. colleges and universities, this poses a huge problem since most students graduate in May or June.  By the time they graduate, the H-1B application process has already shut down.  And since you must provide evidence of your educational qualifications, (e.g., a diploma), to apply for an H-1B visa, students are typically prevented from seeking an H-1B visa until April 1 of the following year.

Foreign students typically are allowed into the U.S. to study at U.S. colleges and universities with a 'student visa' - also known as an 'F-1' visa.

The final piece of the puzzle - if you haven't already considered it - is that the F-1 visa is valid only so long as the student is in a full-time course of study at a U.S. college or university.  When the program ends, (e.g., when a student graduates), then the student's F-1 visa status expires and the student must return to his or her home country.

Fortunately, there is an Option for these students to remain in the U.S. after their graduation.  It's technically an extension of the F-1 visa that allows the graduate to gain experience working in his or her field of study for one year following graduation.  This is called Optional Practical Training, (or 'OPT'). 

With OPT, a student can remain in the U.S. long enough to have the opportunity to file an H-1B petition during the next April's filing season.

In an effort to promote the workforce of highly-skilled technical employees, particularly for the technology sector, USCIS published a regulation in 2008 that permits an additional 17-month extension of OPT for individuals who graduate with a degree in one of the STEM areas, (Science, Technology, Mathematics and Engineering).  This would ostensibly give STEM graduates two chances to file an H-1B petition.

What's the Problem?

When the Department of Homeland Security published the regulation granting an additional 17-month extension of OPT, it did so without the customary 'Notice and Comment' period required of agencies wanting to promulgate new federal regulations.  It's argument was that the need to issue the regulations was so important at that time of year that it constituted extraordinary circumstances permitting it to avoid the Notice and Comment period.

Not everyone was enamored with these new regulations.  The Washington Alliance of Technology Workers concluded that it was harmed by the regulations, so it challenged the legitimacy of the 17-month STEM OPT extension, by filing suit in the Federal District Court for the District of Columbia.

The Federal Court ultimately agreed in August 2015 that the STEM OPT 17-month extension regulations were not properly promulgated and vacated the regulations - in effect saying that they should not be given any effect.  Nipped in the bud, if you will..

However, the Court also recognized the tumultuous consequence of instantly invalidating the work authorization of thousands of students working with STEM OPT 17-month extensions, so it stayed the vacatur of the regulations (postponed its effect) until February 12, 2016.

The Court stated:

     "The Court sees no way of immediately restoring the pre-2008 status-quo without    causing substantial hardship for foreign students and a major labor disruption for the technology sector.  As such, the Court will order that the 2008 Rule - and its subsequent amendments - be vacated, but it will order that the vacatur be stayed."   


It was anticipated that this delay would give the Department of Homeland Security enough time to go through a proper Notice and Comment period to validate these regulations.  However, on December 22, 2015, the Department of Homeland Security filed a Motion with the Court requesting additional time to complete the Notice and Comment period, train and educate personnel on the regulations.  The Motion requested that the stay remain in place until May 10, 2016.

As of today, the Court has not yet ruled on the Motion to extend the stay.  However, if the Motion is not granted, foreign graduates working under a 17-month OPT STEM extension may want to be prepared for the consequences on February 13, 2016.

Stay tuned for more information as it becomes available...

Immigration by Executive Order

Last night, President Barack Obama announced a new Executive Order designed to address several (of many) immigration issues facing our country.  The first understatement is to acknowledge that his use of an Executive Order has drawn considerable controversy.

First, let's address the Executive Order issue.  President Obama, like Presidents Ronald Reagan and George H.W. Bush before him, has used an 'Executive Order' to address the problem of undocumented persons in the United States - but that doesn't necessarily make it a desirable approach.  I think everyone would agree that a well-considered, bi-partisan Congressional bill reflecting joint compromise would be a more acceptable and supportable approach to dealing with this issue.  Most people have forgotten, but a mere 16 months ago, the U.S. Senate was able to overwhelmingly pass such a comprehensive bi-partisan immigration bill.  Unfortunately, it never made it into the House of Representatives for a vote, so it appears that the best chance of handling the immigration issue in a cooperative legislative fashion is in our past.
 It should also be noted that since the President cannot pass legislation on his own, he is actually fairly limited in what he can do from an Executive standpoint.  Taking this action does not create a new opportunity for legal status, it does not create a new law and does not change the law as it now exists; it does, however, change the way certain portions of the law, interpreted in the federal regulations, are carried out.  In doing so, however, it broadens and expands benefits that certain undocumented persons may secure.

The Executive Order addresses five different initiatives to address the immigration system.  Three of these initiatives are concrete proposals that have real impact on certain immigration procedures.  The other two statements are simply aspirational comments.

Briefly, here are 3 fundamental areas of immigration practice affected by the President's actions:



DEFERRED ACTION FOR PARENTS OF U.S. CITIZENS

What it does:  Under this provision, certain persons who are not lawfully present in the U.S. but have children who are U.S. citizens or Lawful Permanent Residents ('green card' holders) would be able to gain the benefit of not being removed from the country ('deported').  And while they are in the U.S., they are given permission to work, pay taxes and abide by the labor laws of this country.

Who is affected:  Only parents who have been in the U.S. since January 1, 2010 and whose children are U.S. citizens or Lawful Permanent Residents may apply for this benefit.

What this changes:  Presently, this benefit known as 'Deferred Action' is already available in certain cases, and by Executive Order in the summer of 2012, was expanded to specifically include children who were brought to the U.S. before the age of 16.  This prior Executive Order is referred to as Deferred Action for Childhood Arrivals, (or 'DACA'). 
     Currently, U.S citizens over the age of 21 may sponsor a parent for Lawful Permanent Residency - but - typically the parent has accrued unlawful presence such that he or she would be barred from entering the U.S. for 10 years if the parent were to leave the U.S. to obtain his or her 'green card'.  
     The President's Executive Order of November 20, 2014 further extends 'Deferred Action' to allow these same parents the opportunity to remain in the U.S. and work based upon the presence of a son or daughter - regardless of age - who is either a U.S. citizen or a Lawful Permanent Resident.  It does not permit them an alternative opportunity to get Lawful Permanent Residency.

When it starts:  It is anticipated that this benefit will become available before the end of May 2015.



DEFERRED ACTION FOR CHILDHOOD ARRIVALS ('DACA')

What it does:  Under this provision, the population of eligible applicants for DACA (described above) is expanded by allowing more recent arrivals to apply, eliminates the age limit and extends work authorization to three (3) years.

Who is affected:  Persons who were brought here as children well before June 15, 1981 - as well as those who have arrived after June 15, 2007 but before January 1, 2010 -  may now apply for this benefit.  Current DACA recipients can take advantage of an additional 1 year of work authorization when they renew their request for DACA benefits.

What this changes:  Presently, one of the criteria for DACA is that the person was under the age of 31 as of June 15, 2012; this leaves out persons born before June 15, 1981 and who came to the U.S. as children.  Now, the age limit is eliminated and anyone meeting the rest of the criteria is eligible to apply.  In addition, the present policy requires that an applicant also prove that he or she has resided in the U.S. continuously since June 15, 2007.  The new provision extends that date to January 1, 2010, so that more recent arrivals may now also apply for this benefit.
     Finally, the original DACA Executive Order permits work authorization to a successful applicant for two (2) years.  That period of work authorization will now be extended to three (3) years.

When it starts:  It is anticipated that these extended benefits will become available before the end of February 2015.



PROVISIONAL WAIVERS OF UNLAWFUL PRESENCE

What it does:  Under this provision, the population of eligible applicants for a Provisional Waiver, ('601A' Waiver), is expanded to include sons and/or daughters of U.S. citizens and Lawful Permanent Residents.

Who is affected:  Older children of U.S. citizens - as well as children of Lawful Permanent Residents - who are now permitted to apply for a Provisional Waiver.

What this changes:  An individual who has remained in the U.S. unlawfully for 180 days - and leaves the U.S. - is subject to a 'bar' of returning to the U.S. for 3 years.  If the individual is in the U.S. unlawfully for 1 year or more, the 'bar' is 10 years.  A 'Waiver' of the 3 or 10 year bar is available for an individual who is subject to the 'bar' - but is nonetheless eligible to get a 'green card' at a U.S. Consulate abroad - if the person can show that it would create an 'extreme hardship' to a U.S. citizen spouse or parent of the applicant.  The 'Waiver'  gives this applicant the ability to return to the U.S. immediately without having to wait for the end of the 3 or 10 year 'bar'.  Normally, one applies for the 'Waiver' after he or she has left the country (thus triggering the 'bar') to interview for the 'green card' at the U.S. Consulate abroad. 
     Through executive action in 2013, President Obama created a 'Provisional' or '601A' Waiver that permitted an individual who is a spouse or child of a U.S. citizen to take advantage of the Waiver before the individual left the country for a 'green card' - thus giving certainty to the applicant that he or she could immediately return to the U.S. after the 'green card' appointment. 
     Under the new provisions of the November 20, 2014 Executive action, persons eligible to take advantage of the '601A Provisional Waiver' program will be expanded to include adult children of U.S. citizens as well as spouses and children of Lawful Permanent Residents, as well.
     Finally, the term 'extreme hardship' will be more clearly defined and, presumably, less restrictive, than before (although this remains to be seen).

When it starts: Unknown; generally whenever new regulations are issued.


Finally, there are several aspirational statements committing the Executive Branch of the U.S. Government to work towards refining, expanding and expediting the process for the Labor Certification Applications ('PERM'), employment authorization for certain dependents of H-1B visa holders, the immigration visa issuance process and others.

Over the next several weeks, we will be exploring in more depth the significance and practicalities of these new initiatives so that you can gain a better understanding of what may lie ahead.

Experience Counts

Most of the employees I see coming to this country for professional jobs for my client employers want to become Lawful Permanent Resident, and, eventually, U. S. Citizens.  It is their goal not only to work here, but also to “live the dream”.  One of the first questions I get when filing for their L or H status is: “When can I get my ‘green card’?” 

For non-immigrant workers, that path to a green card often begins with the PERM Process, or the Permanent Labor Certification Process.  This is a process that must be initiated by an employer for an employee, and often employees will make that a condition of their employment during their hiring process.  A benefit of this process is that it takes into account the derivatives listed on the non-immigrant petition when the employee came to work in the United States.  Therefore, within one process, a non-immigrant worker, his/her spouse, and their minor children can all get their “green cards” at once.  Another benefit of this process is that if the filing is done within a certain time period, non-immigrant workers in H-1B status can extend their stay past the normal expiration date for a non-immigrant worker in H-1B status.  This is particularly important for those workers from one of the countries that have a waiting period before the actual lawful permanent resident application (Form I-485) can be filed. 

One of the most important steps in this process is the proof that the beneficiary of this process is qualified for the job for which the recruitment was done and the Labor Certification was issued.  An important part of that proof is the experience letter, which is the best and most useful documentation of the experience of the employee to be sponsored.  An experience letter is a letter from your previous employer(s) showing not only that the applicant has experience, but also that the applicant has the relevant experience for the job being offered.   Unfortunately for the applicant, that experience shouldn’t come from their current employer, even at another location.

As we work with the employers to obtain lawful permanent resident status for one of their employees, we will assist in the preparation of the experience letter to be sent to a previous employer.  The reason for this is that experience letters are more than just a matter of detailing that an employee worked somewhere and the dates of that employment, but also what that employee did while there to show that the employee has the experience required for the position.  Experience letters need to be on the letterhead of the previous employer, contain the name and contact information for the person signing the letter, the title and relationship to the employee of the person signing the letter, the start and end date of the employee’s employment, the title of the employee while at that company, whether the position was full or part-time, and a brief job description of the duties performed by the employee while at the company.  The job description should contain duties and tasks which are relevant to the position that employee has, or will have, with the employer who is sponsoring that employee for their lawful permanent resident status.   All of these elements should be in the experience letter as proper evidence of the employee’s experience and/or training.  If any of these elements are missing or lacking, USCIS can, and most likely will, reject the letter and conclude that the petitioner has failed to prove that the employee has the required experience or training.

These experience letters must be from a person who has direct knowledge of the actual work the employee performed while working for the previous employer.  This also needs to be a person who directed that work, not just a co-worker.  The best person to provide that experience letter will be a manager that was directly over the employee or their supervisor, either of whom is still working for the previous employer.  Other alternatives are managers or supervisors further up in leadership chain of the company who have managerial or supervisory responsibilities over the former employee’s direct manager and/or supervisor and are still with the previous employer.  Finally, if there are no managers or supervisors that were there when the employee was at the previous employer, then the letter can be signed by someone in the human resources department to confirm the dates of hire and the job duties for the position the previous employee was in.

However, some of the employee’s previous employers may have been acquired by another company in a merger or buyout.  This can create problems, but, with enough forewarning, steps can be taken to get a previous manager or supervisor, who is with the new company, sign an experience letter while providing USCIS enough information regarding why the information is being provided by the a new company.  This will allow USCIS to determine that the information from this new company is actually the same as if it had come from the previous employer.  This process, however, takes more time and can delay the filing of the I-140 if not started early in the PERM Process.

Another problem is when the previous employer is no longer in business.  Sometimes, if an employee is aware of his employer’s financial difficulties and is concerned over that employer’s viability to continue to do business, it is advisable to have that employer write an experience letter, detailing all of the information above, very shortly after the employee obtains new employment so that the employee is not stuck without the very valuable experience letter if the company closes.  When a company dissolves, the records are often lost or destroyed and there is no way to obtain an experience letter from that previous employer.  However, all is not lost.  USCIS has allowed for former managers or supervisors who are with new companies to write experience letters on behalf of a former employer since it is impossible to obtain an experience letter from that previous employer.  The requirements of the experience letter do not change, but the wording has to address why the letter is not from the previous employer, but rather from a different company where the employee had no previous contact and detailing that the previous employer is no longer in business.

While experience letters are not needed until the I-140 petition filing stage, we get them as soon as possible in the PERM Process.  Experience letters allow us to confirm exact dates of employment for the Labor Certification Application; to verify experience needed for the job being recruited for to make sure that the employee has the required experience for the job; and to determine if additional steps are going to have to be taken to get the experience letter that is needed due to some of the scenarios discussed herein.  The experience letter relates to the entire PERM Process; and experience counts.