Tips for H-1B and L-1 FDNS site visit compliance

Since 2009, the Fraud Detection and National Security directorate ("FDNS") of USCIS has conducted site visits at employer worksites to ensure compliance with all terms as stated in the I-129 for approved H-1B and L-1 petitions. FDNS operations are funded with the $500 Fraud Prevention and Detection Fee that accompanies initial H-1B and L-1 petitions by employers. If FDNS conducts a site visit and the officer's Compliance Review Report contains indicators of fraud, USCIS will then assess whether further investigation is warranted and, if necessary, alert Immigration and Customs Enforcement ("ICE").

Compliance with the H-1B and L-1 regulations remains essential for employers who submit petitions on behalf of professional workers in these visa categories, and employers should keep in mind a few important points concerning FDNS site visits. If an officer from FDNS arrives at your worksite, remember that FDNS site visits are voluntary, though employer cooperation is strongly recommended. More importantly, employers and their HR representatives should always contact their immigration attorney ASAP in the event of an FDNS site visit. During these site visits, which are typically unannounced, employers may be requested to provide paystubs and W-2s for H-1B and L-1 employees. These figures will then be matched with the amount stated in the I-129 petition and compared to the beneficiary's 1040 tax return to ensure compliance. Employers who are not able to immediately address all the issues raised by the inspector may request additional time to respond.

To avoid any discrepancies in the event of a site visit, employers should make certain that all information provided in the I-129 petition is 100% accurate and that any significant changes to the conditions of employment are brought to the attention of their immigration counsel who can advise on filing an amended petition.  For more information about FDNS and site visit compliance, visit USCIS's website.  

Supreme Court ruling on DACA does not impact current DACA recipients

On June 23, 2016, the U.S Supreme Court issued a 4-4 split decision upholding the injunction against implementation of President Obama's actions to provide safe haven and work authorization to thousands under the Deferred Action for Parents of Americans and Legal Permanent Residents ("DAPA") program and to extend eligibility for Deferred Action for Childhood Arrivals ("DACA") to additional thousands who are currently without any form of legal status. It is important to note that although the President's expanded DACA program will not be expanded at this time, the Supreme Court's decision does not affect anyone who is currently enrolled in DACA. Individuals who meet the 2012 DACA guidelines may continue to come forward and file an initial or renewal request for DACA under those guidelines. For more information, visit the USCIS DACA website.

Lengthy wait times for visa appointments in India

U.S. Consular Posts in India began reporting lengthy wait times for nonimmigrant visa interview appointments in June.  These substantial waiting periods continue and affect all nonimmigrant visa applicants other than B1/B2 visitors, F-1 students, and J-1 exchange visitors and their dependents.  Current wait times for appointments (as listed on the Department of State's website) for H-1B, L-1, O-1, and other affected nonimmigrant visa categories are:

• 82 days in Chennai;
• 118 days in Hyderabad;
• 96 days in Kolkata;
• 67 days in Mumbai; and,
• 90 days in New Delhi.

F-1 student visa appointments at some of the above-listed offices are taking as long as 36 days for scheduling. Accordingly, F-1 students should make visa appointments as early as possible to ensure timely visa processing for arrival to the U.S. for the fall semester.

The Department of State ("DOS") reports that demand for U.S. visas has increased by 80% since 2011 and DOS is currently requesting approval to add consular positions in an effort to decrease visa wait times. Until wait times subside, Indian nationals in the U.S. with expiring or expired visas should keep in mind the lengthy periods for obtaining an appointment and plan accordingly - perhaps even deferring international travel unless absolutely necessary to avoid extended waiting time abroad.  Although expedite requests are available for humanitarian issues and business emergencies, such requests should be made sparingly and with sufficient documentation to demonstrate the exigent circumstances. Additionally, visa applicants should also consider Third Country National (typically, Canada) processing (particularly for H-1B and L-1 visa holders) as a more efficient alternative.  Please note that Indian nationals require a Canadian visitor visa to enter Canada.

STEM OPT deadline

F-1 students on 17-month STEM OPT and their employers should be mindful of the upcoming August 8, 2016 deadline for applying to extend their STEM OPT to the new 24-month maximum. The Department of Homeland Security's ("DHS") final STEM OPT rule, published in March, allows many F-1 students with STEM degrees to take advantage of a two-year extension to their Optional Practical Training ("OPT"). As stated in the new rule, any 17-month STEM OPT Employment Authorization Document ("EAD") issued on or before May 9, 2016 will remain valid until the EAD's expiration date. However, students should keep in mind DHS will not automatically convert 17-month STEM OPT EADs to 24-month EADs. Instead, F-1 students with at least 150 days of OPT remaining have until August 8, 2016 to apply for the additional 7 months of work authorization permitted under the new rule. 

Eligible F-1 students, along with their employers, will need to complete and sign the new, required STEM OPT Training Plan when requesting the OPT extension from their schools' international student offices. Once students obtain the updated Form I-20 from their schools, they will then need to file a new Form I-765 with USCIS before the August 8, 2016 deadline.

Before signing the Training Plan, employers should be aware of the attestation and reporting requirements under the DHS's new rule. Please contact the attorneys at Iandoli Desai and Cronin by email at info@iandoli.com if you have questions regarding STEM OPT extension requests, the upcoming deadline, or the new employer reporting and attestation requirements.

Nebraska Service Center now accepting some H-1B extension requests

Effective July 1, 2016, the Nebraska Service Center ("NSC") has begun accepting certain types of H-1B and H-1B1 (Chile / Singapore Free Trade) petitions. Employers may file H-1B and H-1B1 petitions with the NSC where they are requesting a "continuation of previously approved employment without change of the same employer" (per Part 2, Question 2, Box b. on Form I-129) and if the employer is requesting an extension of the beneficiary's current H-1B or H-1B1 status or notification of a consular office or port of entry (per Part 2, Question 4, boxes a., c., or e.). The NSC will also accept any concurrently filed H-4 Form I-539 Applications to Exchange/Change Nonimmigrant Status and any I-765 Application for Employment Authorization for eligible H-4 spouses.

The alert from USCIS, issued on June 1, 2016, indicates the California Service Center ("CSC") and the Vermont Service Center ("VSC") may continue to accept H-1B and H-1B1 petitions during this transition period, which ends August 31, 2016. Cap-exempt employers should continue to file their H-1B petitions with the CSC, and petitioners requesting premium processing should continue to file their H-1B petitions with either the CSC or the VSC according to the Form I-129 Direct Filing Addresses page until further notice.

Comment period closes for proposed USCIS fee increases

On May 4, 2016, the Department of Homeland Security ("DHS") published a proposed rule to increase USCIS filing fees an average of 21% across all application types and to add a few new fees to its existing fee schedule. USCIS indicated it was seeking fee increases for the first time in 5 years in order to cover its current costs for processing a variety of applications. A full copy of the notice and proposed fee changes can be found on the Federal Register website, and a summary of a few of the proposed fee changes can be found on our website. The notice and comment period, originally set to close on July 5, 2016, was extended to July 6, 2016, with DHS having received at least 340 public comments.

Changes to E-Verify accounts

Effective August 1, 2016, the Department of Homeland Security ("DHS") announced that users of its E-Verify program who have not accessed E-Verify for 270 days or more will begin to see their user IDs deactivated. To avoid deactivation, employers who use E-Verify will want to ensure they log into their E-Verify account regularly - and at a minimum employers should set reminders to log in at least once every 9 months.

E-Verify is a free, internet-based system offered by DHS to allow employers to determine the eligibility of their employees to work in the U.S. Since 1986 U.S. law has required employers to verify worker eligibility and to maintain records through the use of form I-9. E-Verify was officially introduced in 2007 after a pilot program that allowed employers to electronically verify worker eligibility in the U.S. The program has grown to over 602,000 participating employers verifying over 13 million employees each year. While E-Verify is an optional program for most employers, it is a required program for certain federal contractors and for any employer who seeks to employ F-1 students during their additional two years of work authorization in the U.S. following graduation as part of the STEM OPT program.

U.S. v Texas

On June 23, 2016 the U.S. Supreme Court issued its opinion in the closely-watched case of U.S. v. Texas. The Court's opinion totaled only nine words: "The judgment is affirmed by an equally divided court." The court's 4-4 ruling demonstrates the significance of the death of Justice Antonin Scalia and the Senate's inaction on confirming Merrick Garland, President Obama's nomination to Supreme Court.

U.S. v. Texas was the culmination of an injunction granted to the State of Texas (joined by seventeen other states in their lawsuit) over President Obama's proposed Executive Actions on Immigration, originally announced in November 2014. The President's Actions included the expansion of the existing program for Deferred Action on Childhood Arrivals ("DACA") and the addition of a new program for Deferred Action for Parents of Americans ("DAPA"). These programs sought to assist individuals brought to the U.S. as children who are without status in the U.S. and the parents of U.S. citizens and permanent residents who are without status. Under both programs, the eligible individuals would be permitted to remain in the U.S. and work without fear of deportation.

On February 16, 2015, a federal judge in Texas issued an injunction to prevent implementation of these two programs (expanded DACA and DAPA), a decision the Obama administration appealed. On November 9, 2015, in a 2 - 1 decision, the 5th Circuit Court of Appeals in New Orleans affirmed the District Court's decision, halting President Obama's expanded DACA and DAPA programs. The Obama administration appealed and in April 2016 argued its case before the U.S. Supreme Court. With its divided decision last month, the Supreme Court's decision leaves the 5th Circuit Court of Appeals' decision in place, effectively blocking the President's Executive Actions for now. U.S. v. Texas, like other equally divided Supreme Court decisions, does not set precedent and thus is not a binding decision on any future cases concerning Executive Authority or immigration.  A full copy of the Supreme Court's opinion, along with briefs filed with the Court, can be found on the court's website.

Determining whether a bona-fide employer-employee relationship exists under the new STEM OPT regulations

The Department of Homeland Security's new 24 month STEM OPT rule went into effect on May 10, 2016. Employers and F-1 students should be aware of the major changes to the STEM OPT program.  In particular, some employers may no longer be able to hire F-1 STEM OPT students. In response to public comments concerning whether self-employed students, temporary staffing agencies, and start-up companies (formed and staffed by the F-1 student) would qualify as "employers" under the new regulations, DHS stated: 

Response. There are several aspects of the STEM OPT extension that do not make it apt for certain types of arrangements, including multiple employer arrangements, sole proprietorships, employment through "temp" agencies, employment through consulting firm arrangements that provide labor for hire, and other relationships that do not constitute a bona fide employer-employee relationship. One concern arises from the difficulty individuals employed through such arrangements would face in complying with, among other things, the training plan requirements of this rule. Another concern is the potential for visa fraud arising from such arrangements. Furthermore, evaluating the merits of such arrangements would be difficult and create additional burdens for DSOs. Accordingly, DHS clarifies that students cannot qualify for STEM OPT extensions unless they will be bona fide employees of the employer signing the Training Plan, and the employer that signs the Training Plan must be the same entity that employs the student and provides the practical training experience. DHS recognizes that this outcome is a departure from SEVP's April 23, 2010 Policy Guidance (1004-03). (emphasis added)

A full copy of the new OPT STEM regulations is available on the Federal Register's website. If you have questions regarding whether your employer-employee relationship will qualify for the new 24-month STEM OPT extension, please contact an attorney at Iandoli Desai & Cronin P.C. at info@iandoli.com.

USCIS now accepting inquiries for extension of stay / change of employer petitions pending for more than 210 days

As many of our clients have noticed, a number of Form I-129 petitions requesting an extension of status or change of employer have been pending with USCIS for over 8 months (240 days). The majority of the Form I-129 petitions experiencing these delays affect H-1B employees. As a result of this backlog, employers and foreign nationals have needed to upgrade a large number of petitions to premium processing, at a cost of $1,225 per petition, in order to permit foreign nationals to travel abroad or receive their approval notice in a timely fashion. While USCIS has not provided an official explanation for these unprecedented delays, last month the agency publicized efforts to address the situation. On April 21, 2016, USCIS announced they were implementing a new system to permit employers or their attorneys of record to inquire about the status of certain Form I-129 petitions that have been pending for more than 210 days. 
 
Employers and attorneys can either submit a request online at  https://egov.uscis.gov/e-Request/Intro.do (select the option "case is outside normal processing time") or by calling the National Customer Service Center at 1-800-375-5283 (TDD for deaf and hard of hearing: 1-800-767-1833).  To check on a case status, one must be ready to provide the receipt number, filing date, and the foreign national employee's date of birth.