ALTERNATIVES TO THE H-1B LOTTERY
Please contact us soon so we can explore various U.S. and global visa categories for employers and non-selected H-1B lottery employees to consider. Whether you are sending this employee overseas or transferring his or her status to H-3, J-1, O-1, day-one CPT, EB-1A, EB-2 NIW or EB-5, we will jointly work in finding the most suitable visa category within the following framework:
- Non-H-1B non-immigrants visa options
- Entrepreneur visas
- Intra Company transfer visas
- Remote and nomad work visas
- Important considerations for U.S. companies: international employment laws, tax implications, payroll, privacy and information security, etc.
COMPELLING CIRCUMSTANCES EAD
In November 2016, as part of the issuance of a final rule entitled “Retention of EB–1, EB–2, and EB–3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers” [commonly known as the “High-Skilled” Final Rule], USCIS amended its regulations to allow certain nonimmigrants with approved Form I-140 petitions to apply for an independent employment authorization document (EAD) provided the individual demonstrates “compelling circumstances.” This USCIS final rule became effective on January 17, 2017. How does a nonimmigrant qualify for a compelling circumstance EAD?
How does a nonimmigrant qualify for a compelling circumstance EAD?
To qualify for a compelling circumstance EAD, the nonimmigrant must satisfy the following criteria, as set forth at 8 CFR §204.5(p): 1. be the principal beneficiary of an approved Form I-140 petition for classification under the EB-1, EB-2 or EB-3 visa categories; 2. be in the United States in E-3, H-1B, H-1B1, O-1, or L-1 nonimmigrant status, including in any applicable grace period, on the date the application for employment authorization (Form I-765) is filed; 3. establish that an immigrant visa is not authorized for issuance to the principal beneficiary based on his or her priority date, preference category, and country of chargeability according to the Final Action Date in effect according to the Department of State's Visa Bulletin on the date the application for employment authorization is filed; and 4. the principal beneficiary demonstrates compelling circumstances that, in the discretion of USCIS, justify an independent grant of employment authorization. Note further that an individual will not be eligible for a compelling circumstances EAD, including renewal, if the individual has been convicted of any felony or two or more misdemeanors. Please contact our office at 212 571 6002 to learn more on this.
NEW CONSULAR FEES GO INTO EFFECT MAY 30
In December 2021, the State Department proposed a revised fee schedule which included severe increases in the filing fees across all types of nonimmigrant visas. After much backlash and months of public comment, the proposed fee schedule has been modified and reflects much lower fee hikes than originally expected. The new fees, which will go into effect and apply to any applications filed after May 30,3023, are as follows:
Non-petition based nonimmigrant visas (except E visas) increase from $160 to $185. H, L, O, P, Q, and R visas increase from $190 to $205. E visas increase from $205 to $315. Border crossing card for Mexican citizens aged 15 and older increases from $160 to $185.
BIPARTISAN LEGISLATION INTRODUCED IN THE SENATE TO REFORM H-1B AND L-1 VISA PROGRAMS
The H-1B and L-1 Visa Reform Act, which was introduced in the United States Senate earlier this year, seeks to reduce fraud in the immigration system, provide protection for US workers and visa holders and require employers to be more transparent in their hiring process for prospective foreign employees.
Among the most significant changes to the current H-1B and L-1 programs, this Act, if passed, will place new wage, recruitment, and attestation requirements on employers who are engaged in the hiring of H-1B and L-1 employees. Employers will also be required to post these job notices on the Department of Labor website. Lastly, DOL aims to hire an additional 200 DOL employees by instituting a fee associated with Labor Condition Applications. This legislation is slated to help provide greater job security for these employees at a time when hundreds of thousands of STEM workers have been laid off. According to the Washington Post, nearly 200,000 IT workers have been laid off in the last 6 months, 30 to 40% of whom are Indian nationals and working in the United States of H-1B and L-1 visas.
DOS WILL ALLOW J-1 SPONSOR TO DIGITALLY SIGN FORM DS-2019
Starting April 27, 2023, a Department of State interim rule will allow J-1 sponsors the ability to use digital signature software to sign J-1, Certificates of Exchange Visitor Form DS-2019 and submit the signed Form electronically. DOS will still accept paper filings with signatures in blue or black ink, this is merely an additional option to streamline and simplify the process.