USCIS Suspends Premium Processing for H-1B Extensions for Two-Month Period

06 / 05 / 2015

U.S. Citizenship and Immigration Services (USCIS) announced that beginning May 26,
premium processing of H-1B Extension of Stay petitions will be suspended until July
27. USCIS will refund the premium processing filing fee if a petitioner filed an
H-1B Extension of Stay petition with a premium processing request prior to May
26 and USCIS fails to act on the case within 15 calendar days.

The reason for this announcement is that on May 26, USCIS began accepting applications
for work authorization for H-4 spouses of H-1B employees. USCIS stated that the
two-month suspension of premium processing for H-1B extension petitions is necessary
to allow the agency to timely process the anticipated large volume of H-4 work authorization
applications.

Premium processing remains available for all other H-1B petitions, including those
that are subject to the H-1B cap where petitioners are requesting a change of nonimmigrant
status, H-1B change of employer petitions requesting consular notification, and
H-1B petitions requesting an amendment.

Alternatives to the H-1B Visa

If you needed an H-1B this year and did not get one, or you are worried that you
will not be able to hire the right people this year because there are no H-1B visas
available, then you may be interested in this article. There are a number of ways
to work around the H-1B cap. Some of the options are obvious and some are creative.
The following discussion describes a number of options that McCown & Evans has used
in the past to help our clients secure the services of foreign employees. We welcome
your inquiries and look forward to discussing these options with you.

1. Exemptions From H-1B Cap:

Certain categories of H-1B employers are exempt from the annual numerical limit
placed on new H-1B visas. These employers may qualify to sponsor H-1B employees
at any time during the year, and even after the H-1B cap has been reached. The following
is a list of the pertinent categories of “cap-exempt” employers.

a. Institutions of higher education

Generally speaking, these are universities, teaching hospitals, or other educational
organizations above the high school level.

b. Non-profit research organizations or governmental research organizations

These are organizations that have as their principal function the conduct of basic
and/or applied research, usually in the sciences, social sciences, or humanities.
Basic research is defined as research that advances scientific knowledge. Applied
research is defined as research to gain knowledge to determine the means by which
a specific, recognized need may be met, usually having specific commercial objectives.
It is possible for a non-profit organization that is not entirely committed to research
to argue that it is primarily engaged in research activities.

c. Non-profit organizations affiliated to institutions of higher education

For non-profit organizations, this is a flexible category. It is possible to enter
into an affiliation agreement with a university or other institution of higher education
for a wide variety of purposes. McCown & Evans has assisted a number of non-profit
organizations to formalize relationships with universities for the purpose of qualifying
for a cap exemption under this category, including a legal services provider, a
medical organization, and a software development association.

One creative solution for a prospective H-1B employee who was not selected under
the cap is for the employee to first gain part-time H-1B employment through sponsorship
by a cap-exempt employer (i.e. a university, non-profit research organization, or
non-profit organization affiliated with a university) and then file a concurrent
part-time H-1B petition with U.S. Citizenship and Immigration Services (USCIS)
for a cap-subject employer. In such circumstances, neither petition will be subject
to the H-1B cap.

2. J-1 Exchange Visitor Visas:

a. J-1 Trainees

J-1 visas are available to individuals participating in on-the-job training programs
and therefore are often good options for newly-hired employees who will be learning
skills particular to a company’s systems, procedures, or technologies. J-1 programs
for trainees allow foreign nationals to complete paid or unpaid training programs
with private companies or non-profit organizations. The company or organization,
or its attorneys, may work with an approved J-1 program sponsor to acquire J-1
visas for prospective trainees. In order to qualify as a J-1 trainee, the foreign
national must enter the U.S. to participate in a structured and guided work-based
training program in his or her field and meet one of these requirements:

* The foreign national must have a degree or professional certificate from a foreign
post-secondary academic institution and at least one year of related work experience
in his or her field acquired outside the U.S; OR
* The foreign national must have five years of related work experience outside the
U.S. in his or her field.

The J-1 trainee can be admitted to the U.S. for a period of up to 18 months. Upon
the completion of a J-1 training program, the individual may not apply for an additional
training program until he or she has resided for two years outside the U.S.

b. J-1 Interns

J-1 programs for interns also allow foreign nationals to enter the U.S. to participate
in work-based internship programs to build on academic experience or to develop
practical skills in the academic or career field. In order to qualify as an intern,
the foreign national must meet one of these requirements:

* The foreign national must be currently enrolled in and pursuing studies at a degree
or certificate granting post-secondary academic institution outside the U.S.; OR
* The foreign national must have graduated from a degree or certificate granting
post-secondary academic institution outside the U.S. no more than 12 months prior
to the internship program start date.

The maximum duration for an internship program for a J-1 intern is 12 months, but
an individual may participate in an additional internship in certain situations.
If the individual no longer qualifies for an internship because he or she no
longer has student status abroad or is not within 12 months of graduation, the individual
can potentially apply for J-1 trainee status.

Dependents (spouses and unmarried children under 21 years of age) of J-1 exchange
visitors are entitled to J-2 status, and may qualify for work authorization in the
United States as long as the employment is not required for the support of the principal
J-1 exchange visitor. A viable strategy for a prospective H-1B worker who was not
selected under the cap and who does not qualify for J-1 status might be for the
individual’s spouse to obtain a J-1 Trainee or Intern visa, which will allow the
prospective H-1B worker to apply for work authorization as a J-2 dependent.

J-1 exchange visitors are expected to return to their home countries after completion
of training in the United States and, while there is often no bar to a J-1 visa
holder obtaining H-1B or another work-authorized status in the future, the State
Department and J-1 Program Sponsors are increasingly likely to penalize employers
who sponsor a foreign national to participate in a J-1 training or internship program
and later sponsor the same person for a work visa such as an H-1B. In addition,
some J-1 trainees or interns may be subject to a two-year foreign residence period
following completion of their J-1 programs if the training or internship category
falls under the “Skills List” of skills identified as being in short supply in the
J-1 visa holder’s country of last residence, or if the J-1 program involves financial
support from the U.S. government or the person’s foreign government. If the two-year
foreign residence requirement applies due to the Skills List, no-objection waivers
are available and are generally possible to obtain. Waivers of the two-year foreign
residence requirement based on receipt of government funding are much more difficult
to obtain.

3. “Cap Gap” Employment Authorization for Students with Optional Practical Training:

Students currently in F-1 status in the United States and granted a period of Optional
Practical Training (OPT, or STEM OPT) that was valid until at least April 1, 2015
were eligible to file an H-1B petition on April 1, 2015 under the FY 2016 H-1B cap,
requesting a change of status from F-1 to H-1B. Such students are work authorized
under the “cap gap” if there is a gap between their OPT expiration and the start
of their H-1B authorization on October 1. This means that even if their OPT expires
before their H-1B status begins on October 1, 2015, such students may continue working
during this period under “cap gap” work authorization, which will be valid through
September 30, 2015.

4. STEM Extension of Optional Practical Training Employment Authorization:

Certain students currently in F-1 status in the United States may extend their 12-month
period of post-completion Optional Practical Training (OPT) for an additional 17
months of STEM OPT (for a total of 29 months). To qualify for this extension, the
following criteria must be met:

* The student must be in a current period of post-completion OPT based on graduation
from a bachelor’s, master’s, or doctorate degree in science, technology, engineering,
or mathematics that has been designated as a “STEM field” by Immigration and Customs
Enforcement (ICE);
* The student must obtain a Form I-20 from his/her university authorizing the STEM
OPT extension and file an application for an Employment Authorization Document (EAD)
on Form I-765 before the current period of post-completion OPT expires;
* The student must be employed by (or have an offer of employment from) a U.S. employer
in a field directly related to the student’s major area of study; and
* The student’s current or prospective employer must be enrolled in the Department
of Homeland Security’s E-Verify employment verification program.

5. OPT/CPT Work Authorization:

One option for a prospective H-1B employee who was not selected under the cap is
for the employee to enroll in a degree program with a U.S. university and obtain
F-1 status in order to apply for either Optional Practical Training (OPT) or Curricular
Practical Training (CPT). OPT or CPT authorization would be approved at the discretion
of the U.S. university, which would also authorize whether the F-1 student can work
part-time, full-time, immediately upon commencing the new academic program, etc.
This OPT/CPT authorization might allow the prospective H-1B employee to continue
working for the U.S. employer until H-1B authorization can be obtained in a subsequent
year.

6. E-2 Investor Visas:

The E-2 treaty investor classification allows individuals who are nationals of countries
with which the United States maintains certain treaties to come to the United States
to run businesses in which they have made a “substantial” investment and in which
they have at least a 50% ownership stake. Whether the actual amount invested is
substantial depends on the type of business and the amount normally necessary to
establish a viable enterprise. In most cases, an investment of $100,000-$150,000
will be sufficient.

The E-2 category also allows U.S. companies with treaty nationality (i.e. at least
50% ownership by individuals who are nationals of a treaty country) to sponsor employees
having that same nationality on E-2 visas. A current list of the treaty countries
can be found at this website: http://travel.state.gov/content/visas/english/fees/treaty.html
[http://travel.state.gov/content/visas/english/fees/treaty.html]

E-2 visas can be issued for up to five years and are renewable indefinitely as long
as the company and the visa holder continue to qualify for E-2 status.

Dependents (spouses and unmarried children under 21 years of age) of E-2 visa holders
are also eligible for E-2 dependent visas, and E-2 spouses may apply for work authorization
in the United States. A viable strategy for a prospective H-1B worker who was not
selected under the cap might be for the individual’s spouse to obtain an E-2 investor
visa, which will allow the prospective H-1B worker to apply for work authorization
as an E-2 dependent.

7. O-1 Visas:

O-1 visas are available to people with extraordinary ability in the sciences, arts,
education, business, or athletics, as demonstrated by their achievement of sustained
national or international acclaim. These visas serve as excellent replacements for
H-1B visas for employees who have a record of high achievement. Individuals seeking
to qualify for O-1 status must demonstrate their achievements through extensive
documentation from objective sources in their occupational field, including expert
affidavits, contracts, awards, and other documentation.

National or international acclaim can be demonstrated by receipt of a major internationally-recognized
award, such as the Nobel Prize, or by documenting accomplishments in at least three
of the following categories:

* Receipt of nationally or internationally recognized prizes or awards for excellence
in the field;
* Membership in an association in the field that requires outstanding achievement
of its members, as judged by recognized national or international experts;
* Published material in professional or major trade publications or major media
about the prospective employee;
* Judgment of the work of others in the field;
* Original scientific, scholarly, or business-related contributions of major significance
in the field;
* Authorship of scholarly articles in the field in professional journals or other
major media;
* Current or previous employment in a critical or essential capacity for organizations
and establishments that have a distinguished reputation;
* High salary or other remuneration commanded for services in relation to others
in the field, as evidenced by contracts or other reliable evidence; or
* Other comparable evidence.

Dependents (spouses and unmarried children under 21 years of age) of O-1 workers
are entitled to O-3 status. However, dependents in O-3 status are not authorized
to work in the United States.

8. L-1 Intracompany Transferee Visas:

Companies can apply for an L-1 visa for an employee who, within the three preceding
years, has been employed outside the United States for a continuous year by a parent,
subsidiary, or affiliate company. The employee must be coming to work in the United
States in a managerial/ executive (L-1A), or specialized knowledge (L-1B) capacity.

L-1 visa status may generally be approved for up to three years, and can be extended
for up to a total of seven years for the L-1A category or five years for the L-1B
category. After the end of the maximum L-1 period of stay, an individual must reside
outside of the United States for a full year before becoming eligible to reapply
for H or L status.

Generally speaking, it is much easier to obtain L-1A authorization from USCIS than
it is to obtain L-1B authorization, due to the very restrictive view of what USCIS
believes constitutes “specialized knowledge.” However, multinational companies that
have an approved L-1 Blanket petition may sponsor new L-1A and L-1B candidates without
having to file a petition with USCIS. Such companies may have L-1 candidates present
a visa application directly to a U.S. embassy or consulate abroad. This means that
the Department of State makes the decision on the L-1 eligibility, not USCIS, which
results in more predictable/successful adjudications as well as saving time and
money. The requirements to file an L-1 Blanket petition are as follows:

* The U.S. company has at least three U.S. and foreign branches, subsidiaries, and
affiliates; and
* The U.S. copmany along with the other qualifying organizations meet one of the
following criteria:

* Have obtained at least 10 L-1 approvals during the previous 12-month period; or
* Have U.S. subsidiaries or affiliates with combined annual U.S. sales of at least
$25 million; or
* Have a U.S. work force of at least 1,000 employees.

Dependents (spouses and unmarried children under 21 years of age) of L-1 workers
are entitled to L-2 status and L-2 spouses may apply for work authorization in
the United States. A viable strategy for a prospective H-1B worker who was not selected
under the cap might be for the individual’s spouse to obtain an L-1 visa, which
will allow the prospective H-1B worker to apply for work authorization as an L-2
dependent.

9. Free Trade Visas for Citizens of Canada, Mexico, Australia, Chile, and Singapore:

The United States has created special visas under its free trade agreements with
Canada, Mexico, Australia, Chile, and Singapore. Therefore, if a company is seeking
to hire an employee who is a citizen of one of these countries, there is a chance
that there will be a visa option for that employee that is free from any annual
quota issue. The visas for Australia (E-3 visa), Chile (H-1B1 visa), and Singapore
(H-1B1 visa) are virtually identical to the H-1B visa in their eligibility criteria.
Therefore, if the prospective employee would have qualified for an H-1B visa, then
he or she will probably qualify for the E-3 or H-1B1 visa. Canadian and Mexican
employees seeking TN visas face a different set of qualifying criteria because TNs
must be employed in one of the qualifying occupations on the list established under
NAFTA. Companies seeking to hire a person using a TN visa are advised to seek advice
from McCown & Evans regarding eligibility criteria.

Dependents of H-1B1 and TN visa holders are not allowed to work in the United States.
Dependent spouses in E-3D status, however, may apply for work authorization in the
United States. A potential strategy for a prospective H-1B worker who was not selected
under the cap and who does not qualify for E-3 status because he or she is not an
Australian citizen might be for the individual’s Australian spouse to obtain an
E-3 visa, which will allow the prospective H-1B worker to apply for work authorization
as an E-3D dependent.

10. H-3 Trainee visa

U.S. employers can sponsor foreign workers for training for up to 24 months using
an H-3 trainee visa. Unlike J-1 visas, which allow for on-the-job training, H-3
visas are for more formal training that does not involve productive work or where
the productive work is not an essential part of the training. The training also
must be of a sort that is not available in the individual’s home country and the
training must aid the individual in pursuing a career outside of the United States.
H-3 training plans must be very detailed and the means of instruction must include
a classroom component.

The H-3 visa can be filed with a request for premium processing, so USCIS will act
on the case within 15 calendar days of receipt of the petition. Dependents (spouses
and unmarried children under 21 years of age) of H-3 visa holders are eligible for
H-4 dependent visas, but H-4 spouses of H-3 workers are not allowed to work in the
United States.

11. Permanent Residence (Green Card) Processing:

The permanent residence process usually involves three distinct stages of processing.
During the third stage of processing, called Adjustment of Status, the foreign national
beneficiary qualifies to remain and work lawfully in the United States until the
green card is approved. In certain green card categories, it is possible to initiate
the permanent residence process by concurrently filing an I-140 immigrant petition,
Adjustment of Status application, and EAD application, resulting in work authorization
being approved in about three months. These I-140 immigrant petition categories
include:

* EB-1 Extraordinary Ability – for criteria, see http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1
[http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1]
* EB-1 Outstanding Professor or Researcher – for criteria, see http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1
[http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1]
* EB-2 National Interest Waiver – for criteria, see http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2
[http://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-second-preference-eb-2]

Therefore, for a foreign national employee who has at least three months of remaining
lawful status either through F-1 OPT, J-1 visa status, or another lawful status,
it may be possible to devise a strategy by which the employee qualifies to remain
legally in the United States and obtains work authorization through the permanent
residence process without first obtaining H-1B status.

Note that the foreign national employee’s “priority date” must be current to file
an Adjustment of Status application together with an EAD application, so the EB-2
National Interest Waiver category will not be a viable option for quick employment
authorization for an employee who was born in India or China, since the EB-2 category
has long wait times (several years) for those countries.

For those born in a country other than India or China, the EB-2 National Interest
Waiver option for quick authorization is particularly compelling and flexible. To
qualify, applicants must show that they have a particularly high level of skill
in their field of endeavor and that their work benefits the country as a whole.
A person seeking a national interest waiver may self-petition, which means that
the person would not need an employer sponsor.

12. Employment Authorization for Dependent Visa Holders:

It is worth asking your employees about the visa status of their spouses. If your
employee’s spouse has E, L or J-1 status then your employee may apply for the corresponding
dependent status (E-2, E-3D, L-2 or J-2) and then obtain an employment authorization
document (EAD). If your employee’s spouse has an H-1B visa and has reached certain
milestones in the green card process (i.e., has an I-140 approval or has been approved
for an H-1B extension beyond the 6th year based on a PERM application or I-140 petition
filing), then your employee can apply for H-4 status and obtain an EAD.

The processing time for dependent visa EADs is approximately 90 days. The validity
period of the EADs is tied to the validity period of the underlying visa status
of the principal visa holder. So, for example, if your employee’s spouse has 18
months of remaining visa status at the time that your employee files for dependent
visa status and an EAD, then the EAD will be issued for no more than 18 months (less
the processing time of the EAD).