Note on the New Labor Condition Application (LCA) form for H-1Bs, H-1B1s and E-3s

On November 19, 2018, US Department of Labor published a new Form 9035/9035E, Labor Condition Application (LCA), which must be filed and certified prior to filing any H-1B, H-1B1 or E-3 petition.

The new form requires the additional information of the worksite addresses, aside from the employer’s address and legal business name of the employer, as well as the legal business name of the third-party client site.

Otherwise, there is nothing new, except for H-1Bs where the employee has a US masters degree. For cases in which the beneficiary is qualifying as a US masters degree holder, the new form requires the employer to complete separate form, Appendix A, which requests: 1) the name of the university that awarded the beneficiary’s masters degree; 2) the field of study, or major; 3) the date of the masters degree; and documentation.

New H-1B Proposed Rule Unlikely to be Implemented in Time for 2020 FY H-1B Season

According to a new proposed rule published December 3, 2018, petitioner employers who want to file H-1B petitions subject to the cap, as well as US masters cap cases, would first have to electronically register with USCIS during a fixed registration period. USCIS would then randomly choose from among the registered employers only as many as would meet the H-1B cap visa quotas. Thus, only employers selected through the registration process would be able to file H-1B cap-subject petitions.

Only if there were fewer employer registrations than there are visa numbers available, would any employer be allowed to file a cap-subject H-1B petition, up until the visa numbers have been used up. Given the very high demand for H-1B visa numbers, this scenario is unlikely.

Employers not selected for registration would remain in a reserve system for that fiscal year, whereby if USCIS later decides it needs to increase the number of registrations to meet the cap or advanced degree exemption, USCIS would select additional employers from those in the pool of reserves.

This means that employers will save money by not having to prepare and file large (or small) numbers of H-1B petitions without knowing ahead of time whether one or more may be lucky enough to get a visa number. Only those employers whose registration is selected wil be able to go ahead and file H-1B petitions.

Once the projected number of employer registrations towards regular H-1B cap cases is reached, USCIS would then select employer registrations eligible for the US masters degree exemption. Thus, there would be a change in the order of meeting the cap quotas. In the past, USCIS has first selected US masters degree holders towards the 20,000 exemption, and then after has selected the regular 65,000 H-1B cap subject cases. DHS believes that this change will mean that more beneficiaries with a US masters degree (or higher) will be chosen in the H-1B lottery.

DHS predicts that this new procedure will increase the number of US masters degree holders who receive H-1B visa numbers by about 16%.

The new rule is unlikely to be effective in time for the 2020FY H-1B season. As you all may know, all H-1B cap-subject petitions should be filed by the first five business days in April 2019. The notice and comment period for the new rule is open until January 2, 2019, after which DHS has to review the comments and finalize the rule. Additionally, DHS will have to create a new online system for employer registration for cap-subject H-1Bs, which may then need to be tested prior to deployment. Also, the final rule will have to be published with an effective date.

Thus, employers should go ahead with preparing their H-1B petitions for this upcoming H-1B season to be ready to file by April 1, 2019, which is a Monday.

F-1 Foreign Students Need to Choose Their Majors Carefully, to Obtain the STEM Two-Year Extension of Work Authorization

F-1 foreign students with a degree in a STEM (Science, Technology, Engineering and Math) major are eligible for a total of three years of work authorization, while F-1 students with other majors are eligible for only one year of work authorization. However, there are various definitions of STEM, and USICE (US Immigration and Customs Enforcement) has their own list defining which are STEM degrees. Whether a degree qualifies as a STEM degree is not entirely intuitive, and F-1 students need to choose their majors carefully to make sure they qualify as STEM degrees.

USICE (immigration and Customs Enforcement) has a list of all degree programs which fall under STEM, and make a graduate eligible for a two-year extension of OPT (Optional Practical Training), for a total of three years of work authorization. Thus, graduates with STEM majors can seek a total of three years of work authorization, while those with all other majors can apply for only one year of work authorization after graduating. You can check whether a particular major makes you eligible for the additional two-years of work authorization by checking the list at The list is quite broad, and starts out with Agroecology and sustainable Agriculture, and includes many fields such as Animation, Interactive Technology, Video Graphics and Special Effects, Artificial Intelligence, many IT and computer science majors, many Engineering majors, Architectural Drafting, CAD, Biopsychology, Behavioral Sciences, many fields in Psychology, a myriad of Veterinary majors, Management Science, among many others.

What may be surprising is that the list does not include most fields in healthcare, with a few exceptions. For example, the STEM list of majors does not include Nursing, Physical Therapy, Occupational Therapy, Dentistry, Speech Language Pathology, Chiropractic, or other healthcare fields. An MD (Medical Doctor) is not included in the STEM list. Thus, however obvious that these degrees are related to science and technology, they are not included on the STEM list, and so those graduates in the healthcare professions are eligible for only one year of OPT and will not be able to get the additional two-year STEM extension.

Biological and Biomedical Sciences, which are included in the STEM program, consist of the non-clinical biomedical sciences and biological sciences. Healthcare professions are not included in this grouping. So, for example, Radiation Biology, CIP Code 26.2209, which is the study of the effects of radiation on living organisms and biological systems, is included as a STEM degree but Radiologic Technology/Science, CIP Code 51.0911, which prepares you to provide medical imaging services to patients, is not a STEM degree.

What are the exceptions? Which healthcare fields would qualify as STEM majors? Various majors in Psychology, Veterinary Science, and Pharmaceutical Sciences all qualify as STEM majors. Pharmaceutical Sciences is a little tricky. Pharmaceutical Sciences, CIP Code 51.2010, qualifies as a STEM major, but Pharmacy, CIP Code 51.2099, does not. However, a Pharmaceutical Sciences degree does not equip you to practice as a pharmacist, rather to work in the fields of drug research and development, drug testing and analysis, or pharmaceutical sales and marketing. A Pharmaceutical Sciences degree does not qualify you to take the licensing exam to be a pharmacist, but a student who wants to be a pharmacist could initially get a bachelor’s degree in Pharmaceutical Science, which qualifies as STEM, and then get their Doctor of Pharmacy (Pharm. D.) which does not qualify as STEM. Because their bachelor’s degree is a STEM degree, the graduate would qualify for the three years of work authorization pursuant to STEM, even though his or her most recent degree was in a non-STEM field.   Thus, those wanting to go into a healthcare profession, but who also want the three years of work authorization through STEM, would have to obtain two degrees, one a STEM degree and one in the healthcare field of their choice. Regardless of which degree was the most recent, the graduate would be able to obtain the two-year extension of work authorization due to their STEM degree.

Many TPS Beneficiaries Now Eligible for Green Cards

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Many people who have TPS (Temporary Protected Status) will now be eligible for adjustment to permanent residency even if they entered the U.S. illegally, thanks to a new decision by the Ninth Circuit Court of Appeals in California. In Ramirez et al. v. Brown, the court held that, under the Immigration and Nationality Act, a TPS beneficiary is considered to be in lawful status as a nonimmigrant and has satisfied the requirements for becoming a lawful permanent resident, even though he or she may have illegally entered the U.S. You still need a basis for your adjustment to permanent residency, such as a marriage or other family petition or PERM labor certification and I-140. The Ninth Circuit decision covers only people residing in certain states. In addition to the Ninth Circuit, the Sixth Circuit has also made the same ruling. Thus, this will benefit residents of the states of Alaska, Arizona, California, Hawaii, Idaho, Kentucky, Michigan, Montana, Nevada, Ohio, Oregon, Tennessee and Washington. The Second and Third Circuits have not yet made any decision on this issue.

TPS is intended for immigrants who are temporarily unable to return to their home country because of armed conflict, an environmental disaster or other extraordinary condition. TPS currently covers certain individuals from El Salvador, Guinea, Haiti, Honduras, Liberia, Nepal, Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan, Syria and Yemen. To be eligible for TPS, you must be a national of the designated country, or a stateless person whose last habitual residence was that country, have been living in the U.S. since a certain date, made a timely application, or meet the requirements for late filing, and not have been convicted of a felony or two or more misdemeanors, and other grounds.

The Trump administration has announced that it is ending TPS for Haiti as of January 22, 2018. TPS for Honduras is also set to expire on January 5, 2018 as well as TPS for El Salvador on March 9, 2018. TPS for Syria is to expire March 31, 2018. TPS for Yemen is set to expire September 3, 2018. The Trump administration has not confirmed whether or not TPS for any other countries will be extended or terminated as well.

To be on the safe side, TPS beneficiaries should apply for adjustment to permanent residency, if they have a basis for eligibility, such as a relative petition or employment petition, prior to the expiration of their TPS so they will be in legal status on the date they apply.

US State Dept Plans to Gather Social Media Info & Email Addresses from Certain Visa Applicants of All Countries

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On May 4, 2017, the U.S. State Department proposed that the government now be able to request all social media information, email addresses and phone numbers of visa applicants from any and all countries, whom they choose to subject to additional scrutiny. Claiming an “emergency”, the US State Department provided less than two weeks for public comment, up to May 18, 2017. See 82 Fed.Reg. 84 (May 4, 2017).

In addition to requesting all social media information, email and phone numbers for the past five years, the US State Dept would also request information on all siblings, children, spouses, former spouses, and civil or domestic partners, and 15 years employment and residence history. The government would also request 15 years of the applicant’s travel history, including the source of funding for each trip, among other information.

The US State Department has provided the following information for those who want to comment on the proposed rule:

” • Email: oira_submission@ You must include the DS form number (if applicable), information collection title, and OMB control number in the subject line of your message. • Fax: 202–395–5806. Attention: Desk Officer for Department of State. You may submit comments to Bureau of Consular Affairs, Visa Office by the following methods: • You may submit comments to Bureau of Consular Affairs, Visa Office by the following methods: • Web: Persons with access to the Internet may comment on this notice by going to You can search for the document by entering ‘‘Docket Number: DOS–2017–0019’’ in the Search field. Then click the ‘‘Comment Now’’ button and complete the comment form. • Email: PRA_BurdenComments@ You must include Emergency Submission Comment on ‘‘Supplemental Questions for Visa Applicants’’ in the subject line of your comment.”

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