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 https://www.ice.gov/sites/default/files/documents/Document/2016/stem-list.pdf. 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@ omb.eop.gov. 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 www.Regulations.gov. 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@ state.gov. You must include Emergency Submission Comment on ‘‘Supplemental Questions for Visa Applicants’’ in the subject line of your comment.”

Opportunity to Comment on CBP's Collection of Social Media Info

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You have the opportunity to comment on US Custom and Border Protection’s (CBP’s) collection of social media information on Chinese citizens with 10-year B-1 or B-2 visas. All Chinese citizens with a 10-year B-1 or B-2 visa are now required to register with CBP through the Electronic Visa Update System (EVUS). The list of questions includes “optional” questions regarding an applicant’s social media accounts and use. CBP may extend the EVUS system to citizens of other countries as well.

You have up to May 30, 2017 to comment on the following: 1) whether collection of applicants’ social media information will have “practical utility”; 2) the estimated costs and burden to the federal government; 3) how to enhance the quality and usefulness of the information collected; and 4) ways to reduce the costs and burden of their procedures. Comments should be addressed to the OMB Desk Officer for Customs and Border Protection, Department of Homeland Security, and sent via electronic mail to oira_submission@omb.eop.gov or faxed to (202) 395–5806.

Millions of people coming to the U.S. from Visa Waiver Program (VWP) countries are already being asked to “volunteer” their social media information. Regarding the collection of social media information from VWP entrants, the ACLU commented in August 2017:

“The proposed expansion of the existing questionnaire would significantly increase the invasiveness of the information collected not only about foreign travelers, but also about their U. S. citizen social media contacts, and have a chilling effect on their communications. It would also increase the complexity of the visa waiver decision-making process…

The proposed change would collect social media identifiers from millions of individuals deemed least likely to have terrorist connections and would result in the collection of personal information on the tens of millions of social media contacts of those individuals, many of whom would be U. S. citizens or residents…”

This will make the decision to admit someone to the US highly subjective and subject to abusive behavior on the part of CBP officers, not to mention the enormous waste of resources on checking people’s Facebook and other social media accounts. People with B-1 or B-2 visas have already been subjected to extensive security checks and have been found not to be a security risk. As pointed out by Jeff John Roberts in Fortune on December 23, 2016, “would-be terrorists, even dim-witted ones, would be unlikely to disclose their social media profile to the U.S. government.”

President Trump's "Buy American and Hire American" EO Fosters Nativism, Although it Will Not Bring Immediate Change in the Law

University of Maryland Eastern Shore

On April 18, 2017, President Trump signed an Executive Order (EO) entitled “Buy American and Hire American”, stating that it will be U.S. government policy to “rigorously enforce and administer the laws governing entry into the United States of workers from abroad”, as well as “to maximize…through terms and conditions of Federal financial assistance awards and Federal procurements, the use of goods, products, and materials produced in the United States”. The EO is very short, and while it speaks in broad, sweeping terms, it does not provide any specifics of how this will be implemented. Instead, it requests federal agencies, including the U.S. Department of Labor, the U.S. Department of Justice, the Department of State, and the Department of Homeland Security, to propose new federal rules to protect U.S. workers and to root out fraud and abuse in the immigration system. It specifically singles out the H-1B program and calls on federal agencies to “suggest reforms to help ensure that H–1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

However, it does not create any immediate legal changes to the H-1B program or to other work visa categories. This would take time, as after making reports to the President, the federal agencies would have to go through the rule-making process whereby they would draft and publish new proposed rules, and allow the public time to respond before issuing a final rule. Or, Congress would have to pass a new law changing the process.

On the other hand, President Trump’s new EO contributes to the negative rhetoric targeted at immigrants, and fails to recognize the valuable contributions that immigrants make to our economy and to creating jobs for US workers. It fails to acknowledge that most H-1Bs are for foreign workers to fill positions for occupations for which there is a shortage of US workers. The federal government has already acknowledged that there is a shortage of American workers to fill positions in the STEM (Science, Technology, Engineering and Math) fields, and its legislation reflects that. It is better to have a highly-skilled foreign worker come to the US with his or her family to fill a position, than to have that job shipped overseas and out-sourced. Not only would the US lose jobs but also these well-paid foreign workers become US consumers, spending money at local businesses in the community and stimulating the economy. Employers are willing to spend huge amounts of money on USCIS filing fees and other expenses to bring foreign workers here because they just cannot find enough US workers with the appropriate skills.

President Trump’s short EO has certain phrases that have become a mantra among US government bureaucrats, inflaming prejudices against foreigners, and negatively affecting the exercise of discretion in USCIS examiners’ adjudication of cases. USCIS examiners have a great deal of leeway to approve or deny employment petitions on behalf of foreign workers, and with a negative mindset contrary to the facts and the needs of companies and the economy, government workers once again are being encouraged to deny meritorious cases, harming America’s chances of attracting the best and the brightest, and hobbling economic advancement.

USCIS Announces it Has Reached the FY 2018 H-1B Cap on April 7th, 2017

This is the fifth straight year that the H-1B cap has been reached within the first few days of filing in April. The first day to file H-1B petitions for this fiscal year was April 3rd, 2017 and on April 7th, USCIS announced that it had received more than enough H-1B petitions for the 2018 fiscal year. The USCIS will conduct a lottery to decide which applications will get one of the 65,000 H-1B general visa numbers, and the 20,000 H-1B visa numbers for beneficiaries with US masters degrees.

New Travel Ban Exempts Iraqis, Permanent Residents, and Other Current Visa Holders. Important Legal Issues Remain.

CBS Miami 03 24 2014

According to the DHS Fact Sheet, Protecting The Nation From Foreign Terrorist Entry To The United States issued March 5, 2017:

The new Executive Order imposes a 90-day suspension of entry to the United States of foreign nationals from Sudan, Syria, Iran, Libya, Somalia, and Yemen who are outside the United States on the effective date of the order, March 16, 2017, do not currently have a valid visa on the effective date of this order, and did not have a valid visa at 5:00 eastern standard time on January 27, 2017, are not eligible to travel to the United States. The 90-day period is to allow a review and establishment of standards to prevent terrorist or criminal infiltration by foreign nationals.

Iraqi citizens are exempted from the new EO, as Iraq is to increase cooperation with the U.S. Government on the vetting of its citizens applying for visas.

In the first 20 days, DHS will perform a global, country-by-country review of the identity and security information that each country provides to the U.S. Government to support U.S. visa and other immigration benefit determinations. Countries will then have 50 days to comply with requests from the U.S. Government to update or improve the information they provide.

The Executive Order does not apply to lawful permanent residents; foreign nationals admitted to the United States after March 16, 2017; individuals with a document that is valid as of March 16, 2017 or after which permits travel to the US; dual nationals when traveling on a passport issued by a non-designated country; foreign nationals traveling on diplomatic, NATO, C-2 for travel to the United Nations, G-1, G-2, G-3, or G-4 visas; and individuals already granted asylum or refugee status in the United States before March 16, 2017.

The EO provides for the exercise of discretion, on a case-by-case basis, to issue visas or allow entry of nationals of these six countries into the United States upon proof that the denial of entry would cause undue hardship, that there is no threat to national security, and that his or her entry would be in the national interest.

The Refugee Admissions Program will be suspended for the next 120 days. Refugee admissions to the United States will not exceed 50,000 for fiscal year 2017. The EO does not apply to those refugees who have already been formally scheduled for transit by the State Department. During this 120-day period, similar to the waiver authority for visas, the Secretary of State and Secretary of Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis.

USCIS is Suspending Premium Processing for All H-1B Petitions, Including New Cap-Subject Petitions

Starting April 3rd, USCIS is suspending premium processing of all H-1B petitions. Since April 1st is a Saturday and April 2nd is a Sunday, that means that no one will be able to request premium processing for new, cap-subject H-1B petitions. USCIS is trying to catch up with long-pending H-1Bs filed through regular processing. See below informational alert from USCIS:

USCIS Will Temporarily Suspend Premium Processing for All H-1B Petitions

Starting April 3, 2017, USCIS will temporarily suspend premium processing for all H-1B petitions. This suspension may last up to 6 months. While H-1B premium processing is suspended, petitioners will not be able to file Form I-907, Request for Premium Processing Service for a Form I-129, Petition for a Nonimmigrant Worker which requests the H-1B nonimmigrant classification. We will notify the public before resuming premium processing for H-1B petitions.

Who Is Affected

The temporary suspension applies to all H-1B petitions filed on or after April 3, 2017. Since FY18 cap-subject H-1B petitions cannot be filed before April 3, 2017, this suspension will apply to all petitions filed for the FY18 H-1B regular cap and master’s advanced degree cap exemption (the “master’s cap”). The suspension also applies to petitions that may be cap-exempt.

While premium processing is suspended, we will reject any Form I-907 filed with an H-1B petition. If the petitioner submits one combined check for both the Form I-907 and Form I-129 H-1B fees, we will have to reject both forms.

We will continue to premium process Form I-129 H-1B petitions if the petitioner properly filed an associated Form I-907 before April 3, 2017. Therefore, we will refund the premium processing fee if:

  1. The petitioner filed the Form I-907 for an H-1B petition before April 3, 2017, and
  2. We did not take adjudicative action on the case within the 15-calendar-day processing period.

This temporary suspension of premium processing does not apply to other eligible nonimmigrant classifications filed on Form I-129.

Requesting Expedited Processing

While premium processing is suspended, petitioners may submit a request to expedite an H-1B petition if they meet the criteria on the Expedite Criteria webpage. It is the petitioner’s responsibility to demonstrate that they meet at least one of the expedite criteria, and we encourage petitioners to submit documentary evidence to support their expedite request.

We review all expedite requests on a case-by-case basis and requests are granted at the discretion of the office leadership.

Why We Are Temporarily Suspending Premium Processing for H-1B Petitions

This temporary suspension will help us to reduce overall H-1B processing times. By temporarily suspending premium processing, we will be able to:

  • Process long-pending petitions, which we have currently been unable to process due to the high volume of incoming petitions and the significant surge in premium processing requests over the past few years; and
  • Prioritize adjudication of H-1B extension of status cases that are nearing the 240 day mark.
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