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New Year Brings Fiscal Year H-1B Season and More Potential Immigration Developments
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As we start the new year, we have many developments to watch for in 2018.
- Fiscal Year H-1B Season: The USCIS will begin accepting petitions for new H-1Bs (effective October 1, 2018) on April 2. Last year, about 40% of new H-1Bs were selected in the lottery. Weaver Schlenger LLP has begun working with clients to identify employees and candidates who will require or benefit from H-1B status. Prior to filing, employers will need an approved Labor Condition Application (LCA) from the Department of Labor.
If you are an HR or legal professional who is new to immigration, please join us on January 19 for a
free webinar
where we will discuss the H-1B requirements, lottery, and effects of the Buy American, Hire American (BAHA) executive order.
- In-Person Adjustment of Status Interviews: All applicants for adjustment of status who filed applications after March 6, 2017 will be scheduled for in-person interviews. This requirement went into effect as of October 1, 2017 and may further lengthen the Form I-485 processing times as the USCIS trains officers and schedules the appointments.
- No more deference to previous NIV approvals: The USCIS' recent policy memorandum means that all nonimmigrant visa extensions (H-1B, L-1, TN, etc.) will be reviewed for eligibility as if the filing was a brand new request.
- Continued BAHA Influence: As reported in The New York Times, BAHA will likely continue to impact all aspects of business immigration, especially issuance of Requests for Evidence (RFEs). Nonimmigrants applying for visa stamps and returning to the U.S. should be prepared to address all issues of eligibility.
- Travel Ban: The U.S. Supreme Court allowed the 3rd Travel Ban to take full effect while being reviewed by a U.S. Appeals Court, which means that individuals from the listed 8 countries (Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea and Venezuela) face varying degrees of limitations on their ability to come to the U.S., and there are no exceptions for those with close ties to the U.S. Please see our website post for a full description of the limitations per country.
- NAFTA being renegotiated: the governments of Canada, Mexico and the U.S. are in the midst of renegotiating NAFTA. Provisions relating to the movement of professionals across the North America borders are likely to be changed. In a recent policy memo, the USCIS substantially narrowed the definition of the TN Economist category, indicating that market research analysts, marketing specialists and financial analysts no longer qualify under that category.
- H-4 EAD Elimination: The administration has indicated its intention to eliminate the rule allowing H-4 spouses of certain H-1Bs in the green card process to apply for Employment Authorization Documents. The formal announcement is expected no earlier than February though it could be later in the year, and will take a few months beyond that for the rule to take effect.
- Other Changes to the H-1B Program: The Department of Homeland Security is likely to create a pre-registration process for employers seeking to file fiscal year H-1B petitions (likely to be published in Federal Register in February, taking several months to take effect, so not applicable to this year's fiscal year H-1B filings). They are also planning to redefine "specialty occupation" to promote the goal of reserving H-1Bs for the "best and brightest" and redefining the employer-employee relationship to better protect U.S workers and wages (likely to be published in Federal Register in October 2018)
- Changes to PERM Program: In 2017, the PERM program was untouched by the Trump Administration. Expect that to change in 2018, as the PERM program is scrutinized under BAHA.
- DHS Backs Off Elimination of H-1B Extensions: In welcome news, the DHS has indicated it is no longer considering a change in policy which would eliminate the ability of employers to petition for H-1B extensions beyond 6 years for individuals caught in the lengthy wait for green cards.
We expect another dynamic year in business immigration and will continue to post updates to our
website
. If you have questions about any information discussed above, please contact the attorney with whom you normally work at Weaver Schlenger.
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