March 2016 Immigration Bulletin is Out!
Marks Gray P.A. Mar 15, 2016 in News
Hello, and Welcome to our March Immigration Update!
As an immigration attorney and two-time immigrant, I am often asked to share my thoughts on America’s immigration policies, particularly now, when immigration has been a hot-button issue on the presidential campaign trail. Regardless of your thoughts on the current immigration proposals, the issues and values surrounding immigration frame our nation and affect us all.
Successive waves of immigrants have kept our country young, enriched and innovative. Many of these immigrants give me strength and serve as an inspiration. Celebrate with me the contributions and successes of some of these remarkable people. Read more…
While celebrating inspirational people, we’d like to congratulate one of Marks Gray’s own! We are pleased to announce that Marks Gray attorney, Mary Bland Love, received the 2016 Ehrlich Trial Advocacy Award from the Jacksonville Bar Association. The Award recognizes a lawyer from the local legal community whose career has embodied those qualities to which trial lawyers aspire. Ms. Love is the first woman to ever receive the award. Read more…
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Thank you for your readership, support and referrals.
DHS Releases New 24-Month STEM OPT Extension Rule
The new 24-month STEM OPT Extension rule is helping employers and students who are trying to secure a new H-1B visa breathe a sigh of relief as they now potentially have 3 years of opportunities for filing. However, this extension comes with new requirements that both employers and students must be prepared to fulfill. Below are some highlights of the rule:
1) OPT STEM increases from 17 to 24 months beyond the 12-month post-graduation OPT generally allowed. (Effectively providing 36 months of OPT.)
2) Students who subsequently enroll in a new academic qualifying program may now earn another 24-month STEM OPT extension.
3) The student must be employed by an E-Verify registered employer.
4) The rule will continue to provide cap-gap relief and enable students to extend their F-1 status and employment authorization until October 1, if they filed a cap-subject H-1B on time.
5) It is only available to students with qualifying STEM degrees from accredited schools.
6) The employer and student must develop formal training plans that identify the objectives to be accomplished during the OPT training period.
7) The F-1 student may only remain unemployed during the initial 12-month for up to 90 days, and the new rule allows for an additional 60 days (for a total of 150 days) for those on STEM OPT extension.
This new rule will replace the existing 2008 interim final rule, and will take effect on May 10, 2016. To stay up to date on this extension rule, visit our blog.
H-1B Visa Season Fast Approaching
On April 1, 2016, the new H-1B season begins, which means employers can file petitions for professional foreign workers with bachelor’s degrees or equivalent experience.
This year, the demand for new H-1B visas is again expected to be high and the cap is likely to be met. Employers have the first five days following the opening of filing to file their petitions. If you are considering filing a new H-1B petition, please contact us immediately as the timeline is very short and there is a significant amount of work that needs to be done prior to filing.
Proposed Elimination of the 90 Day EAD Adjudication
One of the most concerning proposals of USCIS’ “improvements” affecting high-skilled immigrant workers is the removal of the 90 day time frame for USCIS to adjudicate an Employment Authorization Document (EAD). Instead, USCIS proposes to allow for automatic extension of EAD’s in some limited cases as outlined below.
The proposal provides for the automatic extension of employment authorization for 180 days for certain categories so long as the I-765 application is for the same employment authorization category; the application is filed before the expiration of the EAD; the applicant remains eligible for employment authorization after the expiration of the current EAD; and the employment authorization is not dependent on any other approval/process.
This extension will only be available to 15 categories of employment authorization, including adjustment of status applicants. However, this extension will not be available to the employment authorized dependent spouse categories, such as H-4, L-2 and E-2/-1.
The comment period for this proposal ended February 29, 2016. USCIS is expected to have received a significant amount of comments which it needs to evaluate. We will continue to follow this proposal and provide updates.
O-1 Extraordinary Ability Memo Provides New Clarity for Professional Athletes and other Qualified Fields
USCIS issued a memo to clarify and expand when an employer may submit comparable evidence for the O-1A Extraordinary Ability work visa. This visa classification is used to provide work authorization to highly qualified individuals in the sciences, arts, education, business or athletics, among other fields.
Before this memo, an employer had to prove that none of the other O-1 qualifying criteria was applicable before the employer could submit “alternative or comparable evidence.” Under this memo, the employer “must only show that a particular criterion does not readily apply to the beneficiary’s occupation” before the employer can offer comparable evidence. The employer will not be required to show that all or a majority of the criteria does not apply before comparable evidence may be considered. However, the employer will need to explain why a criterion does not apply and why alternative evidence is comparable. This clarification will allow professional athletes to have greater flexibility in satisfying the O-1 visa criteria.
For more information on the visa options for Pro Athletes and other highly skilled professionals, check out our blog.
Visa Waiver Program (VWP) Further Restrictions
The VWP is used by nationals from 38 qualifying countries to travel to the U.S. visa free using the Electronic System for Travel Authorization (ESTA). In 2014, about 20 million people visited the U.S. using the VWP.
However, in mid-February, the Department of Homeland Security announced that it is continuing to make changes restricting the use of the VWP.
The new changes restrict the travel of dual nationals who are citizens of both a VWP country and nationals of Iran, Iraq, Sudan, Syria, Libya, Somalia and Yemen. These individuals will no longer be able to travel to the U.S. using ESTA and will have to apply for a visa at a consular post abroad before traveling to the U.S.
This new rule will also apply to individuals of a VWP country who have traveled to or been present in these seven countries on or after March 1, 2011.
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