USCIS has announced that as of May 2, 2016, it has completed all data entry for H-1B cap petitions selected in the “lottery” for consideration in the FY2017 cap. We expect that all receipt notices for selected petitions will be received within the next seven to 10 days. USCIS also will now return all petitions that were not selected, a process that will take several weeks.

​Although no new H-1B hires may be made, employers may be able to take advantage of other visa categories, as follows:

• B-1 - The B-1 category allows a foreign national to enter the United States to participate in business activities on behalf of a foreign employer.  Generally, a person in B-1 status may not engage in productive employment in the United States.  Allowable B-1 activities include consulting/meeting with business associates, attending a professional conference, participating in training, or negotiating contracts.  The “B-1 in lieu of H-1” might be used where the foreign national would qualify for H-1B status, but their employer is not based in the U.S. and they are coming to the U.S. for a short period of time.  This type of B-1 status does permit productive work in the U.S., but the person must be employed by and continue to be paid by the overseas employer.
• E-3 - The E-3 category is limited to nationals of Australia and is capped at 10,500 per fiscal year, although that quota has never been filled.  The substantive requirements of the E-3 are very similar to H-1B category.  There must be an offer of employment in a “specialty occupation” and the individual must possess a bachelor’s degree or the equivalent in a field related to the employment.
• TN - The North American Free Trade Agreement (NAFTA) between the U.S., Canada, and Mexico allows for simplified immigration travel between and among the three countries.  For purposes of employment in the U.S., citizens of Canada and Mexico who are coming to the U.S. to work in certain professions may be eligible to enter in TN status.  To qualify for TN status, the foreign national must be a citizen of Canada or Mexico, must have a prearranged offer of employment in the U.S., and must meet the educational/experience qualifications for the occupation, which are also specifically set forth in the NAFTA regulations.  In addition, NAFTA limits TN status to individuals working in one of a specifically enumerated list of occupations.
• E-1 / E-2 - The E-1/E-2 categories require that the person be a national of a country with which the U.S. has an appropriate treaty of commerce and that the prospective employer is majority owned by nationals of that same treaty country or by corporate entities having the “nationality” of the treaty country.  These owners/corporate entities must either have made a “substantial” investment in the U.S. or there must be “substantial” trade between the U.S. and the treaty country.  In addition, the offered position must be executive or supervisory, or involve “essential skills.”
• F-1 - The F-1 student visa category permits employment under various circumstances, most commonly through Curricular Practical Training (CPT) or Optional Practical Training (OPT). There is a 12-month limit on OPT unless the person has a designated STEM (Science, Technology, Engineering, or Mathematics) degree and the employer participates in the e-Verify employment verification program, in which case an additional 29 months of post-graduation OPT is available.
• L-1 - The L-1 visa category allows U.S. employers to transfer employees of related overseas entities to work temporarily in the U.S.  The U.S. and foreign entities must have a corporate relationship sufficient to support L-1 status, the employee to be transferred must have worked for the related employer overseas for at least one year, and the offered position must be managerial/executive or must involve “specialized knowledge.”
• O-1 - The O-1 category is available for persons of extraordinary ability who can document sustained national or international acclaim in their field.

Finally, there are various visa categories available for training that might be useful in certain circumstances.

As always, please contact us with any questions.

On January 15, USCIS published a final regulation that will offer greater predictability and opportunities for employers and foreign workers in the H-B1, E-3, and CW-1 categories, as well as those applying for permanent residence as an Outstanding Professor or Researcher.

The most significant part of the regulation, which is effective on February 16, 2016, is the application of continued work authorization to H-1B1, E-3, and CW-1 temporary workers with a pending, timely filed extension of stay petition. As background, the H-1B1 and E-3 categories allow nationals of Chile and Singapore (H-1B1) and Australia (E-3) to work in specialty occupations in the U.S. The CW-1 category covers employment solely in the Commonwealth of the Northern Mariana Islands (CNMI).

The regulations have for many years provided up to 240 days of continued work authorization to temporary workers in the E-2, H-1B, J-1, L-1, O-1, and TN categories who have a pending, timely filed application for extension of stay filed by the same employer. The new regulation extends this 240-day period to workers in the H-1B1, E-3, and CW-1 categories.

If an employer files an extension petition for a worker in any of these categories prior to the expiration date of the current petition, the employee has continued employment authorization for up to 240 days from the date of expiration of the current petition if USCIS does not approve the extension before that date. This welcome change will put H-1B1, E-3, and CW-1 workers on equal footing with other similarly situated workers and will prevent lost wages and lost productivity caused by an inability to continue working while awaiting an extension.

Another key element of the regulation is the broadening of evidence that petitioners can submit in support of EB-1 immigrant petitions to classify outstanding professors and researchers for permanent residence. To qualify as an outstanding professor or researcher, current regulations require the professor or researcher to prove international recognition by submitting specific documentation to meet at least two out of a list of six criteria.

The new regulation allows for the submission of “comparable evidence” to the specific documentation already required by the regulation. This expansion of the type of acceptable evidence harmonizes the EB-1 outstanding professor and researcher category with other similar categories, such as EB-1 for those with “extraordinary ability” and EB-2 for those with “exceptional ability.”

The new rule makes some additional technical modifications so that the affected sections are consistent with both the Immigration and Nationality Act and other, related regulations, including clarifying that H-1B1, E-3, and CW-1 workers do not require employment authorization separate from the approved petition and adding the H-1B1 and E-3 categories to the procedural regulations governing petitions for extension of stay.

Please contact us with any questions.