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 Friday, March 11, the Department of Homeland Security (DHS) published a rule expanding Optional Practical Training (OPT) opportunities for F-1 students who have earned a degree in Science, Technology, Engineering, or Math (STEM).
 
The original rule, published in 2008, granted an additional 17 months of OPT work authorization (for a total of 29 months) to STEM graduates whose employers participate in the E-Verify employment verification program. A Federal court vacated the original rule in August 2015, but delayed the effective date of its ruling until May 10, 2016, to allow DHS to develop a new rule.
 
The new STEM OPT rule is effective May 10, 2016, consistent with the court’s order. The rule expands OPT opportunities for STEM graduates, and imposes new obligations on both students and employers.
 
STEM graduates will now be eligible for an additional 24 months of OPT work authorization. Combined with the 12 months of post-completion OPT available to all students, STEM graduates potentially could have 36 continuous months of post-completion OPT work authorization.
 
To be eligible for the additional OPT, a student must have earned a degree in a field of study designated by DHS as a qualifying STEM field. DHS will revise and update the list of acceptable STEM fields based on the U.S. Department of Education’s categorization. The rule retains the requirement that the student’s STEM OPT employer participate in E-Verify.
 
The rule clarifies that a student may obtain a STEM OPT extension based on his or her most recent degree or on a previously earned STEM degree. The STEM OPT employment must relate to the STEM degree field. A student may also obtain a second STEM OPT extension if he or she earns another STEM degree at a higher degree level.
 
In addition to expanding student opportunities for OPT, the rule adds certain reporting requirements for students, places a new focus on the training provided by STEM OPT employers, and adds protections for U.S. workers.
 
The rule requires students to report their name, address, and employment details to their Designated School Official (DSO) every six months, and must report any changes in employment status or deviations from the employer’s training plan within 10 days of the change. Students also must complete and submit to the DSO two self-evaluations during the STEM OPT period.
 
STEM OPT employers must implement a formal, individualized training plan (using DHS Form I-983) and have an annual performance evaluation process in place. Employers may rely on existing training and evaluation processes as long as they meet the STEM OPT requirements. The training plan must:

1. Identify the goals of the training opportunity, including any knowledge, skills, and techniques to be taught
2. Explain how the goals will be achieved
3. Describe the performance evaluation process, and
4. Describe the methods of oversight and supervision

 
STEM OPT employers must assist students with their reporting requirements and attest that they have sufficient resources to provide the training, that they will not use students to replace U.S. workers, and that the opportunity helps students reach their training objectives. In addition, the terms and conditions of the OPT employment, including salary and benefits, must be commensurate with the employer’s similarly situated U.S. workers.
 
Finally, the rule authorizes DHS to conduct site visits to ensure that STEM OPT employers are meeting the program requirements. Generally, these site visits will be announced in advance.
 
We will provide more details about some of these new provisions over the next few weeks. Meanwhile, please contact us with any questions.