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EIG Dispatch – March 13, 2015

March 13, 2015

Highlights

  • H-2B Adjudications Temporarily Suspended by USCIS
  • Changes Made to UK’s Tier 2 Work Visas and Visitor Visas
  • DHS Urges Optional Practical Training Expansion Judgment

H-2B Adjudications Temporarily Suspended by USCIS 

Following the federal court order in Perez v. Perez, USCIS announced on March 9, 2015, that it will temporarily suspend adjudication of Form I-129 H-2B petitions for temporary non-agricultural workers. USCIS’s actions follow the Department of Labor’s (DOL) decision to no longer accept or process requests for prevailing wage determinations or applications in reference to temporary labor certifications in the H-2B program.

The federal court ruled on March 4, 2015 that the DOL lacked authority to enforce its 2008 H-2B regulations and vacated the regulations effective immediately. Because of this ruling, the DOL cannot accept or process prevailing wage determinations or labor certification applications related to the H-2B program. Since H-2B petitions must include valid labor certifications issued by the DOL, USCIS temporarily suspended adjudication of H-2B petitions.

USCIS also notified the public that starting March 6, 2015, it will suspend premium processing for all H-2B petitions until further notice. If a petitioner has already filed an H-2B petition using the premium processing service and the agency did not act on the case within the 15-calendar-day period, USCIS will issue a refund.

Changes Made to UK’s Tier 2 Work Visas and Visitor Visas

The UK Home Office has announced several changes to the Tier 2 General visa and Tier 2 Intra Company Transfer (ICT) that will take effect April 6, 2015. All UK companies that would like to sponsor foreign workers in the UK must first hold a Sponsor License with the Home Office. The Tier 2 General visa will now require the job position to be advertised for twenty-eight days, and the company must be able to prove there is no suitable UK resident eligible for the job. However, positions that will pay a salary over £153,500 will not require advertising. If the foreign worker will be applying for a visa outside of the UK, a restricted certificate of sponsorship will be requested from the Home Office. The Tier 2 General Visa can lead to permanent residency and eventually British citizenship.

The Tier 2 ICT visa will require the foreign worker to have been employed by the company in a position abroad for at least 12 months before applying for the visa. However, the position will not require advertising. The maximum amount of time a Tier 2 ICT visa holder can stay in the UK is five years.  Foreign workers with a Tier 2 visa must earn at least the minimum salary for their visa category or the minimum salary for their particular job title, whichever is higher. In addition, the Tier 2 minimum salaries will be increased by 1.2%.

The Home Office also announced the consolidation of UK visitor visas into four categories: (1) visit (standard), (2) marriage/civil partnership visit, (3) permitted paid engagement visit, and the (4) transit visit. Business visitors may travel as standard visitors, but may only participate in a limited number of permitted activities such as business meetings, conferences, or training sessions. The visitor visa is not permitted for employment or to provide services in the UK, and the maximum period a visitor may stay in the UK is six months in any 12-month period.

DHS Urges Optional Practical Training Expansion Judgment

As an update to our previous report, on March 6, 2015, the U.S. Department of Homeland Security (DHS) urged the D.C. federal judge, Honorable Ellen S. Huvelle, to award summary judgment upholding the agency’s 2008 interim rule expanding the optional practical training (OPT) program for certain foreign national science and technology students. The case was argued last March when the Washington Alliance of Technology Workers (Washtech), a union representing U.S. science, technology, engineering, and math (STEM) workers, filed suit against the DHS challenging its authority to expand the OPT program. Washtech argues that the OPT program injures its members by increasing competition and circumventing the H-1B cap for highly-skilled workers.

The DHS argues it acted under its scope of congressional authority when it extended the OPT program from 12 to 35 months. DHS’s motion for summary judgment argues that the interim final rule was a reasonable interpretation of the F-1 foreign student statutory provision. DHS goes on to argue that the court should give substantial deference to the agency’s interpretation due to the authority delegated to the DHS secretary under the Immigration and Nationality Act and the Homeland Security Act.

Currently, the OPT program allows students or recent graduates on F-1 visas to temporarily work for up to 12 months, while studying or post-graduation. The new interim rule proposed by the court has yet to be finalized but would allow OPT to be extended from 12 to 17 months for F-1 students with STEM degrees. Washtech urged the court to vacate this 17-month STEM OPT extension and bar the DHS from expanding the OPT program to greater than 12 months in the future.

EIG will continue to monitor the outcome of this case and provide updates with regard to the period of authorized employment with the OPT program.