HIGHLIGHTS

• UPDATE: Appropriations Bill Enacted, Affecting Several Immigration Programs
• U.S. Department of Homeland Security Proposes Rule to Modernize Employment-Based Immigration
• Overwhelmed by Comments, DHS Seeks Extension for STEM OPT Program Rule Review

UPDATE: Appropriations Bill Enacted, Affecting Several Immigration Programs

As an update to a previous article, the end of year Omnibus Appropriations Bill for 2016 was passed on December 18, 2015, and signed into law by President Obama. As anticipated, the Bill included several changes to immigration programs.

First, the supplemental fees for L-1 and H-1B petitions doubled for companies with more than 50 employees in the U.S., where more than 50% of those employees are in L-1 or H-1B status.  For these companies, the L-1 supplemental fee is $4,500 and the H-1B supplemental fee is $4,000.  The fee, which takes effect immediately, applies to both initial and extension petitions and will be in effect until at least September 30, 2025. The additional funds raised by the fee increase will go towards 9-11 programs and the biometric entry/exit system and programs.

The Bill also integrates an act passed earlier by the U.S. House of Representatives which reforms the Visa Waiver Program (VWP), called the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015.   Individuals who have been present on or after March 1, 2011 in Syria, Iraq, or any other country known for sponsoring terrorism, or that is a DHS-designated “area of concern,” will be prohibited from entering the U.S. under the VWP.  Beginning April 1, 2016, all eligible VWP applicants must have machine readable, electronic, and fraud resistant passports. Additionally, countries who participate in the VWP must certify that they are compliant with passport requirements and must report lost or stolen passports to Interpol within 24 hours.

Other changes include the extensions of the EB-5, Conrad, and Special Immigrant Religious Worker programs, and the E-Verify electronic verification system until September 30, 2016. The Bill also makes changes to the H-2B Program, including a reinstated exemption from the 66,000 cap for returning H-2B workers.

U.S. Department of Homeland Security Proposes Rule to Modernize Employment-Based Immigration

The U.S. Department of Homeland Security (DHS) has proposed regulatory changes to the employment-based immigration process. The proposed changes could allow some beneficiaries of approved I-140s to obtain work authorization, enjoy greater employment flexibility, and provide relief for individuals facing adjustment delays.   Although the details of the proposed rule have not been released, the July 2015 White House Report, Modernizing & Streamlining Our Legal Immigration System for the 21^st Century, included recommendations for improving employment-based immigration procedures and specifically sought ways to:

• Increase the ability of workers waiting for a green card to change jobs or receive promotions by clarifying when individuals may change jobs or employers because such employment is the “same or similar” to the job that was the original basis for permanent residency;
• Further increase job flexibility by enabling individuals whose employment-sponsored immigrant visa petitions have been approved for more than one year to retain eligibility for LPR status despite closure of the sponsoring business or the petitioning employer’s desire to withdraw the approved petition; and
• Provide increased guidance on job flexibility provisions for H-1B workers seeking other H-1B employment, including changing jobs or employers.

Currently foreign nationals may be required to restart the green card process because of a promotion or job change. The Proposed Rule is currently under review by the Office of Management and Budget and, if released, would likely be made public by next year. Stay tuned to the Dispatch for updates and details as they become available.

Overwhelmed by Comments, DHS Seeks Extension for STEM OPT Program Rule Review

In a case heard by the U.S. District Court for the District of Columbia in August, the rule granting a 17-month extension of the Optional Practical Training (OPT) Program was struck down as a result of the U.S. Department of Homeland Security’s (DHS) violation of the public notice and comment process. The Court provided DHS with a six-month extension to submit a new rule following the procedural requirements of notice and comment. During the provided extension, DHS received an overwhelming 50,500 comments from U.S. and foreign students, U.S. workers, schools, universities, professional associations, labor organizations, and advocacy groups on the new regulation. As a result, on December 22, 2015 DHS filed a Motion for Limited Relief from the Court’s Order, requesting more time to effectively review and assess each comment before completing the rulemaking process.

The OPT Program provides an opportunity for foreign students to gain work experience by allowing them to work in the U.S. for a limited period after graduation and before returning to their home country. The current OPT program allows extensions of up to 17 months for students graduating with a degree in a science, technology, engineering, or math (STEM) field. The proposed rule at issue extends the length of the STEM OPT Program to 35 months, allowing students additional opportunities to gain meaningful work experience.

If the court rejects DHS’s request for more time, the current regulation will expire before it is replaced by the new regulation. EIG will continue to monitor this case closely and provide updates as they become available.