United States: Time To Think About The H-1B Cap Season And Your Employment Needs (October 2016)

On April 1, 2017, U.S. Citizenship and Immigration Services (USCIS) will begin accepting new H-1B petitions for professional positions. We note that these petitions will have a start date of October 1, 2017.

Please review your employment needs now to determine whether you wish to sponsor any of your current or prospective employees for H-1B status. This includes those professionals already employed by you in F-1 Optional Practical Training status, E-3 status, TN status, J-1/J-2 status or L-1B status, and any individuals you may wish to bring on board on or after October 1, 2017.

We expect that the H-1B quota will be fully subscribed within the first five business days of April. In 2016, USCIS received over 236,000 H-1B petitions for only 85,000 spots (inclusive of petitions filed for the advanced degree exemption). Since we will be filing all of our clients' H-1B petitions on March 31, 2017, please let us know starting now and no later than mid-January of the H-1B cases that you would like us to prepare, and please send us all of the information (including completed questionnaires) as soon as possible. If you have any questions or need additional information about this alert, please feel free to contact us.

L-1 Site Audits Underway

The Fraud Detection and National Security (FDNS) Directorate of USCIS is now conducting extensive L-1 site audits throughout the country. It appears that these initial L-1 site audits are focusing on the worksites of L-1A managers and executives who obtained initial approvals or extensions of stay through USCIS Service Centers (although we expect these visits to subsequently expand to include inspections of the worksites of L-1Bs with approved extensions). The requests for documentation are much more extensive than H-1B audits, with FDNS asking for copies of the employer's articles of incorporation; state certificates to do business; company organizational charts with names, titles, emails and phone numbers of all employees; copies of annual performance appraisals completed for the beneficiary and all subordinates; lists of direct employees; and more.

If you do not respond promptly and appropriately to a request for documentation following a site audit, FDNS will recommend that USCIS revoke your employee's approved L-1 petition. We therefore encourage you to contact our office for counsel if you become subject to a site audit from FDNS for your L-1 filing (or for any of your other nonimmigrant visa filings). We also advise that you prepare your office reception staff in advance for the possibility of a site visit, and that you designate an employee (and a backup employee) to serve as the "go to" person for such visits.

Critical Immigration Programs Reauthorized (for Now)

A resolution passed by Congress late last month funds the federal government, including key immigration operations, through December 9. The interim funding measure temporarily extends the E-Verify electronic employment eligibility verification system and the EB-5 Regional Center permanent residence program for foreign investors, among other programs.

The passage of the temporary reauthorization means that there will be no interruption of federal immigration operations for now, but a federal shutdown remains a possibility if there is no agreement on the fiscal year (FY) 2017 federal budget by December 9. If a budget agreement is not reached and a shutdown occurs later this year, all Department of Labor immigration-related functions would be completely suspended, which could impact preparations for the H-1B cap filing season (as labor condition applications (LCAs) – the first step in the H-1B process – will not be accepted for processing). To minimize the impact of a potential December government shutdown, please assess your upcoming need for LCA filings in the coming weeks, including LCAs for potential H-1B transfers or extensions.

USCIS Proposes Temporary Period of Stay for Certain Foreign Entrepeneurs

USCIS has published a regulatory proposal which would allow up to five years of temporary stay for qualifying foreign entrepreneurs who establish a U.S. startup entity that has "substantial" U.S. investment and the potential for U.S. job creation. The program would not provide an immigration status to approved applicants. Rather, qualifying entrepreneurs would receive parole (a discretionary permission to remain in the United States). They would not be eligible for permanent residence unless qualified under another U.S. immigration status (such as an H-1B, O-1 or L-1).

To qualify, the applicant must meet certain criteria. The applicant must establish a U.S. startup business within three years before the application for parole, and must hold at least a 15 percent ownership interest in the startup venture. Furthermore, the startup must have received a capital investment of at least $345,000 from certain qualified U.S. investors with established records of successful investments (or at least $100,000 in grants or awards from qualifying U.S. federal, state or local government entities), and the applicant must play "an active and central role" in the startup's operations.

Under the proposed rule, entrepreneurs would be granted an initial stay of up to two years to oversee and grow their startup entities in the United States. Qualifying dependents would also receive parole for up to two years, and spouses would be eligible to apply for employment authorization. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide significant public benefits, as evidenced by substantial increases in capital investment, revenue or job creation.

After the public comment period for this proposed regulation closes, USCIS will review the feedback it receives and prepare to issue a final version of the regulation (which may differ in some ways from the proposal described above). The entrepreneur parole program would not be implemented until the final regulation is approved (which could take many months).

This program is a welcome development, in that it helps fill a gap in the U.S. immigration system by allow promising foreign entrepreneurs who might not meet the eligibility criteria of existing visa programs to remain in the United States to grow their businesses and create jobs for U.S. workers. We will provide additional updates about this important program as they become available.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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