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Bill Coffman is Of Counsel and is based in the firm’s Boston office. His practice focuses on immigration matters such as nationality law and outbound emigration and related international law. Bill regularly represents clients in immigration matters before the US Citizenship and Immigration Services (USCIS) and the Department of Labor, as well as before US and other consulates. He has been recommended by The Legal 500 United States for Labor & Employment: Immigration and recognized by Best Lawyers in America for Immigration Law. He is also listed in the International Who’s Who of Corporate Immigration Lawyers and was named a Top Author with readers in the semiconductor industry by JD Supra.

Update –  NEW BOSTON EVENT DATE: Due to safety concerns surrounding the recent snow storm, Mintz Levin rescheduled the Boston Immigration Seminar to Thursday, March 2. To register, please click here or see below. We hope you can join us!

On February 9th (Boston) and February 16th (New York), our very own Kevin McNamaraSusan Cohen, and Bill Coffman will lead a live seminar designed for in-house counsel, immigration specialists, HR professionals, talent managers, and other internal stakeholders to review changes affecting the hiring and continued employment of foreign nationals. Topics will include:

  • Worksite visit preparation
  • Record-keeping requirements
  • The new Form I-9 and the importance of E-Verify compliance
  • How to prepare for increased scrutiny at a US port of entry
  • New high-skilled worker regulations
  • Strategies and alternatives for H-1B visa cap and prospects for FY 2018

Don’t miss this important event.  For additional details and registration, please contact Cassie Bent at CMBent@mintz.com!

The UK Home Office has announced plans to offer an optional premium service for requests made through the Sponsor Management System (SMS). This service will allow Sponsors to pay a fee of £200 for expedited processing of certain types of requests including Certificate of Sponsorship allocation and Level 1 user appointment.

This service is being offered in an attempt to address the long processing times that many Sponsors have experienced when making routine requests through the SMS. In some instances, the Home Office has estimated as long as 18 weeks for the processing of requests. Such long wait times can be extremely burdensome on Sponsors who hope to hire recruits from outside of the UK to meet immediate staffing needs.

The law creating this new premium service will go into effect next month. From there, the Home Office will work toward implementation, but a specific timeline for when the service will be available to SMS users has not yet been announced.  We will provide additional information when it becomes available.

Should you have any questions, please contact GlobalVisas@mintz.com.

The diversity visa green card lottery has been an important part of U.S. immigration law for the last 20 years.  It allows 55,000 foreign nationals to immigrate each year and was implemented to fulfill the worthy goal of increasing the diversity of immigrants in the U.S.  This policy is implemented each year after government analysis of the countries of origin of immigrants in other green card categories and then allocating the 55,000 green cards allowed by law amongst those underrepresented countries of origin.

There is another immigration lottery that occurs around this time of year for one of the most essential visa categories to U.S. business—the H-1B. You may have read my post on this subject last year, and unfortunately this year’s post looks quite similar, because almost nothing has changed.  Continue Reading Immigration Policy By Lottery? Another Year, Nothing Changes.

On December 30, 2015, the US Court of Appeals for the 2nd Circuit ruled that US Citizenship and Immigration Services (USCIS) must notify either the beneficiary of an approved I-140 or successor employer, of any intent to revoke the petition prior to revocation (Mantena v. Johnson, Docket No. 14-2476-cv, (2nd Cir., Dec. 30, 2015)).  Continue Reading 2nd Circuit Court Requires I-140 Revocation Notice: Analysis

It’s September 25th, not April 1st! Like a cruel April Fool’s joke, the October Visa Bulletin has just been revised and the new India & China EB-2 filing dates have retrogressed. The instructions in bold type in the new bulletin indicate that this revised bulletin is to be used to determine who is eligible to file on October 1st.

Something similar to this happened in 2007 when the Department of State and Department of Homeland Security got in what may be best described as a spat over advancing visa bulletin numbers. In 2007, the government gave in and ended up allowing filings based on the previous bulletin.

These government agencies will be harshly criticized for releasing a revised visa bulletin only days before the October 1st planned filing date under the initial bulletin issued on September 9th. We are waiting to see if anything changes early next week.

USCIS announced today that it will:

“suspend final adjudication of employment-based Form I-485 applications… because the Department of State reports that the statutory cap has been reached for the employment-based preference categories for fiscal year (FY) 2015.”

However, this is not something to panic about.

As my colleague Michele Frangella wrote about in August, the end of the government’s fiscal year is September 30th. As of today, all available employment-based green cards have been used up so there are no more green card numbers for USCIS to access to approve cases for the next 6 days.  Once the new fiscal year starts on October 1st, they will again have green card numbers officially available. It doesn’t impact eligibility to continue to file I-485 applications based on Visa Bulletin guidance, including those cases newly eligible to file October 1st.

 

Mr. Chairman, I’m pleased to provide my testimony today as a follow-up to previous appearances before this committee. I’ve testified on two other occasions to explain the need for a more certain and predictable way to attract and retain the talent my company and others need—even if that means foreign talent. However, it is apparent that my previous testimony fell on deaf ears. If anything, my explanation of the need for visa availability for high skilled workers has met with more resistance due to political posturing for the 2016 presidential election. Continue Reading A HYPOTHETICAL: Testimony of a U.S. Business Owner Before the U.S. House of Representatives Subcommittee on Immigration and Border Security

On Wednesday, August 12, 2015, the US District Court for the District of Columbia ruled that the US Department of Homeland Security (“DHS”) did not follow required procedures when it promulgated regulations allowing for certain extensions of F-1 Optional Practical Training (“OPT”) employment authorization. However, in a compromise move, the Court vacated the DHS regulation and all subsequent amendments (“vacatur”), but ordered that the vacatur be stayed for six months to February 12, 2016, to allow DHS time to submit the rule again with appropriate notice and comment. There is no immediate impact on STEM or “cap-gap” OPT extensions.

Background
On April 8, 2008, the Department of Homeland Security (DHS) published an Interim Final Rule (IFR) in the Federal Register titled, Extending Period of Optional Practical Training by 17 Months for F-1 Nonimmigrant Students With STEM Degrees and Expanding Cap gap Relief for All F-1 Students With Pending H-1B Petitions (2008 Rule).

This rule extended eligibility for OPT employment authorization for 17 months for graduates from US educational institutions with degrees in science, technology, engineering or mathematics (“STEM”) fields provided  their employer is enrolled in  E-Verify. The impact of this new rule was to allow a period of OPT employment authorization for qualified foreign nationals for 29 months – the initial 12 months of OPT plus the additional 17 months for those with qualifying STEM degrees and E-Verify registered employers. This rule included the so-called H-1B “cap-gap” extension for F-1s with OPT to extend OPT employment authorization with the filing and eventual acceptance of a cap-subject H-1B petition. This rule was implemented with a comment period, but as an interim final rule under an emergency exception to the usual 60-day full notice and comment period as outlined in the Administrative Procedures Act (“APA”).

In March 2014, the Washington Alliance of Technology Workers filed suit in the United States District Court for the District of Columbia alleging DHS acted arbitrarily and capriciously in promulgating the 2008 rule without first subjecting it to a notice and comment period in violation of the Administrative Procedures Act.  DHS argued that in this particular situation, notice and comment requirements could be bypassed under 5 U.S.C. § 553(b), which allows an agency to dispense with the notice-and-comment requirement “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.”  DHS promulgated the rule in 2008 just before the filing period for H-1B visas opened.  The timing, they argued, gave rise to an economic emergency of such a degree as to trigger the good cause exemption in 553(b).

Decision
After significant discussion of the standing of the Plaintiffs (Washington Alliance of Technology Workers) to bring suit and the appropriate level of deference that should be given DHS as the government agency vested with the authority over immigration issues, U.S. District Judge Ellen Segal Huvelle concluded that no deference should be afforded DHS with regard to the emergency exception to normal notice and comment. The Court ruled that DHS’s stated reasons for the emergency exception were too general and not specific enough to constitute an emergency. Therefore, the agency acted improperly in promulgating the OPT extension rule without notice and comment from the public.

However, Judge Huvelle decided that immediately vacating the new rule “would be seriously disruptive” to not only thousands of F-1s in the US with currently valid employment authorization who would have to scramble to depart the US, but also to employers if STEM employees have to suddenly leave their employment.

Impact
The judge’s decision jeopardizes the current STEM OPT program, but does not invalidate the employment authorization for current STEM extension holders, nor does it preclude an individual from applying for and being granted a STEM extension up until February 12, 2016. With the six month vacatur, DHS should have sufficient time to issue the rule again for notice and comment and finalization prior to February 12, 2016. If DHS follows the Court’s direction, there should continue to be no impact on STEM or “cap-gap” OPT extensions. We will continue to monitor this important development and provide updates as new information becomes available.

U.S. Citizenship and Immigration Services (USCIS) released final guidance on a recent Administrative Appeals Office (AAO) decision requiring amended or new H-1B petitions for workers who change job sites. These requirements continue to only affect H-1B workers who move to a site outside the “area of intended employment” for which the original petition on their behalf was filed.  “Area of intended employment” is the area within normal commuting distance of the worksite where the H-1B is employed.

Guidance on what employers are required to do depends on the date of the employee’s move, which are drawn from the publication dates of the Simeio case and issuance of USCIS policy memos. All changes described below are for changes in the place of employment that require certification of a new Labor Conditions Application (LCA). These actions can be split into three categories by date:

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Though employers are not required to file an amended or new petition if the employee’s worksite changed on or before April 9, 2015, they may choose to do so to encourage non-interference by USCIS. All changes in place of employment that occurred after April 9, 2015 and require certification of a new LCA MUST file an amended or new petition.