Wenger, Karine

SHRM San Diego Law Day –2016
Immigration Update
Recruiting and Retaining Talent –
Tackling Visa Challenges
Karine Wenger
Partner
Fragomen – San Diego
Leveraging Immigration as
a Tool for Talent Attraction
and Retention
[email protected]
+ 1 858 793 1600
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Agenda
•
H1B CAP
•
•
•
Historical review & what to expect for FY
2017
What is the Company’s policy on when
to file – How many bites at the apple?
Alternatives to H1B
•
Green Card Options
•
Immigration Trends and Legislative Update
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H1B CAP
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H1B CAP Overview
Annual Quota
Up to 6,800 reserved
for Singapore and
Chile nationals (H-1B1)
20,000
65,000
Standard cap
Advanced degree cap
 New H-1B petitions are
limited on a fiscal year (FY)
basis; subject to a cap of
85,000
 65,000 allotted to
bachelor’s degree
applicants (standard cap)
 20,000 allotted to U.S.
master’s degree
applicants (advanced
degree cap)
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H1B CAP Historically
*Cap enacted in 1990 but first applied in 1992
~Cap exemption of 20,000 for U.S. advanced-degree holders first became available in May 2005
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When Was the Cap Reached?
• FY 2005 – FY 2016 (65,000 / 20,000)
Number of days
the cap was
open
291
days
17-Jan-06
201
days
1 day
264
days
2-Apr-07
13-Apr-09
7-Apr-15
5-Apr-13
21-Oct-11
H-1B Cap Level
7-Apr-14
26-Jul-06
7-Apr-08
24-Dec-10
116
days
5 business
days
265 days
7-Jun-12
67
days
5 business days
131
days
1-Oct-04
2-May-06
55
days
*FY
2005
264
days
1 day
7-Apr-08
5 business
days
7-Apr-14
235
days
26-Jan-11
300
days
7-Apr-15
5-Apr-13
23-Nov-11
21-Dec-09
2-Apr-07
10-Aug-05
11-Jun-12
71
days
FY 2006 FY 2007 FY 2008 FY 2009 FY 2010 FY 2011 FY 2012 FY 2013 FY 2014 FY 2015 FY 2016
*FY 2005: The advanced-degree cap was not met. 12,563 numbers used as of close of FY 2005.
Note that the advanced-degree cap was introduced on May 5, 2005.
Advanced-degree Cap
Standard H-1B Cap
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The Odds FY 2015 and FY 2016
FY 2015
• 172,500 cap cases received
during single filing period
(April 1 – April 7, 2014)
• Of these, 40,300* were
advanced degree cap cases
• 48,000 more petitions than
FY 2014
Chances?
• 42% chance of being chosen
for processing in the
standard lottery
• Down 20.5% from FY 2014
• 50% chance of being chosen
for processing in the
advanced degree lottery
FY 2016
Chances?
• 233,000 cap cases received
during single filing period
(April 1 – April 7, 2015)
• Of these, ~50,000 were
advanced degree cap cases
• 60,500 more petitions than
FY 2015
• 30% chance of being
chosen for processing in the
standard lottery
• Down 12% from FY 2015
• 40% chance of being
chosen for processing in the
advanced degree lottery
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How to best prepare for FY2017?
 Start early:
identify new hires
Rollover interns on F1
Identify L1 EEs with
FNIV issue
 Consider 2+ bites at
the apple
Alternative Options?
O1 Eligibility
TN for Canadians/
Mexican nationals
H1B1 Chile/Singapore
E3 Australian
Dependent H4 / L2 may
be eligible for EAD
L1 – is working from
abroad an option for 1
year?
BILOH
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How to best prepare for FY2017?
Consider the Green Card Option without
H1B CAP
 Assess risks of non dual-intent
 Timing is key
 International travel may be limited
 EB1 – OR/ Extraordinary Ability –stricter standard
 NIW – No Premium Processing
Foreign Worker Talent without a H CAP
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Immigration Update – Trends &
Legislative Proposals
H-4 Spousal Employment
• Final rule permitting employment authorization for certain H-4
spouses of H-1B workers in the green card process effective
May 26, 2015
• Final regulation published in Federal Register on February
25, 2015
• An H-4 is eligible for employment authorization if his/her spouse:
• Has an approved Form I-140 immigrant worker petition; or
• Has received a one-year extension of H-1B status beyond
the sixth year under the American Competitiveness in the
Twenty-First Century Act (AC-21), based on a filed I-140 or
labor certification. H-4 children are not eligible for work
authorization
• Spouses who are in another nonimmigrant status can apply for a
change of status to H-4 if work authorization is desired
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Immigration Update – Trends &
Legislative Proposals
Bifurcated Visa Bulletin with two cut-off dates
 Application Final Action Date – date for issuance of immigrant
visa, subject to government processing times
 Date for Filing Visa Application - cut-off for eligibility to submit an
application for adjustment or immigrant visa subject to USCIS
announcement of acceptance or DOS notification
 Benefit: work authorization available to greater pool of workers in
the Green Card queue
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Immigration Update – Trends &
Legislative Proposals
Proposed STEM regulations - Next Steps and
Planning for F-1 Students and Employers
• Impact of Washington Alliance of Technology Workers v. DHS
(WashTech)
• Broaden STEM degree pool eligible for STEM EAD
• Extend validity period from 17 mos to 24 mos
• Comprehensive compliance structure (ICE visits, EE reporting to
DSO)
• Longer unemployment period allowed 120 to 150 days
• Comprehensive training plan may be required
• Attestation to pay wage paid to similarly positioned US workers
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Immigration Update – Trends &
Legislative Proposals
AOS Portability
• 12/31/2015 USCIS Proposed Regulations
 Retain & develop highly skilled workers
 Reduce burden of lengthy immigrant visa backlogs on employmentbased Green Card applicants
 Remove restrictions on job mobility
• AOS pending for more than 180 days
 Submit supplement to I485
 “Same or similar occupational classification”
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Immigration Update – Trends &
Legislative Proposals
Beneficiaries of Approved I140s
• EAD eligibility for certain I140 beneficiaries
 Beneficiary maintains valid E3, H1B, L1 or O1
 IV not immediately available, and
 Compelling circumstances exist to justify EAD
• I140 approved for >180 days would not be automatically revoked
 EE could obtain H1B post 6 year extensions
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Immigration Update – Trends &
Legislative Proposals
H1B – Change in Work Location
• On or after August 19, 2015, the petitioner must file an
amended or new petition before an H-1B employee starts
working at a new place of employment not covered by an
existing, approved H-1B petition. Matter of Simeio
Solutions, LLC,26 I&N Dec. 542 (AAO 2015)
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Immigration Update – Trends &
Legislative Proposals
Other Proposed regulations
• H1B licensure requirements – Can file with proof that beneficiary
filed for license (may be approved only for one year)
• 60-day grace period after employment termination
 1 time per authorized validity period
 Not eligible to work during grace period but eligible to file COE
petition
• 10-day grace period before/ after petition validity extended to E,
L1 and TN
• Automatic 180-day extension of EAD validity for certain
categories
 Not applicable to H4, L2 or E spouses
 Amend I9 list of acceptable documents
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How to best prepare for FY2017?
Final Thoughts & Tips:
 Understand business needs
 Involve all stakeholders – recruiters; managers; HR
 Evaluate short term and long term solution
 Assess risks and set clear expectation
n Worker Talent without a H CAP
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Questions?
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