End of Year Legislative and Regulatory Action and Federal Court Update

January 5, 2016

As we wish our clients a Happy New Year, we would like to provide several important “end-of-year” legislative and rule-making updates. Most importantly, on December 31, 2015, the Department of Homeland Security (“DHS”) released long-overdue proposed regulations (“Proposed Rule”) to codify its interpretation of important sections of the American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”), and other laws relating to the employment and retention of high-skilled foreign workers. If passed, the new regulations would provide clarity to the rules governing H-1B extensions and adjustment of status portability, as well as consistency in the adjudication of related petitions and applications. In addition, the new regulations would provide several new benefits designed to attract and retain high skilled foreign workers, including a 60-day grace period following termination of employment for certain foreign temporary workers to enable them to seek new employment, and employment authorization for certain beneficiaries of approved I-140 immigrant petitions, under certain compelling circumstances. Please note that the Proposed Rule will not take effect unless and until the Rule clears the administrative rule-making process. This process typically takes several months. We will provide a detailed summary and analysis of the Proposed Rule in a separate alert later this week.

Additionally, on December 18, 2015, the President signed into law the 2016 Consolidated Appropriations Act (“H.R. 2029”) also referred to as “the FY2016 Omnibus Appropriations Bill.” Along with funding the federal government through September 30, 2016, the bill includes several provisions with immigration-related consequences, including an increase to L-1 and H-1B filing fees for certain employers and increased restrictions under the Visa Waiver Program.

Finally, the Department of Homeland Security (“DHS”) has asked the federal court in Washtech v. DHS to extend the stay of its decision invalidating STEM OPT work authorization extensions. If granted by the court, the stay would allow students to continue to file for such extensions while new a new rule is finalized to address the shortcomings that resulted in the invalidation of the previous rule.

More details regarding the supplemental fee increase, new visa waiver restrictions and Washtech case are provided below.


Supplemental Fee Increases for Employers with High Percentage of Foreign Workers

 

Under the FY2016 Omnibus Appropriations Bill, mandatory supplemental fees for L-1 and H-1B petitions will increase for companies that employ 50 or more employees in the United States and whose U.S. workforce is comprised of more than 50% H-1B and/or L-1 workers. The fees for L-1s increased from $2,250 to $4,500, while the fees for H-1Bs petitions increased from $2,000 to $4,000. These supplemental fees must be paid in addition to the basic filing fee of $325, for initial as well as extension H-1B and L-1 petitions, filed on or after December 18, 2015.

How This Impacts You

The vast majority of employers will not be affected by this new fee increase.  Only employers who employ a majority of workers in H-1B and/or L-1 status will be required to pay the higher supplemental fees.

 

New Restrictions on Visa Waiver Program

 

The Omnibus Appropriations Bill for 2016 also includes the Visa Waiver Program Improvement and Terrorist Prevention Act of 2015, which imposes new important restrictions on the Visa Waiver Program (VWP). This program allows citizens from 38 participating countries to travel to the U.S. for business or tourism for up to 90 days at a time based on reciprocal agreements with the governments of these countries. Eligible citizens are only required to complete an online “ESTA” (Electronic System for Travel Authorization) application prior to traveling to the U.S. As outlined below, the reformed program imposes new restrictions on certain individuals from Visa Waiver countries who are dual nationals and/or who have traveled to specific countries, as well member countries as a whole.

Restrictions on Certain Foreign Nationals

Under the revised program, foreign nationals who have traveled to Iraq, Syria, Iran or Sudan, or other countries or areas “of concern,” at any time on or after March 1, 2011, are ineligible to enter the United States using the VWP. Exceptions exist for individuals who traveled to the afore-mentioned locations while performing military service and government employees carrying out official government duties. DHS may also waive exclusion from the program if doing so would be in the interest of U.S. law enforcement of national security.

Under the revised program, individuals who are nationals of Iraq, Syria, Iran or Sudan are also ineligible to participate in the waiver program. It is important to note that laws governing nationality vary from country to country, and individuals may be considered nationals of a particular country despite not having visited or resided there, or having applied for a passport from that country.

 

Conditions on Member Countries

 

The revised program contains new conditions for participation, including passport security requirements, screening protocols, and information sharing. Countries failing to meet the new requirements may have their membership in the program revoked. Some of these requirements will take effect immediately, whereas others must be implemented within the next year.

How This Impacts You

 

Citizens of participating Visa Waiver countries who have traveled to Iraq, Syria, Iran or Sudan since March 1, 2011, and citizens of participating Visa Waiver countries who hold dual citizenship with Syria, Iraq, Iran, or Sudan, are now required to obtain a visa prior to entering the United States. This new requirement could result in delays and/or the inability of such individuals to attend business meetings and conferences with prospective employers or collaborators in the United States.

Additionally, the revisions to the program may have negative consequences for U.S. citizens if participating countries choose to impose reciprocal visa restrictions on U.S. citizens. As noted in our previous alert, David O’Sullivan, the EU Ambassador to the United States, has criticized the revisions and noted that the EU was already planning a review of the EU’s visa exemption program next year and that Washington's actions could affect the outcome.

It is not yet clear how U.S. Customs and Border Protection and other government agencies will implement and enforce the new laws. We will provide additional details as they become available.
 

DHS Asks Washtech Court to Extend Stay Invalidating STEM OPT Extentions

 

On December 22, 2015, DHS requested that the federal court in Washington Alliance of Technology Workers v. DHS (“Washtech”) postpone the date on which the 2008 Rule authorizing OPT STEM extensions will be invalidated, to allow DHS sufficient time to complete the administrative rulemaking process and reinstate the STEM extension program. As previously reported, on August 12, 2015, the Washtech court invalidated a 2008 Rule that authorized extensions of Optional Practical Training (“OPT”) for certain F-1 students due to procedural deficiencies in the rulemaking process. The court postponed the effective date of its ruling for six months—through February 12, 2016—to give DHS sufficient time to pass a new Rule to remedy the procedural deficiencies of the 2008 Rule.  DHS published a new Proposed Rule on October 19, 2015 for notice and comment. Because DHS received an unprecedented 50,000 comments to the new proposed rule, it has taken longer than expected to review the comments. Consequently, implementation of the new rule is expected to be delayed. 

DHS has therefore requested that the Washtech court further postpone the effective date of its ruling for 90 days—through May 10, 2016. This would allow the previous 2008 STEM rule to remain in effect while DHS completes the rule-making process for the new, proposed rule.

DHS has stated that if it is not successful in obtaining the additional 90 day relief, it will likely pursue additional procedural options that are available to push out the effective date beyond February 12, 2016.

How This Impacts You

The Washtech decision does not impact applications for STEM extensions approved prior to February 12, 2016. We expect that the court will grant DHS’ request so that applications filed on or after February 12, 2016 will similarly not be affected.
 
We will monitor the process closely and provide updates as they become available. 

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