Jackson Lewis Employers’ Immigration Update
H-1B Cap Filing Opens April 1, 2015
Employers must be ready to file their completed H-1B visa petitions on April 1, 2015. The Immigration and Nationality Act (INA) allocates 65,000 new H-1B visas each fiscal year (running October 1 – September 30) and another 20,000 H-1Bs are reserved for individuals who received a master’s degree or higher from a U.S. educational institution. Because a petition cannot be filed more than six months prior to the employee’s start date, the earliest possible date to file for a new H-1B is April 1. This year we anticipate roughly three times the number of applications will be filed as there are visas available.
Spouses of Certain H-1B Workers May Apply for Work Authorization
The Department of Homeland Security (DHS) has announced that certain H-4 dependent spouses of H-1B workers will be able to apply for employment authorization starting May 26, 2015. The U.S. Citizenship and Immigration Services (USCIS) is expected to release details on the filing process.
This new work authorization does not apply to all H-4 spouses. An H-4 spouse will be eligible to apply if his or her H-1B spouse:
Is the beneficiary of an approved I-140 Immigrant Visa Petition; or
Has been granted an extension of H-1B status beyond the six-year limit based on the American Competitiveness in the Twenty-first Century Act of 2000. These are individuals granted an extension of H-1B status based upon PERM Labor Certification application or an I-140 immigrant petition taking more than 365 days.
Florida Court Again Strikes Down DOL H-2B Regulations
A Florida federal district court has ruled once again that the Department of Labor lacks authority under the Immigration and Nationality Act (INA) to issue regulations in the H-2B program, vacating the DOL’s 2008 H-2B regulations establishing standards and procedures for certifying employers’ requests to import H-2B workers and calculating the prevailing wage rates for temporary foreign workers. Perez v. Perez, No. 3:14-cv-682 (N.D. Fla. Mar. 4, 2015).
DOL therefore announced that, effective immediately, it will no longer accept or process requests for prevailing wage determinations or applications for labor certification in the H-2B program while it considers its options in light of the court’s decision.
USCIS Issues New Policy Memorandum on Adjudication of H-1B Petitions for Nursing Occupations
USCIS has issued a new policy memorandum for guidance on the adjudication of H-1B Petitions for nurses. The new policy supersedes any prior guidance on the subject and is intended to help officers in determining whether or not a nursing position meets the definition of a specialty occupation.