USCIS Extends and Expands Suspension of H-1B Premium Processing

Earlier this week, U.S. Citizenship and Immigration Services (USCIS) announced that it will extend the suspension of Premium Processing for all pending FY 2019 H-1B cap cases until Feb. 19, 2019. This suspension, which was put into effect in April, was originally expected to last only until Sept. 10, 2018. In addition, USCIS announced that effective Sept. 11, 2018, it would expand the suspension of Premium Processing to cover all H-1B change of employer and H-1B amendment filings. This suspension is also expected to last until at least Feb. 19, 2019.

The continued suspension of FY2019 H-1B cap case Premium Processing will impact recent graduates in F-1 status working pursuant to the H-1B cap-gap authorization period. Employment authorization for qualified cap-gap beneficiaries expires on Oct. 1, even if the beneficiary’s H-1B cap case remains pending after that date. While they will lose their cap-gap employment authorization, these individuals will be permitted to remain in the United States until their H-1B petitions are adjudicated. We will work with you to identify those employees in cap-gap status who may be affected by this suspension.

USCIS will continue to accept Premium Processing requests for H-1B change of employer petitions and H-1B amendments through Sept. 10, 2018. If you intend to sponsor an H-1B nonimmigrant for one of these case types and wish to use Premium Processing, please let us know right away so we can make every effort to have the case filed with USCIS by Sept. 10. Additionally, remember that an employee already in H-1B status can begin working for you as soon as your H-1B change of employer petition is received by USCIS under the rules of H-1B portability. You do not need to wait for an approval before having the H-1B employee begin work.

USCIS will continue to accept Premium Processing requests for extensions of H-1B status with the same employer (with no change in the terms and conditions of employment), and for H-1B petitions filed by a qualifying cap-exempt employer during the suspension period. Premium Processing will also remain available for other Premium Processing-eligible nonimmigrant petitions, including L-1, O-1 and TN petitions, and for eligible I-140 petitions.

USCIS Again Allows STEM OPT Holders to Train at Third-Party Sites

In an abrupt change in policy, USCIS now advises that employers may again utilize the services of STEM OPT individuals who are employed by a contractor or consulting firm and who are temporarily sent to a company to perform services.

As you are likely aware, in May 2016 the Department of Homeland Security (DHS) finalized a rule permitting recent graduates with degrees in science, technology, engineering and mathematics (STEM) fields to apply for an additional 24 months of Optional Practical Training (OPT) beyond the initial 12-month OPT period. In order to qualify for the 24-month OPT extension, the student must be employed by an employer enrolled in E-Verify, and the employer must have a bona fide “employer-employee” relationship with the student. Furthermore, the employer and employee must execute a Training Plan (Form I-983) that clearly articulates the STEM OPT student’s learning objectives and affirms the employer’s commitment to helping the student achieve those objectives.

In its response to public comments on the 2016 STEM OPT rule, DHS cast doubt on whether consulting firm arrangements (in which a STEM OPT student is sent to a third-party site to perform services) could satisfy the STEM OPT rules, as consulting companies may not be able to provide its STEM OPT student employees with the required in-person training at their clients’ third-party locations. Several months ago in a post on its website, USCIS has advised that such arrangements are prohibited, stating that the training experience may not take place at the place of business or worksite of the employer’s clients or customers because Immigration and Customs Enforcement (ICE) would lack authority to visit such third-party sites in order to determine if such training is taking place. (ICE has not commented on whether it agrees with that assertion.) However, USCIS has again shifted its stance on this issue, confirming that STEM OPT participants may engage in training that takes place at a site other than the employer’s place of business as long as all of the training obligations are met. USCIS has advised that it will review on a case-by-case basis whether the student will be a bona fide employee of the employer signing the Training Plan, and will verify that the employer that signs the Training Plan is the same entity that employs the student and provides the training experience.

In light of this change, employers are now clearly permitted to utilize the services of STEM OPT employees of contractors or consulting companies. However, please keep in mind that the contractor is responsible for providing the STEM worker with the required training throughout the duration of the consultant’s assignment at your worksite.

Uncertain Future of TN Classification

Earlier this week, the United States and Mexico announced a “preliminary Trade Agreement” that will purportedly modernize and replace the North American Free Trade Agreement (NAFTA). Canada (the third NAFTA member state) will also join discussions on a replacement for NAFTA in the coming weeks.

There has been no indication of how a revised trade agreement among Mexico, United States and Canada will affect the TN category. Created under NAFTA and by the U.S.-Canada Free Trade Agreement that preceded NAFTA, the TN nonimmigrant classification permits qualified Canadian and Mexican citizens to work temporarily into the United States in certain designated professional occupations. Details of any immigration category for professionals under the revised trade agreement are not yet known.

As for current TNs, it is likely that USCIS will allow individuals currently in valid TN status to continue working for the remainder of their course of authorized stay, but will not process any extensions or new TN applications. If this occurs, we will work with you to explore all other available visa options for your TN employees. It is also possible (although unlikely, without congressional approval) that with the rescission of NAFTA, the now-superseded U.S.–Canada Free Trade Agreement, which created a class of professional Canadian nonimmigrants, will automatically come back into effect, allowing Canadian citizens to work in the United States in designated professional occupations.