Final Rule on High-Skilled Non-Immigrant Workers

U.S. Department of Homeland Security Issues Final Rule on Immigrant Visa Petition Retention and Program Improvements Affecting High-Skilled Nonimmigrant Workers

On November 18, 2016, DHS published a long anticipated final rule, “Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers.” The rule goes into effect on January 17, 2017, and codifies existing policies and practices. It is intended to benefit U.S. employers and foreign workers by streamlining processes relating to the employment-based immigrant visa process and increasing job portability and flexibility for foreign workers.

Among its provisions, the final rule clarifies and improves the following policies and practices:

Clarifying Rules for Obtaining Post 6th Year H-1B Extension

 The final rule provides much needed clarity regarding the circumstances under which individuals are eligible for post-6th year H-1B extensions. The final rule confirms that foreign national applying for an AC21 extension need not be in H-1B status to be eligible as long as they previously held H-1B status and have additional H-1B time remaining to be used.

The regulation also consolidates guidance regarding when one may be eligible for an extension of H1B status beyond the standard 6-year max based on a pending labor certification or I-140 petition filed at least 365 days prior to the start date requested in the petition. The final rule further clarifies that one may be eligible for this benefit, even if the LC or I-140 was not filed at least 365 days before the foreign national exhausted the full 6-years of H1B time available.

 Recapture of Time Outside of the U.S. for H-1B Nonimmigrant Worker

The final rule clarifies that there is no time limit on recapturing time the H-1B nonimmigrant worker spends outside the U.S. The time may be recaptured at any time before the workers uses the full period of authorized H-1B admission.

Other H1B-Related Provisions

The new regulation includes a number of other provisions applicable to H1B classification. The regulation codifies longstanding DHS policies regarding “portability” and “bridge petitions.” In order to qualify for portability, the new H1B petition must have been filed while the worker either is in H1B status or has a timely filed H1B extension petition. Employment authorization continues until the pending H1B petition is adjudicated, as long as each petition in the “bridge” separately meets the requirements for H1B classification and extension of stay.

The new provision provides H1B workers with whistleblower protection in cases of employer retaliation based on reporting a violation of the employer’s obligations under the labor condition application (LCA). The DHS may consider a loss of status in these cases caused by the worker’s termination to be an “extraordinary circumstance,” and therefore grant an extension or change of status. 

I-140 Revocation and Priority Date Retention

Beneficiaries of approved I-140 petitions who change employers are permitted to retain their earlier priority date.  However, prior to the enactment of this final rule, there was some uncertainty as to whether this priority date retention applied in cases where the beneficiary’s prior employer withdrew or the government revoked the prior I-140 petition.

The final rule provides more certainty to I-140 beneficiaries and their prospective employers by clarifying that beneficiaries may retain the priority date from their initial I-140 petition as long as that petition was not withdrawn/revoked for fraud, willful misrepresentation of a material fact, or material error, or because of the invalidation or revocation of the underlying labor certification.  The new provision provides more certainty to beneficiaries of approved I-140 petitions that they will be able to change employers, move positions within their company, and pursue different employment opportunities without losing their priority date

I-140 Remains Valid Following Withdrawal or Business Termination – 180 Day Rule

The final rule also provides that where an I-140 petition has been approved for 180 days or more, USCIS will not revoke the I-140 petition based solely on the petitioner’s withdrawal of the petition of termination of the petitioner’s business.

Note this provision will not be applied retroactively and the 180 day rule will apply only prospectively from January 17th onward, the date the new rule becomes effective.

Eligibility for 1-year of Employment Authorization for E-3, H-1B, H-1B1, O-1, or L-1 Nonimmigrants Facing Green Card Backlogs When They Can Demonstrate “Compelling Circumstances”

The final rule permits for individuals facing immigrant visa backlogs in the above listed nonimmigrant visa categories to apply for separate employment authorization for a limited period of up to one year. To be eligible, the foreign national must 1.) be in one of the above listed visa categories, 2.) the principal beneficiary of an approved I-140, 3.) establish that an immigrant visa is not available on the date the application is filed, and 4.) demonstrate “compelling circumstances” (such as serious illness or disability to the worker or dependent family member, employer retaliation, substantial harm to applicant, or significant disruption to the employer) that justify the issuance of separate work authorization.

Expanding Availability of Two 10-Day Grace Periods for Certain Nonimmigrant Workers

The new rule expanded eligibility for a 10-day grace period before and after the petition validity period to the E-1, E-2, E-3, L-1, and TN nonimmigrant visa classifications. The grace periods will permit visa holders in the above classifications to enter or remain in the U.S. in lawful nonimmigrant status during these periods.  These grace periods were already available to foreign nationals classified as H-1B, O and P.

Establishing 60-Day Grace Period for Nonimmigrant Workers Following Loss of Employment

The final rule also provides for a 60-day consecutive grace period at the end of a nonimmigrant’s lawful stay in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 or TN status, even if their employment ends prior to the end of the petition or visa validity period. This grace period will provide nonimmigrants in these visa classifications a reasonable amount of time to find and accept new employment within the U.S. where their prior employment is terminated or to make plans to depart the U.S.   During the 60-day grace period, nonimmigrants would not be authorized to work, but could potentially apply for a chance of employer or change of status.

EAD Adjudication

The final rule eliminates the requirement that USCIS must adjudicate EAD Applications within 90 days.  However, to avoid potential gaps in employment authorization, DHS will allow individuals to file renewal requests 180 days prior to the expiration of their current EAD (rather than the previous 120 days).  The final rule also includes an automatic 180-day EAD extension for timely filed renewal applications for those in certain categories, such as asylees and those in temporary protected status (TPS). However, this provision does not extend to all classes of nonimmigrants who are eligible for EADs, including those in L-2, H-4 and E.

New Supplement J to Form I-485

The final rule introduces a “Form I-485 Supplement J” which applicants will use to demonstrate certain threshold evidence regarding their eligibility to change employers when their Adjustment of Status Application has been filed and pending for more than 180 days. The supplement is intended to standardize the collection of the necessary information USCIS requires to confirm that the job offer from the I-140 petition is still available at the time of the adjustment of status filing or to adjudicate whether a worker’s portability request for a new position is in the same or similar occupational classification as their prior position(s).

If you would like to further discuss how these new rules might affect your current immigration status, call our office at 408-389-8930 to schedule a consultation today! 

Immigrants Make Valuable Contributions to U.S. Economy


economicsNew Report: The Economic and Fiscal Consequences of Immigration


President-Elect Trump’s controversial immigration proposals have without a doubt caused many to question the future of immigration policy and the effect it will have on our nation’s immigrant community.   Among those who work closely with immigrants, such as in our immigration law practice, we know that immigration has great power and helps to propel our economy.  That’s why we believe it was very timely that the National Academies of Sciences, Engineering, and Medicine (NAS) published its recent 2016 report, and we share here some of its findings on our blog, as it confirms the positive effects of immigration.

Specifically, the report provides a comprehensive assessment of the impact of immigration on economic and fiscal outcomes for the U.S.  Through extensive data, the report confirms that immigrants make valuable contributions to economic growth, innovation, and entrepreneurship in the U.S. and are essentially integral to the nation’s economic growth. At the end of this post, there is a link to the full report (the site will request an email in exchange for a free PDF download of the full report).   We have below summarized some of the major findings of the report.

Impact on Employment, Wages, and the Economy

Effects on wages. When measured over a period of 10 years or more, the impact of immigration on the wages of native workers overall is very small. To the extent that negative wage effects are found, prior immigrants – who are often the closest substitutes for new immigrants – are most likely to experience them, followed by native-born high-school dropouts, who share job qualifications similar to the large share of low-skilled workers among immigrants to the United States.

Role of immigrants in consumer demand. The contributions of immigrants to the labor force reduce the prices of some goods and services, which benefits consumers in a range of sectors including child care, food preparation, house cleaning and repair, and construction. Moreover, new arrivals and their descendants are a source of demand in key sectors such as housing, which benefits residential real estate markets.

Effects on employment levels. There is little evidence that immigration significantly affects the overall employment levels of native-born workers. Any negative effects were small and were experienced primarily by other recent immigrants and those who did not graduate high school.

Impacts on economic growth. Immigration is integral to the nation’s economic growth. The inflow of labor supply has helped the United States avoid the problems facing other economies that have stagnated as a result of unfavorable demographics, particularly the effects of an aging workforce and reduced consumption by older residents. In addition, the infusion of human capital by high-skilled immigrants has boosted the nation’s capacity for innovation, entrepreneurship, and technological change. Research suggests, for example, that immigrants raise patenting per capita, which ultimately contributes to productivity growth. The prospects for long-run economic growth in the United States would be considerably dimmed without the contributions of high-skilled immigrants.

Impact on Federal, State, and Local Budgets

All population subgroups contribute to government finances by paying taxes and add to expenditures by consuming public services—but the levels differ. On average, individuals in the first generation group of immigrants are more costly to governments, mainly at the state and local levels, than are the native-born generations; however, immigrants’ children—the second generation—are among the strongest economic and fiscal contributors in the U.S. population overall, contributing more in taxes than either their parents or the rest of the native born population.

This outcome is primarily driven by two factors: first, the lower average education level of the first generation translated into lower incomes and, in turn, lower tax payments; second, higher per capita costs (notably those for public education) were generated at the state and local levels because the first generation had, on average, more dependent children than other adults in the population. Today’s immigrants have more education than earlier immigrants, and as a result, are more positive contributors to government finances. If today’s immigrants had the same lower educational distribution as immigrants two decades ago, their fiscal impact, would be much less positive. Thus, the total net fiscal impact of immigrants across all levels of government has become more positive over time.

For more information, a copy of the full report can be downloaded at (note that the site will request an email in exchange for a free PDF download of the full report):

Foreign Students in U.S. Schools

uni_students-large_transqvzuuqpflyliwib6ntmjwfsvwez_ven7c6bhu2jjnt8According to Time Magazine, the number of international students in U.S. colleges and universities topped 1 million for the first time, in the 2015-2016 academic year. The data came from the Institute of International Education.  Here is a breakdown of the nationalities in U.S. schools:  1. China (328,547); 3. Saudi Arabia (61, 287); 5.  Canada (26, 973); 8. Brazil (19,370); 11.  Iran (12, 269); 15.  Germany (10,145)

Click here to learn more about how to become an international student in the U.S.

Related topic on international students with STEM degrees, click here.


stockimageThe Department of Homeland Security has published a new rule, effective December 23, 2016, raising filing fees for applications/petitions filed with the United States Citizenship and Immigration Service (“USCIS”). The last time USCIS updated the fee schedule was on November 23, 2010. The current USCIS fee schedule and the new fees, are displayed in the below-table.

The new fee schedule will affect many of the type of work we do here at the Law Office of Alison Yew, including but not limited to:

  • N-400 Application for Naturalization
  • I-130 Petition for Alien Relative
  • I-485 Application to Adjust Status
  • I-812D/I-765 DACA filing
  • I-129 Petition for Non-Immigrant Worker
  • I-140 Alien Petition for Immigrant Worker
  • I-765 Application for Employment Authorization
  • I-131 Application for Travel Document (including reentry permit and advance parole)
  • I-129F Fiance(e) visa application
  • I-526 Immigrant Petition by Alien Entrepreneur (“EB-5”)

If you have any questions about your current case with us, and how the new fee schedule impacts the cost of your case, please feel free to CONTACT US.



Form No. Title Current fee Final fee
G-1041 Genealogy Index Search Request $20 $65
G-1041A Genealogy Records Request (Copy from Microfilm) 20 65
G-1041A Genealogy Records Request (Copy from Textual Record) 35 65
I-90 Application to Replace Permanent Resident Card 365 455
I-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document 330 445
I129/129CW Petition for a Nonimmigrant Worker 325 460
I-129F Petition for Alien Fiancé(e) 340 535
I-130 Petition for Alien Relative 420 535
I-131 /I131A Application for Travel Document 360 575
I-140 Immigrant Petition for Alien Worker 580 700
I-191 Application for Advance Permission to Return to Unrelinquished Domicile 585 930
I-192 Application for Advance Permission to Enter as Nonimmigrant 585 585/930
I-193 Application for Waiver of Passport and/or Visa 585 585
I-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal 585 930
I-290B Notice of Appeal or Motion 630 675
I-360 Petition for Amerasian Widow(er) or Special Immigrant 405 435
I-485 Application to Register Permanent Residence or Adjust Status 985 1,140
I-485 Application to Register Permanent Residence or Adjust Status (certain applicants under the age of 14 years) 635 750
I-526 Immigrant Petition by Alien Entrepreneur 1,500 3,675
I-539 Application to Extend/Change Nonimmigrant Status 290 370
I-600/600A Petition to Classify Orphan as an Immediate Relative/Application for Advance Petition Processing of Orphan Petition 720 775
I-800/800A Petition to Classify Convention Adoptee as an Immediate Relative/Application for Determination of Suitability to Adopt a Child from a Convention Country 720 775
I-601 Application for Waiver of Ground of Excludability 585 930
I-601A Application for Provisional Unlawful Presence Waiver 585 630
I-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended) 585 930
I-687 Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act 1,130 1,130
I-690 Application for Waiver of Grounds of Inadmissibility 200 715
I-694 Notice of Appeal of Decision 755 890
I-698 Application to Adjust Status From Temporary to Permanent Resident (Under Section 245A of the INA) 1,020 1,670
I-751 Petition to Remove Conditions on Residence 505 595
I-765 Application for Employment Authorization 380 410
I-800A Supp. 3 Request for Action on Approved Form I-800A 360 385
I-817 Application for Family Unity Benefits 435 600
I-824 Application for Action on an Approved Application or Petition 405 465
I-829 Petition by Entrepreneur to Remove Conditions 3,750 3,750
I-910 Application for Civil Surgeon Designation 615 785
I-924 Application for Regional Center Designation Under the Immigrant Investor Program 6,230 17,795
I-924A Annual Certification of Regional Center 0 3,035
I-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant 215 230
N-300 Application to File Declaration of Intention 250 270
N-336 Request for Hearing on a Decision in Naturalization Proceedings 650 700
N-400 Application for Naturalization 595 640
N-470 Application to Preserve Residence for Naturalization Purposes 330 355
N-565 Application for Replacement Naturalization/Citizenship Document 345 555
N-600/N-600K Application for Certification of Citizenship/Application for Citizenship and Issuance of Certificate under Section 322 600/550 1,170
USCIS Immigrant Fee 165 220
Biometric Services Fee 85 85



How the United States Immigration System Works

This is not my own post, but it was well researched and written by American Immigration Council.  The article sums up the essence of our immigration system here in the United States.  Since there has been much debate about immigration, in advance of the election, I believe the article provides good information that sets the stage for any intelligent discussion on the issue.

Great News for F-1 Students with STEM degrees!

Article by Robin Trangsrud

OPT Extensions can be 24 months instead of 17 months

If you are a student in F-1 status pursuing a degree in science, technology, engineering, or math (STEM), things just got better for you. What’s the great news? Generally, students in F-1 status are allowed a 12-month work permit after they graduate from their academic program, known as Optional Practical Training (OPT), for when the student graduates. Now, students in F-1 status with STEM degrees are eligible for special treatment; they were previously allowed to extend their OPT work permit for 17 months. Now, students in F-1 status with STEM degrees are allowed to extend their OPT work permit for 24 months rather than 17 months.

Translation: STEM OPT students are eligible to stay in the United States for longer. Great news!

On May 10, 2016, The Department of Homeland Security’s (DHS) new rule on OPT extensions was finalized. According to the new rule, Improving and Expanding Training Opportunities for F–1 Nonimmigrant Students With STEM Degrees and Cap-Gap Relief for All Eligible F–1 Students, the following are the changes to the STEM OPT process and requirements:

  • The STEM OPT extension period increases from 17 to 24 months
  • The definition of STEM degrees, as well as the categories and fields of study that qualify as a STEM degree, are more clearly defined
  • Employers of STEM OPT students are required to implement a more formal mentoring and training program
  • F-1 students with a non-STEM degree but who previously obtained STEM degrees are eligible to qualify for a STEM extension
  • There are safeguards for U.S. workers in related fields
  • There is clarification and requirements for school accreditation, employer site visits, employer reporting, and compliance
  • There is a revision on the limitation of the number of days a STEM OPT student may remain unemployed
  • There is clarification on the “Cap-Gap” extension for F-1 students with a timely filed H-1B petition. With a timely filed H-1B petition, your F-1 status extends until the beginning of the new fiscal year, October 1, of the year your H-1B petition was filed.

If you’re an F-1 student – or you are an F-1 student who submitted an H-1B petition this year – contact the San Jose immigration attorneys at the Law Office of Alison Yew to learn how you could benefit from this new rule.

Guest Blogger Robin Trangsrud is an Immigration Attorney at a non-profit organization in Santa Clara, California serving low-income victims of crimes with their immigration matters. Previously working internationally and in Boston, Robin has experience in employment-based immigration law, family-based immigration law, and in refugee law. Currently, she is the Chair of the Younger Lawyers Division of the Federal Bar Association’s Immigration Law Section.

USCIS Completes the H-1B Cap Random Selection Process for FY 2017

USCIS has completed the H-1B Cap random selection process for FY 2017.

USCIS received over 236,000 H-1B petitions during the filing period, which began April 1, including petitions filed for the advanced degree exemption. On April 9, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees, unless the petition is found to be a duplicate filing.

Click here for USCIS’s official announcement.

P-1A Visa: For Professional Athletes… and Gamers?

P-1A visas for professional athletes now extend to professional gamers, too!
The arrival of spring means we are entering one of the most anticipated times in the sports season. We have the March Madness, NBA playoffs, and the start of the MLB season. This time of year has the immigration attorneys at the Law Office of Alison Yew thinking about U.S. sports visas for professional athletes, which are known as P-1A visas.

The P-1A classification is a type of non-immigrant/ temporary work visa for professional athletes to come to the U.S. to perform or compete at a specific athletic event. The athletes, performing individually or as part of a group or team, must be internationally recognized as having obtained a high level of achievement in their chosen sport.

But did you know that the P-1A visa isn’t just for athletes in sports that we traditionally think of, like basketball, soccer, or football? The definition of “professional athlete” has now been extended to cover professional video gamers!

In the last few years, these U.S. sports visas have been issued to professional video gamers who are coming to the country to participate in major gaming tournaments. Back in 2013, USCIS issued the first P-1A visa to a Canadian League of Legends player, Danny “Shiphtur” Le, to come join a North American team competing in the League of Legends World Championship (LCS). Le was one of the world’s top players of League of Legends, and the first eSports player to be granted the P-1A visa. By issuing the visa, the LCS was officially recognized as a professional sports league, just like the NBA, NFL, NHL, etc. This was later followed by the issuance of a U.S. sports visa to the first professional StarCraft II player, a player from South Korea.

The growth of e-sport gaming has definitely been increasing steadily, with certain U.S. gaming tournaments filling venues as large as the Staples Center in Los Angeles, where tens of thousands of spectators come to watch the championship in person. With all of these changes in technology and culture, it is no surprise that immigration law has been changing and expanding as well!

The demand for temporary work visas like the P-1A continues to grow, and the entire process remains as complex as ever. The San Jose immigration attorneys at the Law Office of Alison Yew have the expertise to help! Learn more about P-1A visas and the specific criteria to qualify for one. You can also contact us for a case evaluation if you think you or someone you know might quality.

Why Should I Become a U.S. Citizen?

U.S. Citizenship Lawyer in San Jose
Article by Tiffany Keng. Tiffany is an associate attorney at the Law Office of Alison Yew.

As a U.S.-born U.S. citizen, I often take for granted my rights. It wasn’t until I became an immigration attorney in San Jose that I truly realized all the different advantages I enjoy, just by nature of my citizenship, as compared to my many clients.

There are actually numerous benefits to becoming a U.S. citizen. Naturally, the most widely discussed and known ones probably immediately come to mind, such as the right to vote or protection from deportation. But these certainly are not the only benefits of U.S. citizenship obtained through the naturalization process. In fact, there are numerous other benefits that are often overlooked or less emphasized. Have you considered these other advantages to becoming a U.S. citizen?

  • Ability to petition more family members. A U.S. citizen may sponsor a wider variety of family members than green card holders, including parents, siblings, and married adult children. In the case of petitioning for a spouse, spouses of U.S. citizens have no visa quotas, while spouses of green card holders do, which results in shorter wait time for the U.S. citizen’s relative.
  • It becomes easier to travel abroad. When you become a U.S. citizen, you can obtain a U.S. passport and travel freely around the world without having to worry about re-entry or the risk of losing your ability to return to the U.S. Permanent residents, on the other hand, can only leave the U.S. for 180 days before facing restrictions and complications of the risk of “abandoning” your green card.
  • Traveling with a U.S. passport. As a U.S. citizen, you are able to obtain and travel with a U.S. passport. This in turn allows you to get assistance from the U.S. government when overseas and to seek help and protection from the U.S. embassy or consulate abroad.
  • Ability of your green-card holding children to become U.S. citizens. When you become a U.S. citizen, your unmarried children under 18 automatically become U.S. citizens, as long as they are lawful permanent residents, and residing in the U.S. in the legal and physical custody of the naturalizing parent.
  • Obtaining citizenship for children born abroad. In most cases, a child born abroad to a U.S. citizen is automatically a U.S citizen.
  • You have more job opportunities. Many local, state, and federal government jobs require U.S. citizenship. A U.S. citizen, for instance, can serve as an officer in the U.S. military, while a non-U.S. citizen cannot.
  • Access to more public benefits and retention of retirement income. U.S. citizens who retire abroad will receive all of their Social Security benefits. Depending on the circumstances, some Permanent Residents who live and retire abroad may not be able to collect their Social Security retirement payments that they earned paying into the system.
  • Financial benefits. U.S. citizens tend to have more scholarship and financial aid options for college, as many academic scholarships and government grants are only for U.S. citizens and not available for permanent residents.
  • Tax and estate benefits. U.S. citizens and permanent residents are not always treated the same for tax and estate purposes. As a U.S. citizen, there are certain estate tax complications you can avoid.
  • Ability to vote. Not only can you vote for the president every four years, you can also vote in local, state and other federal elections to help shape your local laws and elect your local officials. This can have a direct impact on the community that you’re living in!
  • Ability to run for public office. As a naturalized U.S. citizen, you are eligible to run for most elected public offices except for a few (e.g. U.S. president).
  • Right to not be deported. Anyone who is not a U.S. citizen faces the possibility of deportation if they have committed certain crimes. However, a U.S. citizen cannot be deported.

Each year, the United States welcomes, on average, approximately 680,000 citizens during naturalization ceremonies across the U.S. Will you be one of them this year?

Contact our U.S. citizenship lawyers in San Jose today to discuss your eligibility to become a naturalized U.S. citizen.

It’s Election Year — Apply now to become a U.S. citizen in time to vote!

I was recently asked why some lawful permanent residents do not apply for their U.S. citizenship (through a process called naturalization).

The presidential election is November 2016.  Primaries in California are in June 2016.

Will you be voting this year for a new U.S. president?

If you have been putting off becoming a U.S. citizen, though you have been living in the U.S. with a green card for a while, what is stopping you? Here are some of the reasons I’ve learned from my clients over the years:

  • Some, such as Japanese nationals, must affirmatively give up citizenship of their motherland, if they take up citizenship any where else.
  • Some think they won’t pass the American history test at the interview, and/or the English proficiency test.
  • Some have issues with lengthy trips outside the U.S. and want to wait until he/she can show 5 years of continuous presence in the US.
  • Some have a criminal history, and they fear this record will affect their good moral character, a requirement to become a naturalized citizen.
  • Some are close to age 55 or 60, and they may be able to take the exam in their language (must also meet length of LPR).

There are benefits to becoming a U.S. citizen, one of which is the right to vote.  Other benefits include living anywhere in the world, for any length of time, and not lose your right to return and live in the US, and the right to not be deported.

Resources on becoming a naturalized citizen can be found on the website, including these:

And, we have discussed citizenship and naturalization in a prior blog post.

Are you ready to become a naturalized U.S. citizen?  The Law Office of Alison Yew is here to help.  Contact our office today to discuss your eligibility.