275,000 H-1B Cap Cases Registered

On April 1, 2020, U.S. Citizenship and Immigration Services (USCIS) announced that it had received approximately 275,000 submissions for H-1B applications in the electronic lottery that was conducted at the end of March.  They reported that 46% of applications were for individuals who hold advanced U.S. degrees. This was an increase of approximately 74,000 cases over the number that was received last year in the H-1B cap.

 

In total numbers, this means that beneficiaries had less than a 31% chance of selection. Cases filed under the advanced U.S. degree cap had a higher chance, although we don’t know the total number of these applicants so we cannot say for sure what the likelihood of success was. We estimate that the chances of selection for cases filed under the advanced U.S. degree cap was somewhere between 40% and 50%.

 

It seems that the lower cost threshold of $10 per registration lowered the barrier to entry enough to result in a surge of submissions.

 

Registrations that have not been selected will be held in reserve. Between March 31, 2020 and Oct. 1, 2020, in the event that USCIS needs to select registrations from the reserve to meet the H-1B regular cap and the advanced U.S. degree cap, it may select from registrations held in the reserve to meet such allocations.

 

Graham Adair will be checking unselected cases regularly until USCIS sends out rejection notices. If you have any questions, please contact your Graham Adair representative.

USCIS To Accept Reproduced Signatures During COVID-19 National Emergency

For petitions filed on March 21, 2020 and beyond, USCIS will begin accepting reproduced original signatures on forms and documents, including Form I-129. A document may be scanned, faxed, photocopied, or similarly reproduced provided that the copy is of an original document containing an original handwritten signature. USCIS will not accept signatures created by a typewriter, word processor, stamp, auto-pen, or similar device. The signatory must have authority to sign on behalf of the petitioning entity.

 

Petitioners or applicants who submit an electronically reproduced original signature must keep copies of the original documents containing the “wet” signature. At their discretion, USCIS may request the original documents at any time. Failure to produce the original document can negatively impact the application.

 

If you have any questions, please contact your Graham Adair representative.

USCIS Suspends Premium Processing Due to COVID-19

Effective March 20, 2020, USCIS cited staffing concerns due to COVID-19 in announcing it will temporarily suspend premium processing for all Form I-129 and I-140 petitions until further notice. The suspension applies to the following categories:

 

  • I-129: E-1, E-2, H-1B, H-2B, H-3, L-1A, L-1B, LZ, O-1, O-2, P-1, P-1S, P-2, P-2S, P-3, P-3S, Q-1, R-1, TN-1 and TN-2.

 

  • I-140: EB-1, EB-2 and EB-3.

 

Premium processing will remain suspended for all FY 2021 H-1B cap petitions.

 

USCIS will process any previously accepted premium processing (Form I-907) requests, but will not be able to send notices using pre-paid envelopes. Petitioners who have filed Form I-129 or Form I-140 via premium processing but have not received any agency action within the 15-calendar-day period will receive a refund.

 

Premium processing requests that were mailed before March 20, 2020, but accepted after this date, will be rejected. USCIS will send an announcement once premium processing is available.

 

If you have any questions, please contact your Graham Adair representative.

USCIS Closes All Field Offices

Today, USCIS announced the closing of all field offices. As of yesterday, only field offices in the Bay Area were impacted. However, USCIS has expanded closures to include all field offices. It should be noted that USCIS regional centers currently remain open and will continue processing petitions for the time being.

 

The closure of field offices impacts Naturalization ceremonies, Adjustment of Status interviews, pushing back approvals of Lawful Permanent Residence and the issuance of corresponding green cards. Biometrics appointments are also affected, which will delay the issuance of EAD cards and Advance Parole documents for those applying for Adjustment of Status, and will push back approvals for H-4 spouses.

 

When normal operations resume, USCIS will affirmatively reschedule biometrics appointments. A new appointment letter will be sent by mail. Individuals who had InfoPass or other appointments must reschedule

 

As for the H-1B Cap, as long as Regional Centers remain open, USCIS should accept filings starting April 1st, although as we reported yesterday, USCIS has suspended premium processing on H-1B Cap filings.

 

This is a very fluid situation, so we will continue providing updates as they become available.

 

To receive the latest updates on this issue, please follow us on Twitter (@GrahamAdairLaw).

USCIS Suspends Premium Processing for H-1B Cap Petitions

U.S. Citizenship and Immigration Services (USCIS) has temporarily suspended Premium Processing for fiscal year (FY) 2021 cap-subject H-1B petitions beginning April 1, 2020. The suspension is aimed at reducing processing times for all H-1B petitions.
Similar to last year, USCIS will resume Premium Processing for H-1B cap petitions in two phases:
  • First phase: No later than May 27, 2020, cap-subject petitions including those eligible for the advanced degree exemption, requesting a change of status from F-1 status, will be eligible to upgrade to Premium Processing.
  • Second phase: No earlier than June 29, 2020, Premium Processing will resume for all other cap-subject petitions. USCIS will announce the exact date for resuming Premium Processing at a later time.
Premium Processing remains available to cap-exempt H-1B petitions such as extension of stay requests.
For questions on whether Premium Processing is available to your specific case, please contact your Graham Adair attorney. To receive the latest updates on this issue, please follow us on Twitter (@GrahamAdairLaw).

Public Charge Rule – Updated USCIS Forms

New application forms have been released in conjunction with looming Public Charge Regulation implementation. USCIS will have broader authority to examine whether foreign nationals will become a public charge of the United States. Specifically, the form has added sections that ask whether the beneficiary has received, since obtaining the non-immigrant status, certain benefits such as cash assistance for income maintenance, Temporary Assistance for Needy Families (TANF), and Section 8 Housing Assistance under the Housing Choice Voucher Program. If a beneficiary has received or is currently certified to receive any of the public benefits, specific information regarding each public benefit must be provided.

 

As reported previously, this regulation will cause increased information and documentation requirements, as well as more close examination of personal circumstances of beneficiaries. However, non-immigrants who are seeking an extension or a change of status will not be fully impacted by the rule. They will be required to satisfy a new public charge condition to be deemed eligible the associated immigration benefit they are seeking.

 

For adjustment of status applicants, the new regulation will cause cases to be reviewed under a “totality of the circumstances” test which will take into consideration each applicant’s factors such as age, household size, income, and education. Additionally, adjustment of status (green card) applicants will be required to submit a copy of their credit history and credit score, as well as detailed information about their health coverage. If an applicant has certain health issues, this can deem the applicant unable to care for himself, which can be a disqualifying factor for the applicant. Unfortunately, there is currently not a bright line test in regards to what specifically would disqualify someone. We will need to wait and see how USCIS adjudicates such matters as they come through. A new I-485 form will we be used by USCIS starting February 24.

 

The regulation will create new eligibility conditions for those seeking an extension or a change of status from within the United States. Such applicants will be required to disclose if they have ever received or are currently certified to receive certain public benefits on or after February 24, 2020. The foreign beneficiary must have received benefits for more than 12 months within a 36-month period to be negatively affected by the regulation.

 

Starting February 24th, non-immigrant changes or extensions of status will need to be filed on updated editions of Form 1-129, which will also include the public charge questions. These will encompass the non-immigrant worker statuses, including, H-1B, L-1, and O-1 status.

 

For questions about whether you might be impacted by the new rule, please contact the Graham Adair attorney overseeing your case, or contact us at info@grahamadair.com.

USCIS Implements New H-1B Registration Requirement

U.S. Citizenship and Immigration Services (USCIS) announced on Friday that it had completed a pilot program to test its new H-1B registration system. We previously reported, that USCIS has been pushing to implement this new process for the upcoming H-1B lottery season. Because of the new technology and potential for issues, USCIS had decided to not implement the registration requirement for the H-1B cap that was run earlier this year. However, USCIS determined that the testing phase was sufficiently successful for implementation in the upcoming FY2021 H-1B cap.

 

Therefore, companies seeking to file H-1B petitions in this year’s H-1B lottery must first pay the required fee and provide basic company information, as well as information about each beneficiary to be included in the electronic lottery.

 

The registration process will go from March 1 through March 20. The lottery selection process will then be run on those electronic registrations. Only those with selected registrations will be eligible to file H-1B cap-subject petitions. USCIS plans to continue running a separate lottery for those with advanced U.S. degrees as part of this registration system.

 

There are still many uncertainties with how this system will work, including the impact it will have on those individuals who need “cap-gap” coverage to continue working. Graham Adair will be reviewing the potential H-1B cases for our clients and providing specific advice on H-1B cap strategy for this coming fiscal year.

 

In the coming days, USCIS will post additional instructions along with key dates. We will continue to provide updates as they become available. If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

 

Amended Public Charge Rule Will Not Go Into Effect on October 15th

Earlier this afternoon, a federal judge in New York issued an injunction against the recently amended “public charge” rule. We discussed the amended public charge rule a few weeks ago. People deemed to be a public charge may be prevented from applying for permanent residency. The amended rule altered the definition of “public charge” to include an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period. Additionally, it was broadened to include many common services, such as public housing assistance, food stamps, supplemental income, and certain Medicaid costs.

The temporary injunction issued today will prevent the amended public charge rule from taking effect on Oct. 15.

The rule is being challenged in several federal courts by immigrants’ rights groups and more than a dozen state attorneys general. While the public charge requirement has been a long-standing rule, it has not previously been defined this specifically.

As the rule continues working its way through the court system, we will continue to monitor it and provide updates. But for now, people filing for permanent residency will not be subjected to the newly amended public charge rule.

For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Plan to Terminate H-4 Work Permit Program Delayed, DHS Seeks to Put Lawsuit on Hold

A memo from the U.S. Department of Justice, dated 9/16/19, has indicated that anticipated changes to the visa program which has allowed H-4 visa holder spouses of H-1B workers to obtain Employment Authorization Documents (EADs) will not be issued until the spring of 2020 at the earliest. The plan to eliminate the work authorization for H1-B spouses was formally introduced in February of 2019, with a proposed rule from USCIS and the Department of Homeland Security (DHS) “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization.” The new regulations, currently under federal review, were initially expected to be published this year.

The U.S. Court of Appeals for the District of Columbia is currently hearing a lawsuit seeking to invalidate the H-4 EAD rule. The suit was filed by anti-immigration group Save Jobs USA, arguing that the DHS had no authority to issue the initial H-4 EAD rule, which was introduced in 2015. DHS lawyers maintain that the suit should be put on hold due to the ongoing efforts by the administration to rescind the program. According to the memo …DHS’s intention to proceed with publication of the H-4 EAD proposed rule remains unchanged. At this point, DHS has informed counsel that it believes the earliest possible publication date for that rule would be in spring 2020. Although that timeframe is aspirational, DHS believes that the September 27, 2019 oral argument should be removed from the calendar and postponed…”

We will continue to monitor developments and share updates as more information becomes available. If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

 

USCIS Proposes New Rule on H-1B Registration Fee Requirement

On Wednesday September 4, 2019, USCIS published a proposed rule in the Federal Register that would require payment of a $10 fee from all petitioners filing a H-1B cap-subject petition. The rule would apply to each registration submitted for the selection process, and is expected to be applicable to 2021 fiscal year cap filings. The 30-day public comment period is now open, with comments due 10/4/19 via mail or the Federal eRulemaking Portal: www.regulations.gov.

The new fee, which was excluded from the original January 2019 final rule that introduced the new online registration requirement, is expected to result in a marginal increase in costs for selected selected petitioners, and a cost savings for both unselected petitioners and the government. This is one in a series of steps toward implementing the new electronic registration system for H-1B filing. Details remain to be released about the new process, which will be in place for the April 2020 H-1B filing season.

We will continue to monitor developments and share updates as more information becomes available. If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

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