USCIS Announces H-1B Cap Season Start, Premium Processing Changes for FY 2020

United States Citizenship and Immigration Services (USCIS) has announced that Fiscal Year (FY) 2020 H-1B cap-subject petitions will begin being accepted on April 1, 2019. The agency has also announced several changes to the petition process:

Premium Processing

FY 2020 premium processing for cap-subject H-1B petitions will take place in two phases: (1) petitions requesting change of status and (2) all other petitions, such as those filed with consular processing. Petitioners will be able to concurrently file their request for premium processing with their H-1B petition. USCIS will begin processing these concurrent filings by May 20, 2019 at the latest. USCIS anticipates that it will begin processing all other cap-subject H-1B petitions in June 2019.

Employer Data Hub

USCIS will launch the H-1B Employer Data Hub on uscis.gov on April 1, 2019. In an effort to to provide additional transparency into the H-1B program, the public will be able to search for information including which companies sponsored H-1B employees and how many, as well as approval and denial rates.

Cap Selection

Earlier this year, the Department of Homeland Security (DHS) announced changes to the H-1B cap selection process with reference to petitions eligible for the advanced degree exemption. More information on these changes can be found here.

For further guidance or case-specific questions, please contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

USCIS Resumes Premium Processing for All H-1B Petitions

USCIS has announced that it will resume premium processing this Tuesday, March 12, 2019 for all H-1B petitions. This is the final step of a 3-stage reinstatement of premium processing for H-1B petitions. After the nearly 6-month suspension, which started last August, USCIS first began accepting premium processing on cap-subject H-1B petitions filed last year. Then last month it reinstated premium processing for any H-1B petition filed prior to December 21, 2018.

USCIS’s policy on premium processing suspensions began a year ago in April when it announced that cap-subject H-1B petitions could not be filed with premium processing. It then extended and expanded the suspension in August 2018 to include all H-1B petitions.

It remains to be seen if USCIS will be able to honor premium processing requests on the cap-subject H-1B petitions that will be filed starting April 1. Considering the many backlogged H-1Bs that will certainly interfile premium processing requests, we expect that USCIS will receive thousands of requests in the coming days. Coupled with that is the recent announcement that H-4 EADs will likely be going away soon and the new biometrics requirements for dependent spouses, so many of those corresponding H-1B extensions will likely be filed with premium processing as well.
USCIS’s rate hike on premium processing requests, from $1225 to $1410, is now in effect, so any new requests should be accompanied by the higher fee.
For further guidance or case-specific questions, please contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

USCIS Announces It Will Resume Premium Processing For H-1B Petitions Filed On Or Before Dec. 21, 2018

USCIS has announced that it will resume premium processing this Tuesday, Feb. 19, 2019 for all H-1B petitions filed on or before Dec. 21, 2018. If you requested premium processing service and received a transfer notice for a pending H-1B petition, then you must submit a premium processing request to the service center now handling the petition. If your petition was transferred and you send your premium processing request to the wrong center, USCIS will forward it to the petition’s current location. However, the premium processing clock will not start until the premium processing request has been received at the correct center.

Remember to include a copy of the transfer notice with your premium processing request to avoid delays. If you received a request for evidence (RFE) for a pending petition, you should also include the RFE response with the premium processing request.

USCIS has been slowly reinstating premium processing for H-1Bs, which started on Jan. 28, when USCIS resumed premium processing for FY 2019 cap-subject petitions, including those eligible for the advanced degree exemption. However, the temporary suspension of premium processing remains in effect for applicable H-1B petitions filed on or after Dec. 22, 2018.

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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USCIS to Publish Revised Form I-539 and New Form I-539A

The USCIS recently announced that it has revised its Form I-539, Application to Extend/Change Nonimmigrant Status. The new form will be available on the USCIS website on March 11, 2019. After that date, the USCIS will only accept the revised version of Form I-539.

Form I-539 is used for dependents of an H-1B visa applicant, who is changing visa status, or for dependents extending their current H-4 status.

Starting March 11, 2019, USCIS will ONLY accept the revised Form I-539 with an edition date of February 04, 2019. USCIS will reject a Form I-539 dated December 23, 2016 or earlier, and it appears that there is no grace period.

On March 11, 2019, it will also publish a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status. Form I-539A replaces the Supplement A provided in previous versions of Form I-539. Form I-539A can only be submitted with Form I-539; it cannot be filed as a standalone.

According to the USCIS website, the revised Form I-539 will include the following significant changes:

  • Every co-applicant included on the primary applicant’s Form I-539 must submit and sign a separate Form I-539A, which will be available on the USCIS’s Form I-539 webpage on March 11, 2019. Parents or guardians may sign on behalf of children under 14 or any co-applicant not mentally competent to sign.
  • Every applicant and co-applicant must pay an $85 biometric services fee, except certain A, G, and NATO nonimmigrants as noted in the new Form I-539 Instructions to be published on March 11, 2019.
  • Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number. The biometric services appointments will be scheduled at the Application Support Center (ASC) closest to the primary applicant’s address. Co-applicants who wish to be scheduled at a different ASC location should file a separate Form I-539.
USCIS will reject any Form I-539 that is missing any of the required signatures or biometrics fees, including those required for Form I-539A.
If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

New USCIS H-1B Cap Regulation Will Go Into Effect April 1, 2019

Today, United States Citizenship and Immigration Services (USCIS) published the final rule announcing a change in how the agency will handle the selection process for H-1B applications that are filed under the cap starting April 1, 2019. USCIS also announced that the implementation of the electronic pre-registration process will be delayed until further notice, and will not go into effect this year.

What is changing this year?
Beginning this year, USCIS will first conduct the general lottery drawing for all cases eligible for the 65,000 available H-1B visas. Once that lottery has been completed, USCIS will conduct the selection process for H-1B petitions eligible for the U.S. advanced degree lottery.  According to data from USCIS, this could lead to an increase of up to 16% in the selection of cases for individuals with a master’s degree or higher from a U.S. university.

What is not changing this year? 
There will be no electronic preregistration process for H-1B petitions this year. The process will likely be implemented in the future, but not until testing and vetting has taken place.

If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Premium Processing Resumes for FY 2019 H-1B Cap Petitions

On Monday, January 28, United States Citizenship and Immigration Services (USCIS) will resume premium processing for all fiscal year (FY) 2019 H-1B cap petitions. This includes petitions eligible for advanced degree exemption. If a petitioner receives a request for evidence (RFE), they should include their response to the RFE with their request for premium processing. Premium processing for all other types of H-1B petition is still temporarily suspended, and USCIS will announce when the suspension is lifted.

What is premium processing?
Premium processing guarantees a processing time of 15 days for H-1B petitions. If certain action has not been taken within that 15 day window, the petitioner’s premium processing fee is refunded and the petition continues on an expedited processing track.

If you have any questions, please feel free to contact your Graham Adair representative. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Chad Graham Quoted in San Francisco Chronicle on Proposed H-1B Visa Changes

Chad Graham was recently quoted in Melia Russell’s San Francisco Chronicle article “H-1B visa shift may favor tech companies.” In the article, Chad discusses the steps employers should take to comply with the upcoming changes to the H-1B program. He also comments on USCIS’ relatively short notice and public comment period, saying it likely “means they want to push it for this year.”

To read the full article, click here.

DHS Proposes Rule Affecting H-1B Selection Process

Today, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking that affects all H-1B visa petitioners subject to the cap.

Electronic Registration
The proposed rule would require H-1B visa petitioners to electronically register with U.S. Citizenship and Immigration Services (USCIS) during a registration period. It is important to note that this rule provides significant leeway for USCIS to not implement this registration requirement for H-1B cap cases filed in April 2019. Considering the mandatory notice and comment period, followed by system testing, there likely will not be much advance notice. Companies should plan accordingly and be prepared for either scenario. USCIS anticipates that this change would help reduce the wait time for notifying applicants of cap selection.

Reversal of Selection Order for Advanced Degree Holders
The proposed rule also reverses the order by which H-1B petitions counted towards the cap are selected. Currently, when the H-1B cap and advanced degree exemption are both reached within the first five days of the filing period, petitions towards the advanced degree exemption are selected first. Under the proposed rule, all registrations or petitions would be counted towards the H-1B cap first. Once the cap is reached, USCIS would select registrations or petitions towards the advanced degree exemption. According to USCIS, the proposed change would lead to an estimated increase of up to 16 percent, or about 5,340 workers, in successful H-1B petitioners with a master’s degree or higher from a U.S. institution.

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

F-1 Students Waiting on H-1B Petitions No Longer Authorized to Work

As of October 1, 2018, F-1 students who received a “cap-gap” extension and still have pending H-1B petitions no longer have work authorization. The “cap-gap” extension, which is intended to help bridge the gap between F-1 and H-1B status, expired on September 30, 2018.

F-1 students can still remain in the U.S. while they await status changes in their H-1B petitions without accruing unlawful presence, however they cannot be employed. F-1 students with work authorizations that extend past the September 30 deadline, such as an appropriately dated I-765, may continue to work per their authorization guidelines.

For further information on how this may affect your business, please consult with our attorneys. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Sam Adair Quoted in Quartz on H-1B Visa Spouses

Sam Adair was recently quoted in Ananya Bhattacharya’s Quartz article “In three months, H-1B spouses end up jobless — again.” In the article, Sam discusses the various hurdles that immigrants will face due to upcoming immigration reform, such as increased wait time for visas.
“For an H-4 spouse looking at a 10-year wait to get a green card, that is an incredibly long time to be forced to sit out of the job market,” said Sam.
To read the full article, click here.
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