New Executive Order Further Restricts U.S. Immigration

Today, President Trump issued an executive order further restricting immigration in light of the current Covid-19 pandemic.  This order extends the previous restrictions on new immigrant visas through the end of the year and adds certain nonimmigrant visa classifications to the list.

 

The new executive order will restrict new H-1B, H-2B, J, or L visas, and any dependents accompanying or following to join individuals in those classifications, which includes H-4 and L-2 spouses.  The order goes into immediate effect.

 

Individuals who hold valid H-1B, H-2B, J, or L visas as of today will be allowed to enter the U.S. This order will not impact our ability to file changes of status, extensions of status, change of employer petitions, adjustments of status, or amendments for those who are currently in the U.S.  Largely, this ban on new visas continues the status quo as U.S. consulates around the world continue to be closed and are not currently issuing new visas.

 

This will have an impact on those who are currently outside the U.S. and waiting for the consulates to reopen so that they can apply for visas, and those individuals will likely have to wait until next year to apply for their visas.  There are some limited exceptions to this rule for those who work in national security, health care or medical research directly related to Covid-19, or those who work in the food supply chain.

 

The order contains additional instructions to the secretaries of Homeland Security and Labor to investigate regulatory options to ensure that H-1B petitions and employment-based green card applications do not negatively impact U.S. workers.  We do not have any indication at this point as to what this would look like or when we can expect to see proposed regulations.

 

For further information please contact your Graham Adair attorney.

USCIS to Lift Premium Processing Suspension in Phases in June 2020

On May 29, 2020, USCIS announced that the temporary suspension on premium processing requests for eligible Form I-140 employment-based immigrant petitions—such as EB-1, EB-2, and EB-3 petitions, and eligible Form I-129 nonimmigrant worker petitions—such as H-1B, O-1, TN, L-1, and E-3 petitions, will be lifted in phases during June 2020.

 

Back on March 20, 2020, USCIS had temporarily suspended new premium processing requests for eligible Form I-140 and Form I-129 petitions. As a result of the suspension, Form I-140 and Form I-129 petitions (normally eligible for premium processing) could only be filed with regular processing from the date of suspension. Regular processing entails a much lengthier processing time of several months, as opposed to the 15-day processing time that premium processing provides.

 

Based on the May 29, 2020 announcement, USCIS will resume accepting premium processing requests (Form I-907, Request for Premium Processing Service) for eligible petitions in the following phases in June 2020:

 

Phase 1 (June 1, 2020): Resumption of Premium Processing for Eligible Form I-140 Petitions

 

  • USCIS will accept premium processing requests for eligible Form I-140 petitions on/after this date.

 

Phase 2 (June 8, 2020): Resumption of Premium Processing for Certain Pending I-129 Petitions

 

  • USCIS will accept premium processing requests for pending cap-exempt Form I-129 H-1B petitions filed prior to June 8, 2020.

 

  • USCIS will accept premium processing requests for all other eligible, Form I-129 non-H-1B petitions (such as O-1, TN, L-1, E-1, and E-2) filed prior to June 8, 2020.

 

Phase 3 (June 15, 2020): Resumption of Premium Processing for Certain New/Recent Cap-Exempt H-1B Petitions

 

  • USCIS will accept premium processing requests for certain, cap-exempt H-1B petitions not filed prior to June 8, 2020, which includes premium processing requests for cap-exempt H-1B petitions due to cap-exempt employer; beneficiary is cap-exempt due to qualifying cap-exempt institution, entity or organization; or the beneficiary is cap-exempt under INA section 214(l) based on a Conrad/IGA waiver.

 

Phase 4 (June 22, 2020): Resumption of Premium Processing for Cap-subject H-1B Petitions and All Other Form I-129 Petitions

 

  • USCIS will accept premium processing requests for H-1B cap-subject petitions (includes cap-subject H-1B petitions that were selected in the registration lottery in March 2020).

 

  • USCIS will accept premium processing requests for all other Form I-129 petitions that are eligible for premium processing.

 

For any pending or new Form I-140 or Form I-129 petition, the above filing date restrictions must be considered for any premium processing request as USCIS will reject a premium processing request that is not timely made within the above constraints.

 

Graham Adair will continue to monitor the situation and provide updates here as they become available. If you have any questions, please contact your Graham Adair representative.

USCIS to Resume Services at Local Offices on June 4th

USCIS plans to reopen certain offices and resume non-emergency services on Thursday, June 4, 2020. The agency temporarily closed offices and suspended in-person services on March 18th to slow the spread of COVID-19.

 

New safety measures will be implemented once offices reopen, including requiring visitors to wear facial coverings when entering buildings, providing hand sanitizer at entry points, and limiting early visitor arrival to no more than 15 minutes before a scheduled appointment. The agency asks that applicants not attend scheduled interviews if they are ill, but rather reschedule appointments per the instructions on the appointment notice. Applicants will not be penalized for rescheduling an appointment due to illness.

 

USCIS specified the following plans:

 

USCIS will send notices to applicants with previously scheduled appointments and interviews, and will automatically reschedule necessary Application Support Center appointments that were canceled by issuing a new appointment letter in the mail. This includes biometrics appointments and interviews for Adjustment of Status.

 

The agency will reschedule postponed naturalization ceremonies. Naturalization ceremonies will be shortened to limit exposure and visitors permitted to attend ceremonies will be limited.

 

Asylum interviews that were canceled due to temporary office closure will be rescheduled and will be video-facilitated to maintain social distancing.

 

If you have any questions about the status of your canceled interview or appointment, please contact your Graham Adair representative.

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).

 

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