H-1B Cap Reached for FY 2019

USCIS has completed the random selection process for reaching the H-1B cap and the advanced degree exemption (master’s cap) for fiscal year (FY) 2019.

Between April 2nd and April 6th, USCIS received 190,098 H-1B petitions, including those counting towards the advanced degree exemption. USCIS received approximately 9,000 fewer petitions than were received for last year’s H-1B cap. The general statutory cap is 65,000 petitions, and the master’s cap is 20,000. USCIS randomly selected visas in the master’s cap category first, from which unselected petitions became part of the 65,000 cap lottery.

USCIS will continue to process cap-exempt petitions, as well as petitions for current H-1B workers to:

  • Extend stay in the U.S.;
  • Change employers;
  • Work concurrently in another H-1B position;
  • Change terms of employment.

USCIS will return unselected petitions with their filing fees. Current H-1B workers who have been counted towards the cap will not be counted towards the FY 2019 cap. For more frequent updates, please follow us on Twitter (@GrahamAdairLaw).

Temporary Premium Processing Suspension

USCIS will begin accepting H-1B petitions that are subject to the FY 2019 cap on April 2, 2018. FY 2019 cap-subject petitions received by USCIS from April 2 to April 6, 2018 will be considered in the H-1B visa lottery. Today, USCIS announced that it has temporarily suspended premium processing for all FY 2019 cap-subject petitions. During the temporary suspension, USCIS will reject any I-907 Forms requesting premium processing service associated with FY 2019 cap-subject H-1B petitions.

USCIS expects the suspension to last until September 10, 2018. FY 2019 cap-subject petitions that are still pending after September 10, 2018 may be upgraded to premium processing at that time.Premium processing will continue for H-1B petitions that are not subject to the FY 2019 cap. Such H-1B petitions include H-1B extension petitions and H-1B change of employer petitions.

USCIS explains that the temporary suspension will help the agency process long-pending petitions and reduce overall H-1B processing times. For more frequent updates, please visit our website and follow us on twitter (@GrahamAdairLaw).

Preparing for H-1B Cap Season

H-1B cap season is nearly upon us, and it’s in your best interest to get a head start on preparing your petition to ensure a timely submission.

United States Citizenship and Immigration Services (USCIS) begins accepting H-1B applications for FY 2019 on April 2nd, 2018. The H-1B Regular quota is 65,000 visas, and the H-1B Master’s quota is 20,000 visas.

If more than 65,000 petitions are submitted during the first five days of the acceptance period, USCIS uses a lottery system to select applicants. The lottery system is conducted through a random, computer-generated process. The likelihood of the need for a lottery is high – for FY 2017, USCIS received 236,000 H-1B applications within five days of opening application acceptance, and 199,000 applications for FY 2018.

In the case of a lottery, USCIS handles it in two segments. First is the lottery for individuals qualifying for the 20,000 set aside for those with advanced U.S. degrees. Once that lottery is complete, any unselected in the advanced cap are put into the regular lottery of 65,000. USCIS will issue receipt notices on cases selected in the lottery. We expect to start seeing receipt notices toward the end of April, and more steadily through May. Unfortunately, USCIS does not begin issuing rejection notices on cases not selected in the lottery until most receipts have gone out, so there tends to be a period of uncertainty toward the end of May and into June.

USCIS has telegraphed that there will be a higher level of scrutiny on case review than we have seen in years past. We are aware of the areas of emphasis and will plan to prepare cases accordingly to reduce the number of requests for evidence and avoid denials.

For the greatest chance of obtaining an H-1B, the most important step is timely filing. In the weeks and months leading up to the April 2nd acceptance date, be sure to stay on top of all required paperwork. The attorney handling your case can help guide you through the process and keep you informed of everything that is needed before submitting. Setting aside a reasonable amount of time to get required forms completed thoroughly will save you plenty of stress come April 2nd.

Sam Adair Speaks with Voice of America News on Greater Scrutiny of Nonimmigrant Work Visas

Sam Adair was recently quoted in Esha Sarai’s Voice of America article “Greater Scrutiny Set for Nonimmigrant Work Visa Renewals.” In the article, Sam discusses potential effects of the USCIS’s new policy that visa renewal applications must face the same scrutiny as the original applications.

“…I think what we’ll see is just an increase in the number of requests for evidence, an increase in the delays on the adjudication of these petitions, and really it’s going to just result in more costs for the employers who are filing these petitions,” Adair told VOA.

Click here to read the full article.

Sam Adair Talks to Daily Journal on Tightened Nonimmigrant Visa Scrutiny

 

Sam Adair was quoted in the following article, which appeared in the Los Angeles and San Francisco Daily Journal on October 26, 2017.

US government tightens nonimmigrant work visa scrutiny

By Chase DiFeliciantonio

In a policy shift, the federal government announced that applications to extend certain work visas will now be scrutinized in the same way as the initial applications.

U.S. Citizenship and Immigration Services said the change would apply to certain nonimmigrant visas and is needed to combat fraud and protect U.S. workers.

According to Sharon Rummery, a spokesperson for the agency, the change was implemented Monday to comply with an executive order signed in April by President Donald J. Trump.

“The burden of proof is and should rightly be on the petitioner regardless of whether we’ve approved the request in the past,” Rummery said. “Our determination should be based on the merits of each case.”

Some business immigration attorneys decried the move as political and said it will create more work for them and increase expenses for their clients without real benefits.

Mitch Wexler, a Los Angeles- and Irvine-based partner at Fragomen, Del Rey, Bernsen & Lowey LLP, wrote in an email that the change is unnecessary and counterproductive.

“[It’s] ridiculous for the agency to no longer give deference to its previous adjudications,” Wexler wrote. “They get no additional filing fees for RFEs [Requests for Evidence] and will introduce even more uncertainty into the workforce of the biggest U.S. employers.”

The immigration service can ask for more information about an application through a Request for Evidence when it believes and application lacks required documentation or evidence.

According to a news release from the agency, the previous policy deferred to the findings of an already approved application, as long as the key elements were unchanged and there was no evidence of a material error or fraud.

Rummery said the change was needed to verify nothing had changed between an initial application and an application for an extension, adding in an email that the previous policy was outlined in an April 2004 policy memo and added to in a subsequent August 2015 policy memo.

“We think this is going to result in an increase in delays and an increase in expenses for employers who are filing these extension applications for their employees,” said Sam Adair, a business immigration attorney and an Austin, Texas-based partner at Graham Adair Inc.

Adair said L-1 intracompany transfer visas, O-1 extraordinary ability visas, TN visas based on the NAFTA treaty, and H-1B nonimmigrant work visas could be affected by the change.

“This will be especially true in O-1 and L-1 applications when there’s a fair amount of subjective evidence that’s going to be required for those petitions,” Adair said, adding he was less concerned about increased scrutiny of H-1B visas because they require a more objective standard for evidence.

“This is very much in line with previous efforts by the administration on immigration,” Adair added. “It’s going to create additional uncertainty for people who are already here.”

Suspension of Non-Immigrant Visas for U.S. Citizens to Turkey

The United States and Turkey have both suspended all non-immigrant visas effective immediately on October 8, 2017. The indefinite suspension prevents Turks from traveling to the US, and vice versa, on non-immigrant visas, which include tourist, business, student, and official/diplomatic visas. This applies to all sticker visas, electronic visas, and border visas.

The suspensions were prompted by the recent arrest in Istanbul of a U.S. consulate employee, who is a Turkish national. The arrest was made in connection with the employee’s alleged ties to cleric Fethullah Gulen, who has been in exile from Turkey and living in the U.S. since 1999. The Turkish president has blamed Gulen for last year’s military coup attempt in the country, and has pushed for the US to extradite him.

Please reach out to the attorney overseeing your case or Sam Adair for advice on next steps, and follow us on Twitter for real-time updates as they become available.

USCIS Resumes Premium Processing for Some Categories of Applicants Seeking H-1B Visas

U.S. Citizenship and Immigration Services (USCIS) has resumed premium processing of all H-1B visa petitions that fall under the Fiscal Year 2018 cap. Set at 65,000 visas, the 2018 cap was reached in April. Premium processing was also resumed for the 20,000 petitions annually set aside for workers with a master’s degree or higher educational degree from the United States.  If your H-1B petition was filed under the FY2018 cap and has not yet been adjudicated it is now eligible for premium processing.  

Additionally, USCIS had previously resumed premium processing for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program, H-1B cap exempt employers and for interested government agency waivers. Processing for all other H-1B petitions remains temporarily suspended; however, USCIS indicates that premium processing for other H-1B applications will resume in the near future.  

Please reach out to the attorney overseeing your case or Sam Adair for advice on next steps, check our website for further updates, and follow us on Twitter for real-time updates as they become available.

Trump Rescinding DACA

It was announced on September 5, 2017 that the executive order on the Deferred Action on Childhood Arrivals (DACA) would be rescinded by the Trump Administration on March 5, 2018. This summary is provided to employers who may have employees currently working on Employment Authorization Documents (EADs) that were issued pursuant to DACA. This summary only addresses issues relating to employees who currently hold work authorization pursuant to DACA and not to any new potential applicants for DACA.

First, the rescission of DACA will go into effect on March 5, 2018. The USCIS will continue to accept DACA EAD extension requests until October 5, 2017. Any currently valid EAD cards will continue to be valid through their current expiration dates. Any applications that are filed and received by October 5, 2017 for extensions of previously approved DACA EADs should be granted for an additional two years. These applications for extensions can be filed 180 days prior to the expiration date on the current document.

We recommend that no one who has been granted DACA travel outside of the U.S. even if they are in possession of a valid Advanced Parole document that was previously issued. All pending Advanced Parole travel document applications will be administratively closed and refunded. The administration seems to be signaling that travel is not advisable and since we cannot control the risk here, we are advising against any international travel.

We recommend that you attempt to identify any employees currently working pursuant to DACA, and that they be informed that they can speak to one of the attorneys at Graham Adair about their status in order to determine what steps, if any, can be taken to protect their status going forward. This should happen as soon as possible to ensure that all eligible extensions are filed by October 5, 2017.

While this does give Congress some time to act and to legislatively protect the work authorization and status of these individuals, it is not a significant amount of time and therefore any employees currently working pursuant to DACA may be forced off of payroll when their EAD cards expire. We recommend that companies confirm that their I-9 re-verification processes are active and in place to catch any potential issues with expiring work authorization cards.

New In-Person Interview Mandate for Green Card Applicants

The USCIS announced that certain applicants for green cards will now be required to partake in an in-person interview. This new mandate will apply to anyone moving from an employment-based visa to permanent residency. Visa holders who are family members of refugees or people who receive asylum will also be subject to an in-person interview when they apply for provisional status, which must be met before a green card is distributed. This change is expected to significantly slow down the process of obtaining a green card. 

Further details about this new mandate have yet to be announced, but Graham Adair is closely monitoring any new developments, and we will release information as it becomes available. Please reach out to the attorney overseeing your case or Sam Adair for advice on next steps, and follow us on Twitter for real-time updates as they become available.

DHS Final Rule on Changes to Employment-Based Immigration

The U.S. Dept. of Homeland Security has released a final rule amending its regulations related to certain employment-based immigrant and nonimmigrant visa programs.  The final rule is effective January 17, 2017.  The final rule clarifies and improves many policies and practices.  It seeks to provide greater flexibility for high-skilled workers who are beneficiaries of approved employment-based immigrant visa petitions (i.e. EB-1, EB-2, EB-3) to seek promotions, accept lateral positions, or change employers.  It also increases certainty for U.S. employers seeking to sponsor and retain immigrant and nonimmigrant workers.

Some important policy clarifications and improvements include:

  • H-1B extensions of stay under AC21. A qualifying labor certification or Form I-140 petition is not required to be filed 365 days before the 6-year limitation is reached in order for the individual to be eligible for an exemption under section 106(a) of AC-21; instead, the labor certification or Form I-140 would need to be filed at least 365 days before the day the exemption would take effect.
  • Per country and worldwide limits. If the Visa Bulletin that was in effect on the date the H-1B  petition is filed shows that the individual was subject to a per country or worldwide visa limitation, DHS may grant 3-year extension (beyond the 6-year limitation), even if the immigrant visa is available when the petition is adjudicated.  In contrast, current regulations only allow an H-1B nonimmigrant to extend status in 3-year increments (beyond the 6-year limitation) if the immigrant visa unavailability exists at the time the petition is adjudicated under section 104(c) of AC21.
  • I140 Revocation. An approved I-140 petition will remain valid if a request to withdraw is received or the petitioner terminates its business 180 days or more after either the date of the petition’s approval or the date of filing of an Adjustment of Status (I-485) application.
  • Automatic EAD Extensions. If the renewal is timely filed, EADs will be automatically extended. Currently, only F-1 students applying for an EAD renewal based on STEM extension benefit from automatic EAD gap-fill work authorization for timely filed extensions.  However, this gap-fill provision will now be extended to other classes of EAD benefits.
  • 10-day nonimmigrant grace period. Nonimmigrants have 10 days at the end of an authorized validity period, to depart the U.S. or take other actions to extend, change, or otherwise maintain lawful status.
  • 60-day nonimmigrant grace period. High-skilled workers in the E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1, or TN classifications, have a 60-day grace period (including those whose employment ceases prior to the end of the petition validity period) to more readily pursue new employment should they be eligible for other employer-sponsored nonimmigrant classifications or employment in the same classification with a new employer.
  • Employment Authorization for Spouses and Children of I-140 Principals. Where a person’s priority date under EB-1, EB-2, or EB-3 is not current due to per country immigrant visa limits, spouses and qualifying children may apply for work authorization, so long as they can provide “compelling circumstances.”

As mentioned, these changes are not yet in effect.  We will provide additional guidance as more information on the implementation become available.

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