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 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 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).

 

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).

USCIS and DHS Publish Final Rule on Public Charge Grounds for Inadmissibility

On Wednesday August 14, USCIS and DHS published in the Federal Register the new final rule amending the regulations by which DHS determines admissibility on “public charge” grounds. Specifically, this is a change in the rule and a clarification of the definitions of what constitute a “public charge” and “public charge benefits.” The rule will go into effect at 12:00 a.m. Eastern Time on October 15, 2019, and cases filed prior to this date will be adjudicated based on the previous guidelines. The new rule will not affect currently pending cases. If any foreign nationals have received assistance from one of the programs designated below, they should advise our office at the initiation of any nonimmigrant or immigrant process so we can evaluate if the receipt will pose a problem.

The rule defines the term “public charge” to mean an individual who receives one or more designated public benefits for more than 12 months, in the aggregate, within any 36-month period (such that, for instance, receipt of two benefits in one month counts as two months).

The agency considers the following programs as grounds for inadmissibility:

  • Supplemental security income (SSI)
  • Temporary Assistance to Needy Families (TANF)
  • State general relief or general assistance
  • Medicaid programs covering institutionalization for long term care
  • Nonemergency Medicaid
  • Supplemental nutrition and assistance program (SNAP, formerly food stamps)
  • Section 8 Housing Choice Voucher Program
  • Section 8 Project-Based rental assistance
  • Public Housing

The rule will also affect those in nonimmigrant status if they have received any of the aforementioned public benefits above the designated threshold (12 months within any 36-month period). If they do receive such benefits, they will no longer be eligible for an extension or change of state.

The final rule does not include receipt or potential receipt of the following benefit programs as grounds for inadmissibility:

  • Emergency medical assistance
  • Disaster relief
  • National school lunch or school breakfast programs
  • Foster care and adoption
  • Head Start
  • Child Health Insurance Program including Medicaid for Aliens under 21
  • Earned Income Tax Credit or Child Tax Credit
  • Public benefits received by individuals who are serving in active duty or in the Ready Reserve component of the U.S. armed forces, and their spouses and children
  • Public benefits received by certain international adoptees and children acquiring U.S. citizenship
  • Medicaid for pregnant women
  • Medicaid for school-based services (including services provided under the Individuals with Disabilities Education Act)

Benefits received by the applicant’s U.S. citizen children or other family members are not considered in determining whether the applicant is likely to become a public charge. The final rule also clarifies that DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person.

USCIS will exercise its discretionary authority, in limited circumstances, to offer an otherwise inadmissible foreign national the opportunity to post a public charge bond. The final rule sets the minimum bond amount at $8,100; the actual bond amount will be dependent on the individual’s circumstances.

If a foreign national has received any of the public benefits listed above, we urge them to contact our office so that we can advise on the potential impact and the best possible course of action.

USCIS has Updated Policy Manual in Regard to Services Provided to Public

The United States Citizenship and Immigration Services (USCIS) has updated its policy manual regarding services to the public, including general administration of certain immigration benefits, online tools and providing up-to-date information.

Notable updates include revisions to “case specific information,”  “expedited treatment” and “service request procedures.” The American Immigration Lawyers Association (AILA) has issued a 13-page response to the USCIS policy manual update.

In matters involving “case specific information,” the AILA takes issue with some field offices requiring mobile devices to be shut off. These mobile devices often allow access to case specific information. See excerpt from the AILA regarding this matter below.

“USCIS might consider a general policy requiring that all electronic devices be switched to “silent” or “vibrate” when inside a facility and further establish criteria for permissible use of such devices during interviews and appointments, such as accessing case specific information, conducting case related research, and responding to an urgent or emergency situation.” Sec. h paragraph 3.

USCIS currently has vague guidelines regarding “expedited treatment” matters. Section g. of AILA’s response would like USCIS to provide more specifics on scenarios where expedite requests will be granted. Not only would this provide clarity to applicants, but it would also cut down on requests, which in turn would save USCIS a lot of manpower in sifting through inordinate amounts of non-qualifying expedite requests.

In regard to matters involving “service request procedures,” the AILA document provides requests to improve and expedite services provided by USCIS.

Graham Adair will continue to provide updates if and when additional changes are made.