October Visa Bulletin Surge Coincides with Increased Fees

This morning, the U.S. Department of State issued the October Visa Bulletin, which shows modest gains under the Final Action Dates chart. China saw the biggest movement in the EB-3 category, a move of 4.5 months. Similarly, India saw its biggest gain of 3 months in the EB-3 category. All other countries, including Mexico, Philippines, Vietnam, El Salvador, Guatemala, and Honduras, which had retrogression in the EB-3 category, are now current.

 

The primary question is whether USCIS will direct applicants to use the Final Action Dates chart, as they normally do, or the Dates for Filing chart. If it’s the latter, then many additional priority dates will become current, especially in EB-3 for India, which moved more than 5 years from the September Visa Bulletin. EB-1 for China and India also saw significant movement of about 2.5 years. USCIS will advise on which chart to use no later than October 1, 2020.

 

This surge in dates coincides with a significant change in the fee structure for USCIS. The biggest change in the permanent residency process is the unbundling of fees for I-485 Adjustment of Status. Until the end of September, the I-485 filing fee is $1140, which includes applications for an EAD card for work and advance parole for travel. Starting October 1, 2020, USCIS will unbundle that I-485 fee and require additional fees for EAD cards and advance parole. The EAD application will require a $550 government fee, and the advance parole application fee will be $590.

 

If USCIS uses the Dates for Filing chart, there will be a massive surge in applications for Adjustment of Status, many of which will include the additional fees of $550 and $590 for EAD cards and advance parole, respectively. Considering that many thousands of new cases would be filed in a very short period of time, it’s possible future visa bulletins could retrogress many dates that were current under the October Visa Bulletin, which would create a scenario wherein applicants are required to pay those $550 and $590 fees annually to maintain their EAD cards and advance parole.

 

We are watching the visa bulletin closely and will send an announcement once USCIS indicates which chart will be used for permanent residence applications.

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).

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).

DOL Updates H-1B Labor Condition Application and Worker Complaint Form

The United States Department of Labor (DOL) has announced updates to the H-1B Labor Condition Application form (Form ETA-9035) and the worker complaint form (Form WH-4), intended to promote business compliance and transparency with the H-1B program.

The Labor Condition Application Form will require new details about H-1B worker employment, including the following:

  • All places of employment for H-1B workers, including short-term positions.
  • Estimated number of H-1B workers at each intended place of employment.
  • Clear identification of secondary entities using H-1B workers.
  • Documentation of H-1B workers’ degrees, for employers who claim exemption solely on the basis of education.

The worker complaint form will include new fields for further details about alleged H-1B program violations.

The Office of Foreign Labor Certification will announce the date of the new forms’ availability on their?website?in the coming weeks.

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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