After weeks of anxious speculation by immigration attorneys and their clients, the US Citizenship and Immigration Services (USCIS) finally announced their premium processing strategy for this year’s H-1B cap season, and it’s … complicated:

  • H-1B cap petitions requesting a change of status may request premium processing when the case is initially filed during the first week of April;
  • The 15 day premium processing clock for change of status cases will not start until USCIS notifies the public sometime before May 20, 2019;
  • If premium processing is not requested with an initial change of status petition, a case will not be eligible to upgrade to premium processing until USCIS notifies the public that premium processing has begun; and
  • H-1B cap petitions not requesting a change of status, but instead requesting consular/port-of-entry notification, will not be eligible to upgrade to premium processing until USCIS notifies the public, which will not be until June 2019 at the earliest.

What does this mean, exactly?

Premium processing guarantees that, for an additional $1,410 government filing fee, USCIS will adjudicate a case (approve, deny or issue a Request for Evidence) within 15 calendar days. The 15 days normally begins when the premium processing request is submitted. However, for H-1B cap cases the 15 days will start when USCIS says so – no later than May 20, 2019 for change of status cases and sometime in June (or later) for all other cases.

When an H-1B petition is filed, it must indicate whether the beneficiary wishes to change status or notify a consulate or port of entry. A change of status means that once the H-1B cap petition is approved, the beneficiary’s nonimmigrant status will automatically change from their current status (such as F-1 student) to H-1B temporary worker effective October 1, 2019. Consular/port-of-entry notification means that the beneficiary’s nonimmigrant status will not automatically change on October 1. Instead, after the H-1B petition is approved, the beneficiary will need to activate their H-1B status by first applying for an H-1B visa at a US consular post abroad (unless the beneficiary is a visa exempt Canadian citizen) and returning to the United States in H-1B status on or after October 1, 2019.

Why would an H-1B cap petition request consular/port-of-entry notification instead of a change of status?

Consular/port-of-entry notification is used in various situations, including when a beneficiary: (a) is not physically present in the United States when the H-1B petition is received by USCIS; (b) has international travel plans after the petition is filed but before it is expected to be approved; or (c) wishes to remain in their current nonimmigrant status for a longer period of time.

If you have any questions about your H-1B cap case, please contact a Hunton Andrews Kurth immigration attorney.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the April Visa Bulletin, including Final Action Dates and changes from the previous month.

  • China: EB-1 halts at February 22, 2017, EB-2 leaps forward three months to April 1, 2016, and EB-3 moves ahead three weeks to August 1, 2015
  • India: EB-1 stalls at February 22, 2017, EB-2 creeps ahead three days to April 12, 2009, and EB-3 continues to outpace EB-2, advancing one month to June 22, 2009
  • Philippines: EB-1 moves forward one month to February 1, 2018, EB-2 remains current, and EB-3 jumps ahead three months to March 1, 2018
  • All Other Countries: EB-1 remains backlogged, but moves forward another month to February 1, 2018, EB-2 and EB-3 remain current

NOTE: USCIS will not accept I-485 applications in April based on the Department of State’s Dates for Filing chart. Applicants must use the Final Action Dates chart.

U.S. Citizenship and Immigration Services (USCIS) published revised Form I-539, Application to Extend/Change Nonimmigrant Status and new Form I-539A, Supplemental Information to Extend/Change Nonimmigrant Status.  Applicants may continue to file the current Forms I-539 and Supplement A until March 21, 2019; as of March 22, 2019, only the revised I-539 and I-539A will be accepted by USCIS.  The I-539A may not be filed as a stand-alone form.

According to USCIS, it may verify the information provided on the I-539/I-539A before or after the application is processed.  In addition, USCIS has a variety of tools to verify the information provided, including, but not limited to: public records and information; the Internet; interviews; and unannounced physical site inspections of residences and locations of employment.  This information will be used to assess an applicant’s compliance with relevant law and to determine eligibility for immigration benefits.  Applicants will have an opportunity to respond to any adverse or derogatory information.

As we previously noted, expanding biometrics requirements to I-539 applicants is a significant change in how USCIS previously adjudicated Form I-539 and may be an indication of further expansion of biometrics and other vetting tools into the nonimmigrant petition world.

If you need assistance with the new requirements or other immigration related issues, please contact us.

Natalie Tynan is a former DHS lawyer who focuses on immigration compliance and related issues.

On February 20, 2019, U.S. Citizenship and Immigration Services (USCIS) submitted its proposed regulation to remove work authorization for certain H-4 spouses to the Office of Management and Budget (OMB). It is likely that OMB will complete its review within 30 days.

What happens next?

Once OMB completes its review, the proposed regulation will be made available for public comment. It remains to be seen whether USCIS will allow a 60-day comment period, or limit comments to 30 days, as it did with the H-1B lottery regulation, Registration Requirement for Petitioner Seeking to File H-1B petitions on Behalf of Cap-Subject Aliens.  Once the comment period closes, the regulation will undergo additional review by OMB and the Department of Homeland Security (DHS) before it is signed by the DHS Secretary and published in the Federal Register.

Why the rush?

Since it is clear the Administration intends to push this regulation through quickly, we may see a final regulation published by summer 2019. A combination of factors are likely influencing this rapid pace.  Several priority regulatory initiatives have already made good progress, including the H-1B lottery regulation (see our coverage here) and the public charge regulation, and the Administration continues to focus on curtailing legal immigration in the employment context under the Buy American Hire American executive order.

In addition, Save Jobs USA, a group of former employees of Southern California Edison, sued USCIS in April 2015 to prevent the Obama Administration from implementing the final regulation that initially granted work authorization to H-4 spouses.  After several years of off-again-on-again litigation, the federal government continues to argue that the court should not decide the case until USCIS publishes its final regulation removing H-4 work authorization.  The next court date is March 18, 2019.  In general, federal agencies prefer to avoid or moot litigation that involves agency regulations and policy because they do not want to risk having the judicial system set law and precedent.  This is most likely a significant factor for USCIS with respect to this regulation.

What are the practical implications for H-4 Spouses?

Although we will have to wait to see how USCIS implements the regulation, it is expected that no new EAD applications filed by certain H-4 spouses will be accepted as of the date of issuance. What remains to be seen is what will happen to EADs that expire after the regulation is implemented and to EADs that are still in the processing queue as of date of implementation.  Operationally, it would seem simplest for USCIS to stop accepting new applications as of the date of issuance, allow approved EADs to remain valid to their expiration date (even if that date is later than the date of the regulation), and continue processing any applications that are still in the queue, as filing fees for those will have already been collected and work has been done to adjudicate the filings.  However, USCIS could decide to cease processing EADs in the queue, although this would likely cost the agency significant time and money both to refund fees and to update A-files appropriately.

Those H-4 spouses who are eligible to apply for initial work authorization, even for future employment, and renew existing authorization may be well advised to file as quickly as possible. At this time, USCIS is not accepting renewal applications earlier than six months prior to the current EAD expiration date.  In addition, employers may want to consider whether there are other nonimmigrant classifications that H-4 spouses may be qualified for, such as H-1B, and whether they are willing to sponsor the individual.

If specific legal advice is required, please contact one of our attorneys, who will be happy to assist.

On February 11, 2019, U.S. Citizenship and Immigration Services (USCIS) announced a revised Form I-539, Application to Extend/Change Status.  The revised form will publish and become effective on March 11, 2019.  As of the effective date, USCIS will only accept the revised Form I-539.  Affected foreign nationals include spouses and children of H-1B and L visa holders; visitors for business or pleasure; F-1 students and J-1 exchange visitors for certain changes of status.

USCIS will also publish a new Form I-539A, Supplemental Information to Extend/Change Nonimmigrant Status. Form I-539A replaces Supplement A in the current version of the Form. Like the current version, it must be submitted with Form I-539 to list any co-applicants.

Changes on the New Form

The revised Form I-539 requires that every co-applicant included on the primary applicant’s Form I-539, regardless of age, submit and sign the new Form I-539A. Parents and guardians may sign for children under the age of 14.  In addition, every applicant and co-applicant will be subject to biometrics collection, including paying the $85 biometrics services fee.  Every applicant and co-applicant will receive a biometric services notice with an individual receipt number informing them of their appointment at local Application Support Centers where fingerprints, photographs, and/or signatures are collected.  Certain A, G, and NATO nonimmigrants are exempt from the biometrics requirement.  USCIS will reject any Form I-539 that is missing required signatures or biometrics fees.

Likelihood of Processing Delays

Given the expansion of biometrics collection, foreign nationals, principals and dependents, can expect longer processing times due to the additional biometrics processing required for each application. Increased volume and the time it takes to complete the biometrics and background checks could also increase wait times for Employment Authorization Documents (EAD).

Impact on Fiscal Year 2020 Cap Filings

Unfortunately, the public will not be able to view the revised I-539 and new I-539A until it goes live on March 11th.  This leaves little time to prepare and finalize these applications prior to submission of FY2020 H-1B cap petitions during the first five business days of April.

Analysis

USCIS has regulatory authority to require any applicant, petitioner, sponsor, beneficiary, or individual to appear for an interview and biometrics collection. USCIS thus far only collects biometrics in connection with immigrant visa petitions.  Biometrics collection assists USCIS in conducting required background and security checks and assists with confirming individual identity.  Starting March 11th, USCIS will require biometrics in connection with a nonimmigrant visa application for the first time.

Pursuant to section five of Executive Order 13769 (March 6, 2017), the Department of Homeland Security is directed to implement uniform screening and vetting standards for all immigrant programs. As a result, USCIS remains focused on improving and potentially increasing its vetting of applicants and petitioners.  As a result, foreign nationals and their employers should anticipate an expansion of biometrics to potentially include I-129 beneficiaries and others seeking immigration benefits.

While we may see litigation challenges to the expanded collection, employers and foreign nationals should be prepared to complete the revised I-539 and new I-539A, as applicable, to ensure that filings are not rejected by USCIS.

If you need assistance with the new requirements or other immigration related issues, please contact us.

Natalie Tynan is a former DHS lawyer who focuses on immigration compliance and related issues.

The Visa Bulletin is released monthly by the Department of State and is used to determine when a sponsored foreign national can submit the final step of the green card process. The complete visa bulletin can be found here.

Below is a summary of the March Visa Bulletin, including Final Action Dates and changes from the previous month.

  • China: EB-1 moves forward two weeks to February 22, 2017, EB-2 jumps ahead three months to January 1, 2016, and EB-3 creeps forward one week to July 8, 2015
  • India: EB-1 advances two weeks to February 22, 2017, EB-2 crawls forward three days to April 9, 2009, and EB-3 continues to outpace EB-2, advancing one month to May 22, 2009
  • Philippines: EB-1 moves forward one month to January 1, 2018, EB-2 remains current, and EB-3 jumps ahead four months to December 1, 2017
  • All Other Countries: EB-1 remains backlogged, but moves forward one month to January 1, 2018, EB-2 and EB-3 remain current

NOTE: USCIS has not yet announced if they will accept I-485 applications in March based on the Department of State’s Dates for Filing chart.

Foreign Students Will Face New Threats

 DHS’s Fall 2017 regulatory agenda proposed “comprehensive reform” to practical training programs, which allow foreign students to obtain paid work after graduation – a pathway that often leads to H-1B and green card sponsorship by a U.S. employer.  Although no final rule has yet been published, ICE is still expected to end an Obama-era provision that extended practical training from one to three years for graduates in STEM fields who work for employers enrolled in E-Verify. ICE may also be looking at ways to restrict the standard one-year work permit that all students are eligible for, regardless of academic field.

In addition, USCIS’s August 2018 policy memorandum, “Accrual of Unlawful Presence and F, J and M Nonimmigrants,” will continue to adversely affect many students and may increase the number of students who become ineligible to return to the United States for three- or ten-year periods. Because foreign students occupy one of the most rule‑bound U.S. visa categories and depend on school staff to communicate what is permitted and what is not, unwitting lapses are common. Under the new policy, an officer of DHS (which includes ICE, CBP and USCIS) can retroactively determine that a student began accruing unlawful presence on the day they first failed to maintain status. If unlawful presence reaches 180 days, the three-year bar is triggered when the student leaves; a year of unlawful presence triggers the ten-year bar. This is a radical change in practice for students, who have always been admitted not until a fixed expiration date, as others are, but instead for “duration of status,” to more easily allow for changes in their academic programs. Until the August 2018 memo, students did not accrue unlawful presence unless a formal finding was made by USCIS terminating their status. Now, in addition to clarifying that both ICE and CBP can determine when unlawful presence begins, DHS also intends, according to its Fall 2018 regulatory agenda, to establish a maximum period of authorized stay for nonimmigrant students, eliminating “duration of status” benefits altogether.

Compliance and Enforcement Actions Will Broaden

Last year, we predicted that on-site visits by government inspectors to H‑1B and L-1 workplaces would increase and could expand to other visa categories.  We relayed accounts by our clients of site visits for employees on blanket L-1 visas and predicted increased surveillance and inspection in that category. In 2018, ICE initiated more than 6,800 worksite enforcement investigations and almost 6,000 I-9 audits, a four- and five-fold increase from 2017, respectively. We expect to see this trend continue in 2019 in all industries.

USCIS has also ramped up enforcement by focusing resources on its Fraud Detection and National Security Directorate (“FDNS”), which conducts administrative investigations of fraud in the context of petitions and applications to USCIS for immigration benefits. According to the USCIS Ombudsman’s June 2018 Annual Report to Congress, in Fiscal Year 2018, FDNS’s staffing levels doubled over FY2012 (from about 750 to more than 1,500), and its approach became more “risk-based,” using fraud criteria to target certain employers. Often, when a case is long past posted processing times, or a status message indicates the case is being held “in abeyance,” it is because FDNS is conducting a heightened background investigation. These can encompass government databases, open source information, physical site visits, written Requests for Evidence, and overseas verifications of foreign records. In 2019, we may see FDNS investigations and heightened background investigations lead to USCIS issuing a higher volume of Notices to Appear (“NTAs”), which initiate removal proceedings against an individual. It remains unclear whether USCIS will prosecute these cases through its own attorneys or, instead, will continue to rely on ICE to represent the government in immigration court. If USCIS has the resources to issue and prosecute NTAs, we may see even longer backlogs in already overloaded immigration court dockets.

We also expect a continued push by the government to make E-Verify mandatory for all U.S. employers. The E-Verify system now has the capacity to check driver’s licenses against databases in all fifty states, the District of Columbia, and Puerto Rico.  This is intended to reduce the number of fraudulent licenses that are presented for identity verification; however, E-Verify cannot determine whether the license actually belongs to a specific individual or compare the picture on the license to the individual.

Enforcement actions we expect to see throughout 2019 go beyond worksite I-9 compliance and E‑Verify. For example, with 2019 only one month old, we have already blogged about a sting operation in which ICE ran a fake university to target recruiters and students who may have knowingly registered despite the lack of instructors and classrooms, in order to obtain work authorization. We can expect to see continued enforcement actions aimed at student visa abuse and other forms of potential immigration fraud throughout the year.

 Public Charge Findings Will Contribute to Decreased Immigration

Individuals who are a “public charge” cannot support themselves through employment, assets or the help of family and friends, resulting in dependency on government benefits and assistance programs. Except for humanitarian categories (refugees, asylees, victims of crime, etc.), current law prevents immigrants from using major federal means-tested benefits for at least five years after gaining lawful permanent resident status; hence, they must be sponsored by an employer or by a family member who meets certain income requirements.  In October 2018, USCIS proposed a rule to greatly expand the benefits that would make someone a public charge, sweeping in many that have historically been exempt, including nutrition assistance from food stamps or the WIC program, health insurance through Medicaid, and housing help through Section 8 vouchers. In addition, the final rule would apply not only to individuals who are immigrating permanently to the United States, but also to those who seek only temporary admission or a temporary extension or change of their nonimmigrant status.  USCIS received more than 200,000 comments on the proposed rule, a daunting number that will take time to review and analyze.  However, because public charge has been a top priority for this Administration, we are likely to see a final regulation in 2019.  It is also likely that we will see litigation after the final rule is published, as it seems geared toward deterring and reducing legal immigration rather than truly examining the likelihood that immigrants will actually become a public charge.

During the government shutdown, lasting from December 22, 2018 through January 25, 2019, employers were required to complete and retain Form I-9, Eligibility Employment Verification, for each individual hired during the shutdown, even though E-Verify services were unavailable. However, it was recently announced that E-Verify resumed operations on January 28, 2019 and participating employers have until February 11, 2019 to create an E-Verify case for all new hires during the government shutdown, using the hire date on the employee’s I-9. Employers should be prepared for longer than expected processing times due to the length of the government shutdown and the accumulation of cases now entering the E-Verify system.

In situations where the E-Verify case creation is more than three working days after the date of hire, USCIS instructs employers to select the “Other” option from the drop-down list and enter “E-Verify Not Available.” If the data entered does not match government records and a Tentative Nonconfirmation (TNC) results, any employer on notice of an employee’s intention to contest the TNC by February 11, 2019, must revise the date for employees to begin resolution of the TNC by adding ten federal business days to the date on the employee’s “Referral Date Confirmation” notice.  This only applies to TNC referrals impacted by the government shutdown.  TNC referrals after E-Verify resumed operations do not receive the additional ten days to contest.

Employers should pay close attention to the dates noted above to ensure compliance with E-Verify requirements. If you need assistance with E-Verify and other compliance-related issues, please contact us.

Natalie Tynan is a former DHS lawyer who focuses on immigration compliance and related issues.

A year ago, we blogged about the changes we saw coming in 2018 for U.S. employers and their employees under the April 2017 Buy American / Hire American executive order.  Though widespread across visa and green card categories, those changes have all amounted to increasing obstacles for U.S. companies to hire, retain and sponsor foreign nationals.  H‑1B workers, their H‑4 spouses, F‑1 students, TN professionals under NAFTA (to be replaced by the United States-Mexico-Canada Agreement, once approved by Congress), and L‑1 managers and specialists who transfer into U.S. companies from related foreign entities – all of these workers, as well as their employers, have been frustrated by dramatically increased processing times, new restrictions on expedited processing, questionable challenges to eligibility, often spurious denials, and generalized errors and oversights by federal immigration agencies.  Unfortunately, we expect these trends to continue, and other non-business-friendly changes are also on the horizon.

H-1B Workers Remain in the Cross-Hairs

In Fall 2017, the Department of Homeland Security proposed a new regulation that would do away with its long-standing H-1B lottery system. Over the years, as demand has grown, while congressionally allocated H-1B numbers have remained static, the annual filing period has shrunk to the first five business days of April, and the odds of being selected in the annual lottery have dropped to below 40 percent.  On January 31, 2019, as we previously discussed, DHS announced the final rule, which simultaneously:  (a) requires employers to pre-register the workers they wish to sponsor and submit petitions only if they are notified that they have been randomly selected to do so; (b) suspends the pre-registration requirement until Fiscal Year 2021; and (c) increases the odds that workers who have advanced U.S. degrees will be selected in the lottery this year and in the future.  The last provision appears to implement Buy/Hire American’s mandate to “ensure that H-1B visas are awarded to the most-skilled or highest-paid.”  However, as reported in the Wall Street Journal, court challenges to the new rule are likely, and with only eight weeks to go before the lottery window opens, any injunctions could disrupt H-1B filing season this year.

EB-1 Worldwide Waiting List Remains Backlogged

As subscribers to our blog were informed last fall, a surprising backlog developed in summer 2018 in the Employment-Based First Preference green card category.  The “EB-1” classification, which includes Outstanding Professors/Researchers, Multinational Managers/Executives, and Aliens of Extraordinary Ability in various fields, is exempt from the usual requirement that an employer prove no qualified U.S. worker is available before sponsoring a foreign national – a preliminary step that often adds a year or more to the overall green card process.  In addition, EB-1 demand has been historically low, even for Indian and Chinese workers, in comparison to other categories that have years-long waiting lists.  For these reasons, EB-1 sponsorship has traditionally been a much faster path to a green card for the lucky few who qualify.  This long-standing state of affairs abruptly changed in August 2018, when a waiting list of more than six years suddenly developed in the EB-1 category for Indians and Chinese and more than two years for all other nationalities.  Although the backlogs were expected to vanish in October, when annual allocations were refreshed at the start of Fiscal Year 2019, a wait list of more than a year has persisted for all countries.  As we explained in our Law360 article in December 2018, EB-1 backlogs may well be the “new normal” for a combination of technical and political reasons.  By regulation, if supply exceeds demand in the EB-4 and EB-5 categories – which include Religious Workers, Special Immigrant Juveniles, International Broadcasters, Panama Canal Zone Employees, Afghan/Iraqi Translators, and Immigrant Investors – those extra green card numbers are allocated to the EB-1 category.  Until last summer, a large “spill over” of this kind occurred every year without fail, keeping the EB-1 category current, or causing only brief interludes late in the year, when green cards were not available for Chinese and Indian nationals.  With a twelve-fold increase since 2010 in EB-4 Special Immigrant Juvenile filings, due to the surge in unaccompanied minors arriving from Central America, and a five-fold increase in EB-5 Immigrant Investors, we anticipate that the EB-1 category will remain retrogressed for the foreseeable future.

H-4 Work Permits Remain in Jeopardy

A year ago, we predicted that the Trump Administration’s threat to eliminate work permits for the spouses of H-1B workers would likely come to pass in 2018. This has not yet occurred, probably because the Administration has had bigger fish to fry, with unprecedented numbers of asylum seekers at the southern border, the resulting family separation crisis, and associated lawsuits.  Nonetheless, this item remains a priority on DHS’s Fall 2018 regulatory agenda.  We anticipate the agency will publish a proposed rule this year and lawsuits will follow.

DACA and TPS Lawsuits Continue

As has been widely reported in the mainstream media, President Trump has ended numerous humanitarian programs, including the Obama Administration’s Deferred Action for Childhood Arrivals (“DACA”), as well as Temporary Protected Status for nine nationalities, including several TPS programs that were established more than twenty years ago. As a result of lawsuits filed in multiple states, the government is temporarily enjoined from implementing these actions.  Although first-time applicants may not file for DACA at this time, DHS must continue to accept renewal applications.  However, since DACA work permits are not eligible for the automatic 180-day extension that other work permit categories enjoy, and since USCIS processing time for renewals varies from five months to more than two years at the regional service centers that handle them, DACA workers and their employers continue to face substantial disruptions.

Similarly, the government is prohibited from carrying out TPS terminations while three federal lawsuits move through the courts. Two of those lawsuits challenge terminations for El Salvador, Honduras and Haiti; the third seeks protection for TPS beneficiaries of any nationality who have U.S. citizen children.  Until the injunctions are lifted or the lawsuits resolved, TPS renewals may continue to be filed, and these workers do benefit from the 180-day automatic extension.

Please subscribe to our blog and stay tuned for the second installment of our 2019 forecast, which will cover the F-1 student visa category, worksite visits and other compliance and enforcement actions, and the impact of changes to the “public charge” rules.

In a continuation of U.S. Immigration and Customs Enforcement (“ICE”)’s crackdown on fraud among the foreign student population, ICE established and ran “The University of Farmington” in the Detroit suburbs.  As a result, the government indicted eight individuals for conspiracy to commit visa fraud and harboring aliens for profit.  At least 600 foreign nationals obtained fraudulent student visas through ICE’s undercover operation, which had no instructors or classes that would enable students to pursue a course of study.  Recruiters actively identified and helped enroll foreign nationals into the “university” and helped them obtain documentation that was required in order to seek work authorization from U.S. Citizenship and Immigration Services (“USCIS”).  Students who enrolled in the “university” also face potential civil and criminal penalties if the government can prove they knew they would not attend classes or pursue a course of study.

Continue Reading Another Fake University – U.S. Immigration and Customs Enforcement Stings Again