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 May Visa Bulletin, including Final Action Dates and changes from the previous month.

  • China: EB-1 remains stalled at February 22, 2017, EB-2 advances six weeks to May 15, 2016, and EB-3 moves ahead twenty-one days to August 22, 2015
  • India: EB-1 freezes at February 22, 2017, EB-2 moves forward four days to April 16, 2009, and EB-3 continues to outpace EB-2, creeping ahead nine days to July 1, 2009
  • Philippines: EB-1 moves forward one month to March 1, 2018, EB-2 remains current, and EB-3 leaps ahead three months to June 1, 2018
  • All Other Countries: EB-1 remains backlogged, but continues to slowly advance, moving one month to March 1, 2018, EB-2 and EB-3 remain current

NOTE 1:   The May Visa Bulletin includes a note warning that retrogression in the EB-1 China and EB-1 India categories is possible in the coming months.

NOTE 2:  USCIS will not accept I-485 applications in May 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 has just announced that it has completed what is commonly known as the “master’s cap” H-1B lottery.  The agency confirmed, as was widely anticipated, that sufficient petitions were received during the first five business days of April 2019 to satisfy this additional pool of 20,000 H-1B numbers, which are set aside for workers who possess an advanced degree from a U.S. college or university.  As we previously reported, the “regular cap” of 65,000 numbers was also met during the 5-day filing window.

USCIS also just released the total number of H-1B petitions that were received for both lotteries during the FY2020 filing window:  201,011.  That number represents almost a 6 per cent increase over FY2019, when 190,098 total petitions were received.

USCIS typically does not report what portion of the overall volume of petitions are for people with advanced degrees.  However, we anticipate that, this year, the agency will release at least some of those statistics if the change that was implemented this year – reversing the usual lottery order so that more advanced-degree workers would be selected – was successful.  Please watch our blog for updates.

U.S. Citizenship and Immigration Services has reported receiving enough petitions during the first five business days of April 2019 to meet the congressionally mandated 65,000 H-1B regular cap for fiscal year 2020.  USCIS will next determine if it has received enough petitions to meet the 20,000 U.S. advanced degree exemption or “master’s cap.”

This year, for the first time, the agency ran the regular lottery first, with the stated purpose of ensuring that more of the limited annual H-1B numbers went to those with advanced U.S. degrees.  We will provide an update once the agency makes an announcement about the master’s cap lottery.

In the coming weeks, we expect first to receive electronic receipt notices for selected H-1B cap petitions that were filed under USCIS’s premium processing service.  The agency has announced that the 15-day premium processing period will start no later than May 20.  We anticipate that hard-copy I-797 receipt notices for selected petitions that were filed under regular processing will trickle in through June.  As in previous years, we expect to receive rejected petitions – those that were not selected in either the regular or the master’s cap lottery – to begin arriving in early July.

On April 3rd, U.S. Immigration and Custom Enforcement’s (ICE) largest worksite compliance operation hit the private company CVE Technology Group (CVE) and four of CVE’s staffing companies in Texas.  ICE executed criminal search warrants and arrested approximately 280 CVE employees who, according to ICE, were working unlawfully.  Each arrested employee will be fingerprinted and processed by ICE for removal from the United States.  Approximately 200 ICE officers took part in the raid, including manning busses to remove the alleged unauthorized workers and patrolling the area with helicopters.  ICE wants our attention and they got it with the scope and size of this raid.

Why Raid?

The raid, according to ICE, is part of a larger, ongoing investigation and likely involves the company’s management and executive officials. ICE announced that it received tips from various sources that CVE knowingly hired unauthorized workers and that many other employees presented fraudulent documents during the I-9 process.  ICE verified the allegations through an I-9 audit, which revealed noncompliance and hiring irregularities.  Knowingly hiring unauthorized workers carries criminal liability as well as civil monetary fines for failure to comply with immigration law, including I-9 compliance.  Criminal charges can include harboring, alien smuggling, conspiracy and money laundering.

Culture of Compliance

ICE says it is building a culture of compliance. The agency is getting the attention of employers through a dramatic and continued rise in the number of I-9 compliance audits coupled with an increasing number of high profile raids with civil and criminal arrests.  ICE continues to conduct I-9 audits looking for technical and substantive mistakes that can result in significant monetary fines. In fiscal year 2018, ICE opened 6,848 worksite investigations compared to 1,691 in FY17; initiated 5,981 I-9 audits compared to 1,360; and made 779 criminal and 1,525 administrative worksite-related arrests compared to 139 and 172, respectively; all of these categories surged by 300 to 750 percent over the previous fiscal year.

What does this all mean for U.S. employers?

As ICE escalates its worksite enforcement actions, all employers are at risk, not just those engaging in criminal activity. For any U.S. employer, it’s time to pay attention to worksite enforcement and compliance because these issues are not going away.  General good housekeeping can still go a long way to mitigating I-9 problems, including conducting regular internal audits, ensuring consistent I-9 and other immigration practices are consistent across the board, and taking other actions to present good faith compliance efforts.  This will place your company in better position to survive an ICE raid.

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

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.