Hunton Andrews Kurth LLP is pleased to announce the addition of Natalie Tynan to its national labor and employment practice. Tynan joins the firm’s immigration group as a senior attorney in Washington.

Tynan joins the firm after more than eleven years with the US Department of Homeland Security. She has served in various roles, including special assistant with the U.S. Citizenship and Immigration Service’s Office of Policy and Strategy, where she was responsible for implementing executive orders and agency programs, and as chief of adjudications for USCIS Service Center Operations.

Most recently, she was unit chief of policy at Immigration and Customs Enforcement, where she served as a member of the management team responsible for coordinating legal, policy and operational activities. She brings extensive knowledge of immigration topics such as worksite enforcement, adjudication of petitions and applications, government investigations, detention, implementation of executive orders, and drafting and implementation of regulations.

“Natalie’s insight and understanding of the complexities of DHS’s immigration programs adds to the depth of our capabilities,” said Adam J. Rosser, a partner with the firm’s immigration group. “Her background will allow her to play a key role to broaden our immigration compliance capabilities, and to navigate an increasingly restrictive and unpredictable adjudicatory environment.”

Hunton Andrews Kurth’s immigration practice handles all immigration needs for corporate clients, from sponsorship of key employees for temporary visas and permanent residence, to I-9 compliance advice, government investigations and due diligence. The team of experienced immigration lawyers represents multinational organizations across various industries including manufacturing, pharmaceuticals, medical devices, banking, nonprofits, communications and entertainment.

In August 2017, rumors began circulating that U.S. Citizenship and Immigration Services was denying applications for advance parole if the applicant had departed the US before the application was approved.

Soon after these reports surfaced, USCIS officially confirmed the change, which was implemented without formal announcement or advance notice of any kind.  Since then, USCIS has indiscriminately applied the policy, including to those who traveled with their existing valid advance paroles (for example, while their renewals were pending) or on valid “dual intent” visas, such as H and L.

H and L workers have historically traveled freely and without adverse impact after filing both advance parole and adjustment applications, while others – such as those on E, O, P, and TN visas – are held to a “non-immigrant” intent standard and must wait for advance parole before traveling.

This week, USCIS revised its advance parole policy yet again, this time by adding “Special Instructions” to its website, Application for Travel Document | USCIS, which read as follows:

If you file Form I-131 … to request an advance parole document and depart the United States without possession of an advance parole document that is valid for the entire time you are abroad, your Form I-131 will be considered abandoned.  At times, an individual may have an approved advance parole document while a second one is pending.  [Those] individuals may travel … provided the document is valid for the entire duration of the time abroad.  The pending Form I-131 will not be considered abandoned in this situation.

Since these “Special Instructions” do not exempt “dual intent” nonimmigrants, H and L workers should expect continuing denials of their advance parole applications unless they hold existing parole valid for the entire duration of their foreign trips.

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

  • China: EB-1 advances three and a half months to December 15, 2016, EB-2 creeps ahead one month to August 1, 2015, and EB-3 stalls at June 8, 2015
  • India: EB-1 also advances three and a half months to December 15, 2016, EB-2 freezes at April 1, 2009, and EB-3 remains March 1, 2009
  • Philippines: EB-1 advances three months to October 1, 2017, EB-2 remains current, and EB-3 moves forward another week, advancing to June 22, 2017
  • All Other Countries: EB-1 remains backlogged, but advances three months to October 1, 2017, EB-2 and EB-3-remain current

NOTE: USCIS has announced that it will accept I-485 applications in January based on the Department of State’s Dates for Filing chart.

An H-1B cap registration proposal has been in the works since 2011, but it may have been President Trump’s Buy American and Hire American (“BAHA”) executive order that finally created the right climate to push the proposal as far as it has now come.  In its proposed rule, published in the Federal Register on December 3, 2018, the Department of Homeland Security (“DHS”) describes two major changes it seeks to implement to the H-1B cap selection process, beginning in 2019.

First, the proposed rule requires employers to submit a registration within a specific timeframe for each beneficiary the employer intends to employ in H-1B status. The purpose of the registration requirement, according to DHS, is to make the process more streamlined and cost effective.  Employers would be allowed to file H-1B petitions only if their registrations were selected.  The United States Citizenship and Immigration Services (“USCIS”) would then instruct the employer to file a petition on behalf of the prospective beneficiary named in the registration.

Second, the proposed rule reverses the order in which H-1B beneficiaries are selected in the lottery by first selecting those who qualify under the “regular cap” and then selecting those who qualify under the advanced degree exemption. According to DHS, the purpose of this change is to prioritize prospective beneficiaries who hold an advanced U.S. degree. This change seems to partly align with one of the stated directives of BAHA: to reform the H-1B visa program by ensuring that visas are awarded to the most-skilled or highest‑paid petition beneficiaries.

The following are key points employers should know about the proposed rule:

H-1B registration process

  • WHEN: Expected to become effective for the FY2020 H-1B cap season, but USCIS reserves the right to delay implementation in the event of technical challenges.
  • HOW: Employers will be required to submit an online registration during a 14-calendar‑day period prior to April 1, 2019. The exact time period will be announced on USCIS’s website 30 days before the registration period begins.
    • Only one registration will be allowed per beneficiary. Duplicate registrations will result in the invalidation of all registrations submitted by the employer for that beneficiary.
    • Each registration will require basic information, including employer’s name, FEIN and contact information; beneficiary’s name, date of birth, country of citizenship, and passport number; whether the beneficiary hold an advanced U.S. degree; and what position is being offered.
    • If USCIS does not receive enough registrations to meet the cap during the initial registration period, registration will remain open until a sufficient number is received.
    • If USCIS receives more than enough registrations during the initial period, USCIS will conduct a random selection from all the registrations received.
    • USCIS will announce on its website when sufficient registrations are received.
    • The number of registrations that are needed to meet the cap is determined in advance, based on historical data, and includes a surplus in order to account for petitions that are withdrawn, denied, and revoked.
    • Petitioners whose registrations are selected will be notified that they may file their petition(s) during their designated filing period.
    • Each filing period is expected to last 60 days, but USCIS will establish several, staggered filing periods to reduce processing pressures on the agency.
    • Employers will not be permitted to substitute beneficiaries in registrations that are selected for filing.

Change in the order of selection

In the past several years, USCIS has received more than enough H-1B petitions to meet the cap. Under current regulations, petitions are accepted during the first 5 business days of April.   USCIS then conducts a random lottery to select a sufficient number to meet the advanced degree exemption of 20,000.  Advanced-degree petitions that are not selected in that lottery are then entered into the regular pool, from which USCIS selects a sufficient number to meet the regular cap of 65,000.

    • HOW: Under the proposed rule, USCIS would first select a sufficient number of registrations to meet the regular cap of 65,000 from among all registrations that have been submitted, including those for beneficiaries who have advanced U.S. degrees. USCIS would thereafter select registrations for the advanced-degree exemption.
    • WHY: DHS interprets the intent of the current regulations as increasing the number of individuals with advanced U.S. degrees who get H-1B visas.  DHS  believes this new process is more in line with that intent and will increase advanced-degree beneficiaries who get H-1B visas by 16 percent, or 5,340 workers.

Although the H-1B cap registration rule has come this far, USCIS is soliciting comments from stakeholders on essential elements of the rule, including: (1) how to enhance the integrity of the registration process and reduce the potential for abuse; (2) the  type and scope of information that should be submitted with each registration; and (3) making the change to the advanced degree selection process separate from the new registration process.  Written comments are due by January 2, 2019.

We will provide an update to this post once the proposed rule becomes final.

As mentioned in our December Visa Bulletin post, the employment-based first preference (EB-1) category remains backlogged for all countries. Despite previous expectations, it appears that the backlog is here to stay. The Department of State’s Charlie Oppenheim recently told the American Immigration Lawyers Association (AILA) that the Final Action dates for the EB-1 category would reach June 1, 2018 (for all countries except China and India) within the next eight to twelve months. If this prediction proves true, the EB-1 category will never become current this fiscal year. Such a prolonged backlog is not only unprecedented, but alarming, as the employment-based second and third preference categories (EB-2 and EB-3) are current (for all but those born in China, India or the Philippines). This means that a foreign born Nobel Prize winning scientist or a chief executive at a multinational corporation will now wait years to receive a green card, while an entry-level worker could receive a green card much sooner.

The main culprit for such a lengthy backlog in the EB-1 category appears to be higher than usual demand in the employment-based fourth and fifth preference categories (EB-4 and EB-5). In the past, both the EB-4 and EB-5 categories rarely met their congressionally mandated limits and the extra visa numbers “spilled over” to the EB-1 category. This year, the EB-4 subcategories of Religious Workers and Special Immigrant Juveniles, as well as EB-5 investors, are all exceeding supply. In addition, there is increased usage of the EB-1 multinational executive/manager subcategory as many seek to avoid the traditional backlogs of the EB-2 and EB-3 categories. Overall demand for immigrant visas has also increased as growing uncertainty over changing immigration policies has led many to seek permanent residence while they still can.

In practice, the EB-1 backlog means that those that qualify for the category (Aliens of Extraordinary Ability, Outstanding Professors/Researchers and Multinational Executives/Managers) will not be able to submit applications for the last step of the green card process, the I-485 application to adjust status, until their priority date becomes current. In addition, they and their family members, will not be able to take advantage of the concurrent applications for employment and travel authorization. Because of these new delays, anyone wishing to apply in the EB-1 category should lock in their priority date as soon as possible by submitting a stand-alone I-140 immigrant petition to the US Citizenship and Immigration Services. In certain situations, other avenues for obtaining permanent residence may be more attractive, such as filing a PERM application or an EB-2 National Interest Waiver petition. For assistance with these issues, 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 December Visa Bulletin, including Final Action Dates and changes from the previous month. Contrary to projections announced in the September Visa Bulletin, the EB-1 category will NOT return to current in December. In fact, despite some insignificant forward movement, unprecedented backlogs will continue in this category for all countries. The December Visa Bulletin does not include the customary note to explain this deviation.

  • China: EB-1 advances slightly to September 1, 2016, EB-2 advances another six weeks to July 1, 2015, and EB-3 creeps forward seven days to at June 8, 2015
  • India: EB-1 moves ahead three months to September 1, 2016, EB-2 advances six days to April 1, 2009, and EB-3 jumps forward two months to March 1, 2009
  • Philippines: EB-1 advances three months to July 1, 2017, EB-2 remains current, and EB-3 creeps forward one week to June 15, 2017
  • All Other Countries: EB-1 moves ahead three months to July 1, 2017, EB-2 and EB-3-remain current

NOTE: USCIS has not yet announced if it will accept I-485 applications in December based on the Department of State’s Dates for Filing chart.  However, the trend over the last several months has been to accept employment based I-485 applications based on the Date for Filing chart.

The US Department of Labor (USDOL) has published its statistics for fiscal year 2018, which ended on September 30, 2018. The USDOL certified the majority of the 119,776 labor certification (PERM) applications processed in the last fiscal year. Of the 24,052 applications still in process with the USDOL as of the end of the fiscal year, 64% were still in analyst review and 25% were in audit review. The majority of PERM applications were for: computer and mathematics occupations; positions in California and Texas; positions in the Professional, Scientific and Technical Services or manufacturing industries; and positions requiring at least a bachelor’s degree or higher.  The high rate of certification reflects the low national unemployment rate and tight labor market that employers are facing.  However, American Immigration Lawyers Association members are also reporting an increase in extensive requests for evidence for immigrant worker petitions (I-140) from the US Citizenship & Immigration Services (USCIS), following PERM certification.  At times, these include requests for PERM recruitment documents.  The process for employment-based permanent residence continues to be long and arduous both for nonimmigrants and for their employers.

UPDATE: In November, USCIS will accept EB I-485 applications based on the Department of State’s Dates for Filing chart.

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 November Visa Bulletin, including Final Action Dates and changes from the previous month:

  • China: EB-1 freezes at June 1, 2016, EB-2 advances six weeks to May 15, 2015, and EB-3 halts at June 1, 2015
  • India: EB-1 remains at June 1, 2016, EB-2 stalls at March 26, 2009, and EB-3 freezes at January 1, 2009
  • Philippines: EB-1 stalls at April 1, 2017, EB-2 remains current, and EB-3 slowly creeps forward, advancing seven days to June 8, 2017
  • All Other Countries: EB-1 remains backlogged to April 1, 2017, EB-2 and EB-3-remain current

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

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 October Visa Bulletin, including Final Action Dates and changes from the previous month:

  • China: EB-1 jumps forward more than four years to June 1, 2016, EB-2 rebounds to April 1, 2015, and EB-3 continues to speed past EB-2 and moves to June 1, 2015
  • India: EB-1 jumps forward more than four years to June 1, 2016, EB-2 moves ahead two years to March 26, 2009, and EB-3 returns to the July 2018 date, advancing six years to January 1, 2009
  • Philippines: EB-1 moves ahead ten months to April 1, 2017, EB-2 returns to current, and EB-3 creeps forward seven months to June 1, 2017
  • All Other Countries: EB-1 remains backlogged, but advances ten months to April 1, 2017, EB-2 and EB-3-both return to current

NOTE: USCIS has not yet announced if it will accept I-485 applications in October based on the Department of State’s Dates for Filing chart. However, the trend over the last several months has been to NOT honor the Dates for Filing chart, and instead only accept I-485 applications based on the Final Action Dates as listed above.