The United States Citizenship and Immigration Services (“USCIS”) has announced that the suspension of premium processing for FY2019 H‑1B cap cases, announced on March 21, 2018, has been extended until possibly February 2019.

USCIS also announced that effective September 11, 2018, premium processing will be suspended for H‑1B cases filed at the Vermont and California Service Centers, except for:

  1. H-1B petitions filed by cap-exempt petitioners or by petitioners who will be employing beneficiaries at qualifying cap-exempt institutions, entities, or organizations; or
  2. H-1B petitions filed at the Nebraska Service Center by petitioners requesting either an extension of a beneficiary’s H-1B status or requesting consular notification based on the continuation of the beneficiary’s previously approved employment without change with the same petitioner

In its announcement, USCIS explained that because of the recent increase in H-1B petitions filed requesting premium processing, USCIS has been unable to process long-pending H-1B petitions. Therefore, the expanded suspension of premium processing was required to allow USCIS personnel to focus on reducing the current backlog of pending H-1B petitions.

USCIS will continue to accept premium processing requests for H-1B cases until September 10, 2018. However, if a case is not adjudicated within the required fifteen calendar day timeframe, USCIS will refund the fee for premium processing and the case will be processed under regular processing.

We will update this post as soon as the suspension is lifted.

On June 28, 2018, U.S. Citizenship and Immigration Services issued a policy memo telling adjudicators when they are required to issue Notices To Appear after denying or while processing a petition or application for benefits.  The NTA is the charging document that, once filed with the Executive Office for Immigration Review (a branch of the U.S. Department of Justice), puts an individual into formal removal proceedings before an immigration judge.

Except in certain, very limited circumstances where USCIS is required by statute to issue NTAs, the agency has discretion whether to refer an applicant or petitioner to immigration court or to Immigration & Customs Enforcement (ICE).  USCIS issued its last formal policy on the exercise of this discretion in November 2011, almost seven years ago.

Under the earlier guidance, adjudicators were told they must issue non-statutory NTAs or refer to ICE only if the person posed a serious threat to national security or public safety or if USCIS could formally substantiate that fraud had occurred.  If people were being investigated or had already been arrested or detained for an egregious crime – murder, rape, sexual abuse of a minor, a serious crime of violence, alien smuggling, child pornography, or felony reentry after removal – they should be issued NTAs or referred.  For citizenship applicants, adjudicators were told to consider the “totality of the circumstances” before issuing an NTA, including how long it had been since a crime was committed, whether people had reformed their lives, how long they had been in the country, and what social contributions they had made, such as pursuing an education or serving in the military.

The new policy keeps all of the prior guidance, but expands on the prior grounds and lists completely new grounds, vastly increasing the numbers of people who must be issued NTAs or referred to ICE.  These new categories include Temporary Protected Status applicants whose countries’ TPS designations have been terminated; cases in which not only fraud, but also misrepresentation and public benefits abuse, have been substantiated; aliens who have been convicted of or charged with any criminal offense, or who have simply committed acts that could be charged; and all citizenship applicants who are denied due to a criminal offense, regardless of mitigating circumstances.

Perhaps the most radical departure from prior policy is that the new memo targets for removal simply anyone whose petition or application of any kind is denied, leaving them with no underlying status.  In virtually all cases, these are people who held valid status at the time of filing because those without status are ineligible to file for any but humanitarian benefits, and there are special exceptions for them.  Thousands of those who will be most affected by the new NTA guidance are people whose underlying status – including work-authorized status for US employers – will have expired while they were waiting for a decision from USCIS.  Although the law confers ongoing lawful presence of up to 120 days past an expiration date while awaiting a decision, USCIS now takes far longer than that to process even the most routine requests.  Waits of 6, 10, even 24 months are common.

Previously, USCIS’s practice was to warn failed applicants or petitioners that if they no longer held valid status when their requests were denied, they should leave the country as soon as possible, allowing for orderly and generally reliable departures among those who were here only temporarily in the first place and who maintained strong ties to their home countries and could easily return to pick up the thread of their former lives.  If those same people now leave the United States after an NTA is filed with EOIR, resulting in their not appearing at a court hearing, they will be issued removal orders in absentia and face 5-year bars to returning to the United States in any status.  In addition, those who are in removal proceedings cannot work legally, and many could be detained for weeks pending their bond hearings.

The new NTA memo has been hugely controversial, with many believing it converts USCIS, which was established by Congress as an immigration benefits agency, into largely an enforcement arm of the executive branch, without congressional authority to do so.  On July 30, 2018, USCIS postponed implementation of the policy memo, citing a delay in “operational guidance” from USCIS components.  No specific new implementation date has been provided.  Please subscribe to our blog for updates.

The USCIS announced today that the FY2019 H-1B cap has been met.  The USCIS will hold a lottery for the H-1B visas as early as next week.  Those selected will receive receipt notices in the mail; those rejected will have their filings returned, along with the filing fee checks.   We expect that the receipt notices for those selected will begin to trickle in later this month through most of May; the rejected petitions will take longer to return.  The USCIS has not yet released the number of petitions it received.  Please check back for updates.

If 2017 is any indication, the new year will bring a fresh cascade of changes – both announced and unannounced, anticipated and unanticipated – in the business immigration landscape.  Few, if any, of these changes are expected to be good news for U.S. businesses and the foreign workers they employ.

In 2017, while much of the news media focused on the Trump Administration’s draconian changes to practices and policies that affected the undocumented – including ending the DACA Dreamer program, shutting down Temporary Protected Status for citizens of countries ravished by war and natural disaster, and aggressively enforcing at the southern border and in “sensitive” locations such as churches, courthouses, and homeless shelters – relatively less attention has been paid to the steady, incremental erosion of rights and options for legal immigrants, particularly those who are sponsored for work by U.S. employers, under the Administration’s April 2017 “Buy American / Hire American” executive order.  There is no doubt that such restrictions to the legal immigration system will continue to cause business uncertainty and disruption in 2018.  Here’s what to expect:

Continue Reading Buckle Your Seatbelts: 2018 Will Be a Watershed Year in Business Immigration

Following reports that DHS rejected 4,000 timely-filed DACA renewal applications for being late due to USPS delays, DHS Secretary Elaine Dukes directed the USCIS to accept the applications, provided that the resubmissions include “individualized proof” that the applications were originally mailed in a timely matter and that the delivery delay was because of USPS error.  Secretary Dukes did not define what constitutes proof of timely filing; however, those who do not have such documentation can contact USPS to review their cases.  USPS will provide applicants with letters to submit to USCIS with the resubmissions, if appropriate.

USCIS also discovered that it rejected some timely-filed applications in error, and will reach out to those applicants to advise them to resubmit their applications.  Those not contacted by the USCIS who believe their applications were erroneously rejected may also resubmit their applications with proof that their applications were received timely at the designated filing location.

Although no official statement has been issued, the United States Citizenship and Immigration Services (“USCIS”) announced during a call with the American Immigration Lawyers Association’s Service Center Operations Liaison Committee that it expects to resume premium processing for all H-1B cases on or before October 3, 2017.   We will update this post as soon as USCIS makes an official announcement.

March 2017 brought us a surprising suspension of the Premium Processing option for all H-1B petitions received by the USCIS on or after Monday, April 3, 2017, which led to an overwhelming number of H-1B extension filings in a short period of time.  The USCIS was unable to process most of the cases within the 15-day period, leading to the return/refund the $1,225 filing fees.  April 2017 brought us the H-1B cap petition lottery that, once again, demonstrated a high demand for H-1B visas by US companies.  In addition, while these events were taking place, the President and members of his administration continued to spread negative messages about the H-1B program and its future.  In light of these events, we report the following:

  • H-1B petitions not selected in the lottery in April have started to arrive in the mail.  While the USCIS should return the rejected petitions to the attorneys of record, some clients have reported receiving the rejected filings directly from the USCIS.  Those filings should be forwarded to the attorneys so that the filing fee checks can be properly credited, and so that support documents can be maintained and reused next year.
  • Attorneys are reporting an increase in requests for evidence (RFEs) for some H-1B positions relying on Level 1 prevailing wages, especially in the computer industry.
  • Due to the large number of H-1B cap cases, extension petitions, and amended petitions, the USCIS has been moving H-1B filings to other USCIS Service Centers for adjudication assistance.  This should help decrease processing times.
  • Hot off the Presses:  During the USCIS Ombudsman’s Teleconference on H-1B Petition Processing on 6/20/2017, representatives from that office indicated that Premium Processing would be reinstated “on an incremental basis”, but have not explained how this will work or when it will begin.  They are being cautious given the rush of Premium Processing cases it received in March that exceeded processing capacity.

We will continue to provide updates on these and any other issues affecting the H-1B visa program, including any proposed legislation or policy changes.

The Trump Administration’s April Executive Order, “Buy American, Hire American,” puts the H-1B visa program under increased scrutiny, but is not likely to have significant, if any, impact on the program for the foreseeable future.
Continue Reading “Hire American, Buy American” Executive Order Not Likely to Change H-1B Landscape Significantly

Not surprisingly, the USCIS announced today that the FY2018 H-1B cap has been met.  The USCIS will hold a lottery for the H-1B visas as early as next week.  Those selected will receive receipt notices in the mail; those rejected will have their filings returned, along with the filing fee checks.   We expect that the receipt notices for those selected will begin to trickle in later this month through most of May; the rejected petitions will take longer to return.  The USCIS has not yet released the number of petitions it received.  Please check back for updates.