The US Citizenship and Immigration Services (USCIS) announced yesterday that it has completed the data entry for all H-1B cap petitions selected in the FY2019 lottery held in April.   Because receipts are mailed on a rolling basis as the data entry for each selected petition is completed, it is still possible that additional receipts for petitions selected in the lottery will arrive later this week.

 The USCIS will now begin the process of returning to the attorneys of record those petitions that were not selected in the lottery.  In past years, the return process lasted into July.

In a policy memorandum dated May 10, 2018, the United States Citizenship and Immigration and Services (“USCIS”) provided new guidance to its officers and adjudicators on calculating unlawful presence for nonimmigrants in F, M, and J status. This policy memorandum, which becomes effective on August 9, 2018, represents a dramatic shift in long-standing USCIS policy.

The date unlawful status begins to accrue is extremely important as this date is a linchpin in determining when the 3-year and 10-year bars of reentry may apply.  Generally, unlawful status for more than 180 days, but less than 1 year, triggers a 3 year bar of reentry, while unlawful status for more than 1 year triggers a 10 year bar. Waivers of the bars may be available if certain requirements are met, including in some cases extreme hardship to a U.S. or permanent resident spouse or parent.

The new policy specifies that F, M, or J nonimmigrants who failed to maintain their status (for example by no longer pursuing a full-course of study, no longer engaging in an approved training program or activity, or engaging in unauthorized employment) before August 9, 2018, will start accruing unlawful status on August 9, 2018, unless the nonimmigrant already starting accruing unlawful status on the earliest of the following:

  • The day after a Department of Homeland Security (DHS) denial of an immigration benefit, if DHS determines that the nonimmigrant violated his or her nonimmigrant status while adjudicating that immigration benefit;
  • The day after the nonimmigrant’s Form I-94 expires, if the F, M, J nonimmigrant was admitted until a certain date; or
  • The day after an immigration judge or the Board of Immigration Appeals ordered the nonimmigrant excluded, deported, or removed (whether or not the decision is appealed).

F, M, or J nonimmigrants who fail to maintain their nonimmigrant status on or after August 9, 2018, begin accruing unlawful presence on the earliest of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period);
  • The day after Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge or the Board of Immigration Appeals orders the alien excluded, deported, or removed (whether or not the decision is appealed).

The new policy is a dramatic change in how USCIS previously calculated unlawful presence.  Under the prior policy, unlawful presence for those in admitted F, M,  or J status for the duration of their status (D/S) started accruing only on the day after:

  • USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit; or
  • An immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision is appealed), whichever came first.

F, M, or J nonimmigrants who were admitted until a specific date, instead of D/S, accrued unlawful presence only on the day after:

  • Their Form I-94 expired;
  • USCIS formally found a nonimmigrant status violation while adjudicating a request for another immigration benefit; or
  • An immigration judge ordered the applicant excluded, deported, or removed (whether or not the decision was appealed), whichever came first.

This new policy also affects the immigration status of dependent family members as the validity of their status is dependent on the principal maintaining his or her status.

To review the text of USCIS’ new policy memorandum, please click here.

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

  • China: EB-1 holds steady at January 1, 2012, EB-2 stalls at September 1, 2014, and EB-3 remains June 1, 2015
  • India: EB-1 remains backlogged to January 1, 2012, EB-2 creeps ahead four days to December 26, 2008, and EB-3 remains May 1, 2008
  • Philippines: EB-2 remains current, while EB-3 remains January 1, 2017
  • All Other Countries: All EB categories are current

NOTE: USCIS has not yet announced if it will accept I-485 applications in June 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.

The Department of Homeland Security (DHS) announced that because the conditions in Honduras no longer support its designation for Temporary Protected Status (TPS), the designation set to expire on July 15, 2018, will terminate on January 5, 2020.  This conclusion is at odds with the State Department travel advisory, which says that travelers should reconsider travel to Honduras due to violent crime (murder, assault, rape, armed robbery, gang activity, etc.).  The travel advisory can be found here.

TPS allows qualifying persons inside the United States to remain and work lawfully until conditions in their home countries improve following civil war, natural disaster or similar extraordinary situations.  The final period of designation gives those unable to acquire another legal status time to prepare to depart the United States by the TPS termination date.

DHS has not yet provided details for nationals of Honduras holding TPS status to re-register to extend their status through the designation end date of January 5, 2020.   When those instructions are issued, the employment authorization documents held by qualifying individuals already set to expire on July 15, 2018, will likely be automatically extended for six months, providing applicants time to apply for new employment authorization documents valid through the termination date.

The United States Citizenship and Immigration Services (“USCIS”) has reported receiving 190,098 cap subject H-1B petitions during the first five business days of April 2018, more than twice the number mandated by Congress’ cap of 65,000 under the regular H-1B cap and 20,000 under the advanced degree cap for each fiscal year.

On April 11, USCIS completed a computer generated and random lottery to select the 20,000 advanced degree cap petitions it will process for the 2019 fiscal year. Those not selected in this lottery, were included in a second lottery conducted to select the 65,000 regular H-1B cap petitions that USCIS will process.

We expect to start receiving H-1B receipt notices for petitions selected in the lottery within the next two weeks and that they will continue to trickle in through the month of June, as in previous years.

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 backlogged to January 1, 2012, EB-2 creeps forward one month to September 1, 2014, and EB-3 freezes at June 1, 2015
  • India: EB-1 remains backlogged to January 1, 2012, EB-2 remains at December 22, 2008, and EB-3 advances three months to May 1, 2008
  • Philippines: EB-2 remains current, while EB-3 stalls at January 1,2017
  • All Other Countries: All EB categories are current

NOTE: USCIS has not yet announced if it will accept I-485 applications in May 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.

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.

The US Citizenship & Immigration Services (USCIS) has just announced that it will temporarily suspend premium processing service for H-1B Cap petitions for Fiscal Year 2019.  The suspension is expected to remain in effect until September 10, 2018.  Once the suspension is lifted, pending H-1B Cap petitions can be upgraded to premium processing service, if desired.  Other H-1B petition types, including petitions to amend or extend H-1B status, or to change employers, are not impacted at this time.  The official announcement can be seen here. We will continue to monitor these developments and will post updates as new information becomes available.

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 retrogresses to January 1, 2012, EB-2 advances eight months to August 1, 2014, and EB-3 leaps ahead six months to June 1, 2015
  • India: EB-1 reverts to January 1, 2012, EB-2 creeps forward another week to December 22, 2008, and EB-3 jumps forward more than a year to February 1, 2008
  • Philippines: EB-2 remains current and EB-3 advances seven months to January 1,2017
  • All Other Countries: All EB categories are current

NOTE: USCIS has not yet announced if it will accept I-485 applications in April 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.

In a February 28, 2018, status update filing with the U.S. Court of Appeals for the District of Columbia in the matter of Save Jobs USA v. United States Department of Homeland Security, the Department of Homeland Security (“DHS”) stated its inability to issue a Notice of Proposed Rulemaking (“NPRM”)  on the rescission of H-4 EADs by its initial intended timeframe of February 2018.  DHS now expects to issue the NPRM in time for publication in June 2018.

DHS explained that after review of the draft proposal by the United States Citizenship and Immigration Services, a determination was made that significant revisions were required, including requiring a new economic analysis, which could take several weeks to complete. In this status update, DHS reiterated that its intention to publish an H-4 EAD NPRM remains unchanged.

How the rule will immediately affect employers who employ H-4 EAD workers still remains unclear.  DHS may either cancel valid H-4 EADs, render H-4 EADs invalid on a certain date, or prohibit the renewal of H-4  EADs.  Therefore, employers should seek immigration counsel as soon as possible to mitigate any risks from the expected removal of H-4 individuals, who are currently employment eligible, from the class of employment-authorized nonimmigrants.