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 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 Department of Homeland Security (“DHS”) announced today that the final rule amending DHS regulations governing H-1B cap-subject petitions will be published in the Federal Register on January 31, 2019, and will become effective on April 1, 2019.

The new rule implements the electronic registration requirement, but suspends it for the FY2020 H-1B cap season. The rule also reverses the order in which the United States Citizenship and Immigration Services (“USCIS”) will select cap subject H-1B petitions.  USCIS will first select, in a random lottery, a sufficient number of H‑1B registrations (or petitions when the registration requirement is suspended) submitted on behalf of all beneficiaries, including those eligible for the advanced degree exemption, to meet the H-1B cap.  USCIS will then select from the remaining registrations (or petitions), also in a random lottery, a sufficient number of H-1B petitions to meet the advanced degree exemption.

For a more detailed discussion on how this new rule changes the selection process for H-1B cap-subject petitions, please see our prior post.

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.

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.

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.

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.

As negotiations in Congress continue towards resolving the shutdown of the federal government, individuals and companies that interact with the various federal agencies that administer immigration programs are naturally wondering how they might be affected. US Citizenship and Immigration Services (USCIS) typically provides clear information about the impact of a government shutdown on its operations. For other agencies, we can only look to prior shutdowns in 2011 and 2013 to understand what to expect.

As a general matter, only “essential” employees will continue to work until funding is restored. The following is what we anticipate with respect to the various agencies Hunton & Williams deals with on behalf of our clients:

Continue Reading How Will the Government Shutdown Impact Immigration? It Depends on the Federal Agency and Program Involved

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