October 2019 Visa Bulletin – Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

For Employment-Based Preference Filings:
You must use the Dates for Filing chart in the Department of State Visa Bulletin for October 2019.

Employment- based	All Chargeability Areas Except Those Listed	CHINA- mainland born	EL SALVADOR GUATEMALA HONDURAS	INDIA	MEXICO	PHILIPPINES
1st	01JUL19	01SEP17	01JUL19	15MAR17	01JUL19	01JUL19
2nd	C	01AUG16	C	01JUL09	C	C
3rd	C	01MAR17	C	01FEB10	C	C
Other Workers	C	01AUG08	C	01FEB10	C	C
4th	C	C	15AUG16	C	C	C
Certain Religious Workers	C	C	15AUG16	C	C	C
5th Non-Regional Center (C5 and T5)	C	01JAN15	C	C	C	C
5th Regional Center (I5 and R5)	C	01JAN15	C	C	C	C

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ICE Commences On-Site Inspections for STEM OPT Employment

Our office has learned that ICE (http://www.ice.gov) has started to conduct on-site inspections for STEM Optional Practical Training (OPT) employment.  The site visits are aimed to address how the salary of STEM OPT employees is determined, whether there is sufficient structure to provide supervision and training of the employee, and the nature of the employer/employee relationship at any third-party worksites.  According to https://studyinthestates.dhs.gov/: Site visits will be limited to checking information related to student STEM OPT employment and ensuring that students and employers are engaged in work-based learning experiences that are consistent with the information supplied on the student’s Form I-983.

The length of the site visit appears to be about 1-2 hours but it could take up to five hours.  ICE normally gives two days’ notice via email to the STEM OPT employee’s manager/supervisor unless such visit is pursuant to a complaint in which case a notice would be unlikely.  It is important to note that in order to qualify for a STEM OPT extension, the student and the employer must complete Form I-983, providing specific information about the training program and agreeing to notify the Designated School Official (DSO) if there are any material changes to the training program. In addition, the Form I-983 must be regularly updated with the student’s progress in the training program.  However, the I-983 is not included with the application for STEM OPT, and as a result, it is generally not reviewed by USCIS or ICE at all (unless requested by USCIS via a Request for Evidence (RFE).

In light of the inspections, we remind you that employers as well as the students must carefully review the I-983 and instructions, and update it as needed.  Moreover, both the employer and the student should be familiar with the content of the I-983, and be prepared to describe the training opportunity to an ICE officer.  Even without a site visit, compliance is extremely important. The I-983 creates obligations certified by both the student and the employer. Violations could result in termination of student status, or impact future adjudications if USCIS or consular officers note discrepancies between the I-983 and online information or resumes submitted. There are also reports that the USCIS Vermont Service Center has started asking STEM OPT employers to email the I-983 plan as part of I-765 adjudication.  As with any site visit, front-line employees, such as security officers or administrative staff, should ask the ICE officer for a business card, and ask the officer to wait until a designated person at the worksite is called.  The ICE officer may want to tour the worksite, but best practice is to have the officer accompanied by the designated person on site.

 

August 2019 Visa Bulletin – Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

For Employment-Based Preference Filings:
You must use the Final Action Dates chart in the Department of State Visa Bulletin for August 2019.

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	El Salvador Guatemala Honduras	INDIA	MEXICO	PHILIP PINES	VIETNAM
1st	01JUL16	01JUL16	01JUL16	01JAN15	01JUL16	01JUL16	01JUL16
2nd	01JAN17	01JAN17	01JAN17	02MAY09	01JAN17	01JAN17	01JAN17
3rd	01JUL16	01JUL16	01JUL16	01JAN06	01JUL16	01JUL16	01JUL16
Other Workers	01JUL16	22NOV07	01JUL16	01JAN06	01JUL16	01JUL16	01JUL16
4th	C	C	01JUL16	C	01JUL16	C	C
Certain Religious Workers	C	C	01JUL16	C	01JUL16	C	C
5th Non-Regional Center (C5 and T5)	C	15OCT14	C	15OCT14	C	C	15OCT14

Federal Judge Issues Injunction Preventing Enforcement of USCIS’ F,J,M Unlawful Presence Policy

As part of the lawsuit filed by Guilford College and other against Dept of Homeland Security (DHS), a Federal Judge in the U.S. District Court for the Middle District of North Carolina issued a nationwide preliminary injunction on May 3, 2019 preventing the DHS from enforcing the USCIS’ August 8, 2018 policy memo that sought to change how days of unlawful presence are counted following a violation of F, M, or J nonimmigrant status.

The lawsuit filed late last year by Guilford College was supported by several other educational institutions that filed amicus curiae brief (friend of the court) with the Court.  The May 3, 2019 injunction states the following:

“The Court finds that, under the circumstances of this case, the equities and public interest factors weigh in favor of granting injunctive relief. An injunction will prevent the harms outlined above for Plaintiffs, along with similarly situated individuals and institutions across the country. The record does not reflect any countervailing harm to the government in maintaining the status quo by returning, for the duration of this lawsuit, to a policy that it voluntarily followed for over twenty years. “

The May 2019 injunction order by the Court may be found here

Court Order May 2019

The preliminary injunction is a welcome news to thousands of foreign nationals that are currently in the U.S. in F, J, or M status.  We will post any updates on this matter as they become available.

USCIS Clarification on Advance Parole & International Travel

In light of the numerous denials of Advance Parole applications due to international travel by applicants even in possession of a valid Advance Parole, the U.S. Citizenship and Immigration Services (USCIS) recently amended its policy.

Under the revised policy, which came into effect in February 2019, if an applicant files Form I-131, Application for Travel Document, to request an Advance Parole document and departs the United States without possession of an Advance Parole document that is valid for the entire time the applicant is abroad, his or her Form I-131 will be considered abandoned.  At times, an individual may have an approved Advance Parole document while a second one is pending. Individuals may travel on the approved Advance Parole document, provided the document is valid for the entire duration of their time abroad.  The pending Form I-131 will not be considered abandoned in this situation.

H-1B Cap Filings-Electronic Registration; Reversal of Cap Count

The U.S. Citizenship and Immigration Services (USCIS) recently proposed a few changes to the H-1B visa program.  Most notably, introduction of electronic registration requirement for employers in order to file the H-1B cap petitions and the reversal of how cap numbers are counted/allocated.  The proposed regulation which went through a comments period prior to being sent to OMB for review (Office of Management and Budget) has been approved by OMB yesterday.  The USCIS has just released the final regulation today. 

Summary of Changes:

Mandatory Electronic Registration Requirement (but fortunately not for this year):

• USCIS is introducing the electronic registration requirement for employers in order to file H-1B cap-subject petitions on behalf of foreign workers.  The good news is that USCISis suspending the electronic registration requirement for the upcoming FY 2020 (i.e. April 1, 2019 filings) H-1B cap season so as to allow itself to undertake user testing of the electronic registration system and to ensure the system and process are fully functional forFY 2021 (April 1, 2020) H-1B season.  What this means for employers is for this year, the process of filing H-1B cap cases remains the same with no electronic registration requirement, etc. 
• Once the electronic registration takes effect sometime next year, employers who seek to file H-1B cap petitions will need to electronically register as a first step during a designated electronic registration period, unless the registration requirement is temporarily suspended.
• USCIS will announce the start date of the initial registration period on its website for each fiscal year at least 30 days in advance of the opening of the registration period. The registration period will last a minimum of 14 calendar days and will start at least 14 calendar days before the earliest date on which H-1B cap-subject petitions may be filed for a particular fiscal year.
• An H-1B employer (or agent/attorney) must electronically submit a separate registration to file a petition for each foreign worker it seeks to register, and each beneficiary must be named.  Cannot register a petition without the Beneficiary’s full legal name. 
• An employer cannot submit more than one registration for each foreign worker for the given fiscal year. In other words, no duplicate filings and if an employer is found to have been involved in duplicate registrations, all registrations pertaining to that employer for that foreign worker will be invalidated.
• If/when a visa lottery takes place, USCIS will notify via a written notice to the employers whose petitions have been selected to file an H-1B petitions for the named foreign workers in the notice within a given filing period indicated on the notice.  Such employers must submit the petition and support documents, which is at the minimum 90 days per the final regulation.

Reversal of Cap Count Coming this year itself:

Current Process:

The current process of counting cap-subject cases in the instance where H-1B filings hit the cap in the first five business days is that-

• First Step:  The Advanced degree (US Master’s cap) exemption foreign workers (US Master’s of higher) are selected in 20,000 cap; and
• Second Step: Once the Master’s cap cases have been counted, the regular H-1B cap (65,000) cases are selected including any US advanced degree-holder petitions that did not get selected in the US Master’s cap.

Upcoming Change in Process for April 1, 2019:

The proposed change which became part of the final rule starting the upcoming FY 2020 cap season (starting April 1, 2019) will essentially reverse the selection order: 

• First Step: It will count all foreign workers towards the number projected as needed to reach the regular H-1B cap first.
• Second Step: Once a sufficient number of applicants have been selected for the regular H-1B cap, USCIS would then select foreign workers towards the 20,000 US Master’s cap. 

The USCIS predicts that changing the order in which they cases are counted will likely increase (up to 16%) the number of beneficiaries with a U.S. master’s or higher degree.

February 2019 Visa Bulletin – Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

For Employment-Based Preference Filings:
You must use the Final Action Dates chart in the Department of State Visa Bulletin for February 2019.

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	El SALVADOR GUATEMALA HONDURAS	INDIA	MEXICO	PHILIPPINES	VIETNAM
1st	01DEC17	08FEB17	01DEC17	08FEB17	01DEC17	01DEC17	01DEC17
2nd	C	01OCT15	C	06APR09	C	C	C
3rd	C	01JUL15	C	22APR09	C	01AUG17	C
Other Workers	C	01AUG07	C	22APR09	C	01AUG17	C
4th	C	C	01MAR16	C	01SEP17	C	C
Certain Religious Workers	U	U	U	U	U	U	U
5th Non-Regional Center (C5 and T5)	C	01SEP14	C	C	C	C	15JUN16
5th Regional Center (I5 and R5)	U	U	U	U	U	U	U