November 2018 Visa Bulletin – Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	El SALVADOR GUATEMALA HONDURAS	INDIA	MEXICO	PHILIPPINES
1st	01JUN18	01OCT17	01JUN18	01OCT17	01JUN18	01JUN18
2nd	C	15JUN15	C	22MAY09	C	C
3rd	C	08AUG15	C	01OCT09	C	01JUL17
Other Workers	C	01JUN08	C	01OCT09	C	01JUL17
4th	C	C	01MAY16	C	C	C
Certain Religious Workers	C	C	01MAY16	C	C	C
5th Non-Regional Center (C5 and T5)	C	01OCT14	C	C	C	C
5th Regional Center (I5 and R5)	C	01OCT14	C	C	C	C

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F-1 Students; Cap-Gap Extension; Unlawful Presence

F-1 visa-holding students who are currently in cap-gap status are not authorized to work beyond September 30, 2018.

Cap-Gap Explained: The immigration law allows an F-1 student who is the beneficiary of a timely filed H-1B cap-subject petition requesting a change of status to H-1B on Oct. 1, to have his or her F-1 status and any current employment authorization extended through Sept. 30. This is known as “cap-gap”,  i.e. the law provides a way of filling the “gap” between the end of F-1 status and the beginning of H-1B status that might otherwise occur. The “cap-gap” period starts when an F-1 student’s status and work authorization expire, and they are extended through Sept. 30, with Oct. 1 being the requested start date of their H-1B employment, unless otherwise terminated or the H-1B petition is rejected or denied prior to Oct. 1.

What happens on or after October 1:  If an F-1 student availed cap-gap extension to stay and work in the U.S. until September 30 and such F-1 student’s H-1B change of status petition remains pending adjudication as of October 1, 2018 and continues to be so, then:

• Such F-1 student must cease employment on October 1 (working on or after Oct 1 results in accrual of unlawful presence subjecting the F-1 to potentially be removed from U.S.);
• Such F-1 student may however remain in the U.S. until the H-1B petition is adjudicated (approved, rejected or denied)

Employers currently employing F-1 students in cap-gap situation should notify such F-1 student-employees of the foregoing situation ideally in writing and remove such employees off the payroll and not allow them to work.  Be sure to clearly explain that the student may remain in U.S. until the H-1B is adjudicated.  The above cap-gap rule does not apply to F-1 students holding valid Optional Practical Training (OPT) work authorization (initial OPT or STEM OPT) which is valid beyond October 1 and it does not apply to F-1 students who are work-authorized pursuant to Curricular Practical Training (CPT).

Denial without an RFE or NOID (Currently in Effect)

Recently, the U.S. Citizenship and Immigration Services (USCIS) guidance pertaining to denial of certain petitions or applications without first issuing an RFE (Request for Evidence) or NOID (Notice of Intent to Deny) went into effect.  It became effective on September 11, 2018.

What is the guidance about:    The guidance empowers USCIS adjudicators with the discretion (total free will) to deny an application, petition, or request without first issuing an RFE or NOID if initial evidence is not submitted or if the evidence in the record does not establish eligibility.

When and what type of cases is it applicable: Starting September 11 when the policy went into effect, the USCIS adjudicators now have complete discretion to deny cases without issuing an RFE or a NOID first. This includes any filing in which the applicant, petitioner, or requestor has no legal basis for the benefit/request sought or submits a request for an immigration benefit or relief under a program that has been terminated.  Moreover, if all required initial evidence is not submitted with the petition or application, USCIS in its discretion may deny for failure to establish eligibility based on lack of required initial evidence.  What is considered “required” can be very subjective and arbitrary in interpretation of adjudicators.  Types of cases include pretty much all immigration benefits – H-1B, H-4, L-1/L-2, green card cases, family based cases, waiver applications etc.

What are the documentary examples of initial evidence in the context of H-1B:  USCIS has recently provided examples of what it regards as initial evidence to be filed with a H-1B petition:

• Evidence the beneficiary maintained status if seeking a change of status or extension of stay
• Evidence showing the proposed employment qualifies as a specialty occupation
• Evidence showing the beneficiary is qualified to perform the specialty occupation
• A copy of any required license or other official permission for the beneficiary to perform the specialty occupation in the state of intended employment (if applicable)
• A copy of any written contract between the employer and the beneficiary or a summary of the terms of the oral agreement under which the beneficiary will be employed.
• An itinerary showing the date and places of assignment if the petition indicates that the beneficiary will be providing services at more than one location.
• A corresponding Labor Condition Application (LCA) that has been certified by the Department of Labor (DOL) and signed by the petitioner and attorney/representative, if applicable.

What you can do to potentially avoid a denial without an RFE/NOID:  In addition to the above, for the past several years, our office has been providing clients with and using a comprehensive list of documents as a guide in H-1B filings.  This has helped us get overwhelmingly positive results in our filings for many years.

It is highly imperative to note that the process has become quite arbitrary leaving to each USCIS adjudicator the decision/discretion to approve or deny a case with the evidence submitted.  For instance, if a H-1B petition is filed without an end client letter in a client site placement situation (we believe this piece of document is extremely critical), one adjudicator may not consider this as part of initial evidence and may issue an RFE or an NOID while another adjudicator may simply decide to deny the case for failing to prove proper corporate relationship/proof of placement at the end client.  Thus, this highly arbitrary and subjective process will further complicate matters for H-1B employers.  Please consider providing as much information and documents as possible with each filing.

October 2018 Visa Bulletin – Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	El SALVADOR GUATEMALA HONDURAS	INDIA	MEXICO	PHILIPPINES
1st	01JUN18	01OCT17	01JUN18	01OCT17	01JUN18	01JUN18
2nd	C	15JUN15	C	22MAY09	C	C
3rd	C	08AUG15	C	01OCT09	C	01JUL17
Other Workers	C	01JUN08	C	01OCT09	C	01JUL17
4th	C	C	01MAY16	C	C	C
Certain Religious Workers	C	C	01MAY16	C	C	C
5th Non-Regional Center (C5 and T5)	C	01OCT14	C	C	C	C
5th Regional Center (I5 and R5)	C	01OCT14	C	C	C	C

February 2018 Visa Bulletin – Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

Final Action Dates for Employment-Based Adjustment of Status Applications:

Employment- Based	All Chargeability Areas Except Those Listed	CHINA- mainland born	El SALVADOR GUATEMALA HONDURAS	INDIA	MEXICO	Philippines
1st	C	C	C	C	C	C
2nd	C	01OCT13	C	08DEC08	C	C
3rd	C	15SEP14	C	01DEC06	C	01MAR16
Other Workers	C	01FEB07	C	01DEC06	C	01MAR16
4th	C	C	01DEC15	C	22JUN16	C
Certain Religious Workers	U	U	U	U	U	U
5th Non-Regional Center (C5 and T5)	C	22JUL14	C	C	C	C
5th Regional Center (I5 and R5)	U	U	U	U	U	U

 

Updated USCIS Form I-765 to allow for EAD and Social Security Number Request Simultaneously

Foreign nationals in certain categories or classifications can now apply for work authorization and a social security number using an updated Form I-765, Application for Employment Authorization.  To lawfully work in the United States, foreign workers in some categories and classifications need both an employment authorization document (EAD) from USCIS, and a Social Security number (SSN) from the SSA.

Previously, applicants needed to submit a Form I-765 to USCIS for an EAD, and then submit additional paperwork in-person at their local Social Security office to obtain an SSN.  The revised USCIS Form I-765 includes additional questions that allow applicants to apply for an SSN or replacement card without visiting a Social Security office.

Beginning October 2, 2017, USCIS started transmitting the additional data collected on the form to the SSA for processing.  Moving forward, applicants who receive
their approved EADs from USCIS should receive their Social Security card from SSA within the following two weeks.  It is imperative to note that starting December 4, 2017, USCIS will only accept the 7/17/17 edition of Form I-765.

October 2017 Visa Bulletin – Employment-Based Visa Numbers – Eligibility to File Adjustment of Status Applications

Employ- ment based	All Charge- ability Areas Except Those Listed	CHINA- mainland born	EL SALVADOR GUATEMALA HONDURAS	INDIA	MEXICO	PHILIPPINES
1st	C	C	C	C	C	C
2nd	C	22MAY13	C	15SEP08	C	C
3rd	C	01JAN14	C	15OCT06	C	01DEC15
Other Workers	C	01JAN06	C	15OCT06	C	01DEC15
4th	C	C	01NOV15	C	01MAR16	C
Certain Religious Workers	C	C	01NOV15	C	01MAR16	C
5th Non-Regional Center (C5 and T5)	C	22JUN14	C	C	C	C
5th Regional Center (I5 and R5)	C	22JUN14	C	C	C	C