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.

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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

December 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	08SEP15	C	22MAY09	C	C
3rd	C	01DEC15	C	01JAN10	C	01AUG17
Other Workers	C	01JUN08	C	01JAN10	C	01AUG17
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

Top 10 Countries with F-1 Students – ICE Data 2017

• CHINA 481,106
• INDIA 249,763
• SOUTH KOREA 95,701
• SAUDI ARABIA 72,358
• JAPAN 41,862
• CANADA 41,527
• VIETNAM 38,144
• BRAZIL 34,171
• TAIWAN 32,545
• MEXICO 25,842

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

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).