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

September 26, 2019 Leave a comment

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

May 14, 2019 Leave a comment

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.

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

January 30, 2019 Leave a comment

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.

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

October 11, 2018 Leave a comment

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)

October 11, 2018 Leave a comment

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

October 4, 2017 Leave a comment
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

USCIS Announces Further Measures to Detect H-1B Visa Fraud and Abuse

April 6, 2017 Leave a comment
On April 3, 2017, the U.S. Citizenship and Immigration Services (USCIS) announced multiple measures to further deter and detect H-1B visa fraud and abuse.  The press release states that the H-1B visa program should help U.S. companies recruit highly-skilled foreign nationals when there is a shortage of qualified workers in the country. Yet, too many American workers who are as qualified, willing, and deserving to work in these fields have been ignored or unfairly disadvantaged. Protecting American workers by combating fraud in our employment-based immigration programs is a priority for USCIS.

Beginning April 3, 2017, USCIS will take a more targeted approach when making site visits across the country to H-1B petitioners and the worksites of H-1B employees. USCIS will focus on:

  • Cases where USCIS cannot validate the employer’s basic business information through commercially available data;
  • H-1B-dependent employers (those who have a high ratio of H-1B workers as compared to U.S. workers, as defined by statute); and
  • Employers petitioning for H-1B workers who work off-site at another company or organization’s location.

The press release further states that targeted site visits will allow USCIS to focus resources where fraud and abuse of the H-1B program may be more likely to occur, and determine whether H-1B dependent employers are evading their obligation to make a good faith effort to recruit U.S. workers.  USCIS will continue random and unannounced visits nationwide. The press release states that these site visits are not meant to target nonimmigrant employees for any kind of criminal or administrative action but rather to identify employers who are abusing the system.

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