Today, USCIS announced it has completed the H-1B cap FY 2019 random selection process on April 11. This year, USCIS received a total of 190,098 H-1B cap petitions during the H-1B cap FY 2019 filing period, which started on April 2.  The announcement means USCIS has completed the computer generated random selection process and selected enough petitions to meet the 65,000 regular cap and the 20,000 cap under the U.S. advanced degree exemption, known as the master’s cap. Next, USCIS will reject and return all unselected H-1B cap petitions with their filing fees.

As a reminder, USCIS will continue to accept and process petitions that are otherwise exempt from the cap.

 

Yesterday, U.S. Citizenship and Immigration Services (USCIS) announced the launch of a new and expanded E-Verify website, E-Verify.gov.  The website, which is in both the English and Spanish languages, includes sections for Employers, Employees, About E-Verify and myE-Verify.   E-Verify is a web-based system that allows enrolled employers to confirm the eligibility of their employees to work in the United States. E-Verify employers can verify the identity and employment eligibility of newly hired employees by electronically matching the information provided by their employees on the Form I-9, Employment Eligibility Verification, against records available to the Social Security Administration (SSA) and the Department of Homeland Security (DHS). On the website, employers will find information on Using an E-Verify Employer Agent, For Federal Contractors, Web Services, Enrolling in E-Verify, Verification Process and Monitoring & Compliance.  Employees can find specific information on E-Verify Overview, Tentative Nonconfirmation (TNC), Employee Email Notifications, Employee Rights and Responsibilities, Correct Your Immigration Record and Reporting Violations.  E-Verify is free and all employers and employees should explore and be familiar with this system since USCIS is encouraging all employers to enroll.  The attorneys at Fox Rothschild are available to assist both businesses and employees alike with any questions regarding the E-Verify system.

The EB-5 Program has been extended for six months, through September 30, 2018, as part of the omnibus spending bill funding the federal government. Congress passed the spending bill early Friday morning and President Trump signed the bill today. The extension of the EB-5 Program does not include any of the controversial reforms.  Potential reforms include increasing the minimum investment amount, creating additional safeguards, and instituting a visa set-aside for rural projects.

I invite you to read my May 2017 article published by Law360 explaining some of the reforms being discussed. Without the omnibus bill, there would have been a government shutdown and the EB-5 Program would have expired. We will be closely following industry dialogue and activity on Capitol Hill surrounding EB-5 reform and/or extension efforts in the coming months.

Today, United States Citizenship and Immigration Services (USCIS) announced the temporary suspension of premium processing for all FY 2019 cap-subject petitions. USCIS expects this suspension to last until Sept. 10, 2018. During this time, USCIS will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap.

On March 6, 2018, the US Department of State announced a change in the location of certain greencard interviews in India.

In summary, for interviews scheduled on or after April 1, 2018:

  • The US Embassy in New Delhi will no longer conduct interviews for US Permanent Residence for the spouse (IR1/CR1) and the unmarried minor child(ren) (IR2/CR2) of a US citizen
  • The US Consulate General in Mumbai will begin conducting interviews for US Permanent Residence for the spouse and the unmarried minor child(ren) of a US citizen.

The change includes cases already in process and going forward. The National Visa Center will notify applicants of the specific location of their interview, along with details relating to visa interview preparation.

This change is for the purpose of consolidating visa processing of this type in Mumbai.

Recently, United States Citizenship and Immigration Services (USCIS) changed the language in the agency’s Mission Statement.    Previous language recognized that the United States is a “nation of immigrants”.   USCIS Director L. Francis Cissna provided a statement to explain the reasoning behind the change.

New Mission Statement:
U.S. Citizenship and Immigration Services administers the nation’s lawful immigration system, safeguarding its integrity and promise by efficiently and fairly adjudicating requests for immigration benefits while protecting Americans, securing the homeland, and honoring our values.

Old Mission Statement:
USCIS secures America’s promise as a nation of immigrants by providing accurate and useful information to our customers, granting immigration and citizenship benefits, promoting an awareness and understanding of citizenship, and ensuring the integrity of our immigration system.

However, immigration advocates see this change as further demonstration that this administration does not recognize the importance of immigration to the history and growth of this nation.  By ending DACA, restricting Refugees and ending TPS designations for El Salvador, Haiti and Honduras among other actions, this administration appears on a pathway to make more changes to the U.S. immigration landscape than any recent administration.  The language of the Statue of Liberty from Emma Lazarus’ poem The New Colossus so eloquently reads:

“Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!”

It does not appear that USCIS’ change in Mission Statement adheres to this vision of America nor our long history of welcoming immigrants and their significant contributions.

Last evening, President Trump delivered his State of the Union Address, which touched on many aspects of immigration.  The President’s plan consists of four pillars, summarized below:

1.)  Path to Citizenship for 1.8 million “illegal” immigrants (often referred to as Dreamers) who were brought here by their parents at a young age.  President Trump claimed that this number covers almost three times more people than the previous administration (under Deferred Action for Childhood Arrivals (DACA)). Under the Trump plan, those who meet education and work requirements, and show good moral character, will be able to become full citizens of the United States.    President Trump did not indicate any specific details how this plan would be enacted but he has made past comments that the path to citizenship would take over a decade.

2)  Building of the border wall with Mexico, hiring more federal agents and ending “catch and release” which the President called dangerous.   President Trump’s plan to end “catch and release” would require much more bed space to hold detained immigrants and doesn’t acknowledge the fact that those who are released are non-violent individuals with terms of release, much like the criminal probation/bond system.

3)  Ending the visa lottery.  President Trump claimed that the program randomly hands out green cards without any regard for skill, merit, or the safety of our people. He indicated that a merit-based immigration system should be adopted.  President Trump indicated that this merit based system would admit people who are skilled, who want to work, who will contribute to our society, and who will love and respect our country.  President Trump’s language suggests that those who enter on visa lottery do not meet these characteristics, which is contrary to the program’s purpose of creating diversity.

4) Ending what the President calls “chain migration”. President Trump claimed that a single immigrant can bring in virtually unlimited numbers of distant relatives. His plan would limit sponsorships to spouses and minor children.  This term which many people consider derogatory would end U.S. Citizens and Lawful Permanent Residents being able to re-unite with family members and would do away with sponsorships for parents of U.S. Citizens, siblings of U.S. Citizens, among others.  President Trump also does not indicate the long wait times associated with visa availability which often make it difficult to sponsor family members.

Should a person have questions regarding how the pillars may impact their case or sponsorships for family members, now would be the time to contact an immigration lawyer to discuss the person’s eligibility to file the appropriate applications.

 

 

 

Congressional negotiations on a federal spending bill remain very active. To avoid a federal government shutdown, a decision or a short-term continuing resolution (CR) to fund the government at current levels must be reached by Friday, January 19, 2017. Until a deal is made or a CR is passed, the threat of a shutdown remains a possibility. Generally, if the government shuts for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work.

Such a shutdown will impact immigration services across a number of different government agencies, affecting many of the systems and processes employers rely on to facilitate employment, including E-Verify, visa petition processing, labor certifications and other government services that corporations and individuals rely upon.

We will closely monitor the circumstances and provide updates as they become available. Individuals with pending applications or who are planning to travel abroad to secure a visa should consult with their Fox Rothschild immigration attorney, prior to travel.

E-Verify

E-Verify, the Internet-based system that allows employers to determine the eligibility of prospective employees to work in the United States, would be unavailable during a shutdown. Although employers must still complete the Form I-9 on a timely basis, in the past, U.S. Department of Homeland Security has suspended E-Verify’s 3-day rule and extended the time for responding to Tentative Non-Confirmations. Federal contractors are recommended to contact their contracting officers to confirm time frames.

U.S. Citizenship and Immigration Services

As a fee-based agency, U.S. Citizenship and Immigration Services (USCIS) will continue to process applications and petitions for immigration benefits during the shutdown; however, processing delays are likely, as a certain portion of the staff will be furloughed. Further, delays may occur if adjudication of a petition/application is dependent on support from nonessential government functions that are suspended during the shutdown—for example, if a petition requires a certified Labor Condition Application (LCA) from the Department of Labor (DOL).

In the past, USCIS has relaxed its rules and accepted H-1B filings without certified LCAs when DOL operations have been suspended or delayed, however, USCIS has not yet announced whether it will do so during the current shutdown.

Department of Labor

The Department of Labor (DOL) will suspend all immigration-related functions during a shutdown, affecting PERM Labor Certifications and Labor Condition Applications. Filed and pending applications will not be processed, nor will filings be accepted during a shutdown.

U.S. Customs and Border Protection

The majority of the Department of Homeland Security’s U.S. Customs and Border Protection’s (CBP’s) employees are expected to stay on the job at the borders and ports of entry. CBP is deemed an essential function and will likely continue operations at near normal capacity, including the adjudication of applications/petitions for TN and L-1 status that are normally processed at the border.

The Department of State

In the past, The Department of State’s (DOS’s) consular operations have remained operational, although services may be limited. It is expected that U.S. Consulates abroad will continue to process visa applications as long as funds are available. This funding is expected to last only for a few days, at which point the State Department will likely cease processing visas and focus solely on diplomatic services and emergency services for American citizens.

The Bureau of Consular Affairs/Passport Office U.S. Passports

The Bureau of Consular Affairs is a fee-based agency; therefore, the Passport Office should continue to operate normally during a shutdown. However, some those passport offices that are located in federal buildings, which themselves may have to shut down, restricting access to those passport offices.

Social Security Administration

While The Social Security Administration (SSA) is expected to remain open during a shutdown, it will not accept or processing Social Security Number (SSN) applications. Although an employee may begin work without a social security number, the lack of an SSN could affect the individual’s ability to secure a U.S. driver’s license, open a bank account, secure credit or obtain other benefits.

State Department of Motor Vehicle Agencies

Although driver’s license and state identification cards are issued by state governments, applications by foreign nationals could be delayed during the shutdown because local agencies must access a federal database to verify the foreign national’s immigration status before it may issue a driver’s license or identification card. This database, known as SAVE, could be suspended during a shutdown.

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Morristown, New Jersey office though she practices throughout the United States and at Consulates worldwide. You can reach Alka at (973) 994-7800, or abahal@foxrothschild.com.

U.S. PassportFox partner Matthew D. Lee has published a client alert warning that individuals who owe more than $51,000 in back taxes are now at risk of losing their U.S. passports. This has arisen under a new law requiring the Internal Revenue Service to notify the State Department of taxpayers with “seriously delinquent tax debts.”

This month the IRS will begin the process of certifying delinquent taxpayers to the State Department, which is required by law to deny passport applications or renewals filed by such individuals, and in some instances revoke existing passports. The IRS estimates that 270,000 individuals currently meet the criteria for certification to the State Department, and expects to certify an initial group this month, with additional certifications to follow weekly throughout 2018.

At-risk individuals concerned about losing their passports must take immediate steps to address their outstanding tax liabilities, by either paying such debt in full or seeking to negotiate a collection alternative such as an installment agreement or offer-in-compromise.

You can read Matt’s full Alert on the Fox Rothschild website.

On January 9, 2018, U.S. District Judge William Alsup of the Northern District of California granted an injunction that resulted in provisional relief for current DACA recipients by allowing them to renew their DACA benefits which include employment authorization and deferred action from removal. USCIS recently posted on its website that due to the federal court order, the agency has resumed accepting requests to renew a grant of deferred action under DACA. USCIS indicates that as of now, the DACA policy will be operated on the terms in place before it was rescinded on September 5, 2017.

Individuals previously granted deferred action under DACA may file for renewal. USCIS is not accepting requests from individuals who were never granted DACA before. USCIS also announced that the government will not accept or approve advance parole requests from DACA recipients.

In the FAQ previously generated by USCIS, applicants were strongly encouraged to file a renewal request within the recommended 150-120 day filing period. Many individuals have already entered this period and were previously unable to file the renewal based on the September 5, 2017 rescission. USCIS indicates in this guidance that requests received sooner than 150 days in advance will be accepted, however, this may cause less time for an extension.

If your DACA is up for renewal, an application must be filed promptly. Given the concern over whether additional court action will result in DACA being rescinded again, consideration should be made to file an application for renewal pre-emptively based on USCIS guidance for renewal. If your status runs out in more than 150 days it would be worth discussing renewal with an immigration attorney.

UPDATE: The Department of Justice has appealed the decision.  Keep posted for further information.