From the Public Engagement Division of USCIS:  U.S. Citizenship and Immigration Services announced on 12/6/19 the requirement for employers seeking to file H-1B cap-subject petitions, including those eligible for the advanced degree exemption, to first electronically register and pay the associated $10 H-1B registration fee before filing a petition for the fiscal year 2021 H-1B cap.

USCIS will open an initial registration period from March 1 through March 20, 2020.

  • During this initial registration period, prospective petitioners or their authorized representatives must electronically submit a separate registration naming each alien for whom they seek to file an H-1B cap-subject petition.
    • If a sufficient number of registrations are received, we will randomly select the number of registrations projected as needed to reach the H-1B numerical allocations after the initial registration period closes and no later than March 31, 2020.
    • Prospective petitioners with selected registrations will be eligible to file a cap-subject petition only for the alien named in the registration.

Once the H-1B registration system has been implemented, and when registration is required, the agency will not consider a cap-subject petition properly filed unless it is based on a valid registration selection for the same beneficiary, and the appropriate fiscal year. Additionally, although petitioners can register multiple aliens during a single online submission, duplicate registrations for the same beneficiary in the same fiscal year will be discarded.

During the past few months, USCIS conducted usability testing for the H-1B registration system.  We incorporated feedback from those sessions into redesigns of the system.  After completing the current development phase, USCIS will conduct further outreach and training prior to the initial implementation of the registration system to allow the public the opportunity to familiarize themselves with the electronic registration process.  USCIS will provide guidance on how to use the registration system and prepare registrations before opening the registration system for the initial registration period.

DHS intends to publish a notice in the Federal Register in the coming weeks to formally announce implementation of the H-1B registration process.

Please see here for the formal published announcement on USCIS’ website.

Please contact your attorney at Fox Rothschild sooner rather than later if you plan to file an H-1B during next year’s cap season.  As this registration process is entirely new, we recommend planning well in advance to maximize opportunities for success.  Given that there is only a 20 calendar day window for registrations, a  brand new system and procedure, it remains to be seen how the technology will withstand the  anticipated onslaught of applicants.

___________________________

Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  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.

On November 14, 2019, the Department of Homeland Security published a notice of proposed rulemaking in the Federal Register to adjust the U.S. Citizenship and Immigration Services (USCIS) Immigration Examinations Fee Account (IEFA) fee schedule.  The public comment period is open until December 16, 2019.

Unlike most government agencies, USCIS is fee-funded.  According to the USCIS, fees collected and deposited into the IEFA fund nearly 96% of USCIS’ budget.  Federal law requires USCIS to conduct biennial fee reviews and recommend necessary fee adjustments to ensure recovery of the full cost of administering the nation’s immigration laws, adjudicating applications and petitions, and providing the necessary infrastructure to support those activities.

“USCIS is required to examine incoming and outgoing expenditures, just like a business, and make adjustments based on that analysis.  This proposed adjustment in fees would ensure more applicants cover the true cost of their applications and minimizes subsidies from an already over-extended system,” said Ken Cuccinelli, acting director of USCIS.  “Furthermore, the adjudication of immigration applications and petitions requires in-depth screening, incurring costs that must be covered by the agency, and this proposal accounts for our operational needs and better aligns our fee schedule with the costs of processing each request.”

USCIS indicates the proposed fee rule accounts for increased costs to adjudicate immigration benefit requests, detect and deter immigration fraud, and thoroughly vet applicants, petitioners, and beneficiaries and proposes to increase fees by a weighted average increase of 21%.  According to DHS, this is necessary to ensure full cost recovery because the current fee schedule would leave the agency underfunded by approximately $1.3 billion per year.  USCIS last updated its fee structure in FY 2017, by a weighted average increase of 21%.

Also included in the proposed rule are proposals to amend regulations to remove the $30 charge for dishonored payments and to change the 15 calendar days for premium processing to 15 business days.

The public is invited to participate in this rulemaking by submitting written data, views, or arguments on all aspects of this proposed rule. The 30-day public comment period will conclude on 12/16/2019.  After the 30-day comment period, the DHS will address the comments received and publish a final rule in the Federal Register.

Below is a sampling of proposed fee changes from Proposed Rule 84 FR 62280, as published in the Federal Register.

Table 19—Proposed Fees by proposed rule:

U.S. Citizenship and Immigration Services Fee Schedule and Changes to Certain Other Immigration Benefit Request Requirements

Immigration benefit request Current fee Proposed fee Delta ($) Percent change
I-90 Application to Replace Permanent Resident Card $455 $415 −$40 −9%
I-102 Application for Replacement/Initial Nonimmigrant Arrival-Departure Document 445 490 45 10
I-129 Petition for a Nonimmigrant worker 460 N/A N/A N/A
I-129H1 I-129 H-1B—Named Beneficiaries 460 560 100 22
I-129H2A I-129 H-2A—Named Beneficiaries 460 860 400 87
I-129H2B I-129 H-2B—Named Beneficiaries 460 725 265 58
I-129L Petition for L Nonimmigrant Worker 460 815 355 77
I-129O Petition for O Nonimmigrant Worker 460 715 255 55
I-129CW, I-129E&TN, and I-129MISCV Petition for a CNMI-Only Nonimmigrant Transitional Worker; Application for Nonimmigrant Worker: E and TN Classification; and Petition for Nonimmigrant Worker: H-3, P, Q, or R Classification. 460 705 245 53
I-129H2A I-129 H-2A—Unnamed Beneficiaries 460 425 −35 −8
I-129H2B I-129 H-2B—Unnamed Beneficiaries 460 395 −65 −14
I-129F Petition for Alien Fiancé(e) 535 520 −15 −3
I-130 Petition for Alien Relative 535 555 20 4
I-131 Application for Travel Document 575 585 10 2
I-131 Travel Document for an individual age 16 or older 135 145 10 7
I-131 I-131 Refugee Travel Document for a child under the age of 16 105 115 10 10
I-131A Application for Carrier Documentation 575 1,010 435 76
I-140 Immigrant Petition for Alien Worker 700 545 −155 −22
I-191 Application for Relief Under Former Section 212(c) of the Immigration and Nationality Act (INA) 930 800 −130 −14
I-192 Application for Advance Permission to Enter as Nonimmigrant 183 585/930 1,415 830/485 142/52
I-193 Application for Waiver of Passport and/or Visa 585 2,790 2,205 377
I-212 Application for Permission to Reapply for Admission into the U.S. After Deportation or Removal 930 1,040 110 12
I-290B Notice of Appeal or Motion 675 705 30 4
I-360 Petition for Amerasian Widow(er) or Special Immigrant 435 455 20 5
I-485 Application to Register Permanent Residence or Adjust Status 184 1,140/750 1,120 −20/370 −2/49
I-526 Immigrant Petition by Alien Entrepreneur 3,675 4,015 340 9
I-539 Application to Extend/Change Nonimmigrant Status 370 400 30 8
I-589 Application for Asylum and for Withholding of Removal 0 50 50 N/A
I-600/600A Petition to Classify Orphan as an Immediate Relative/Application for Advance Processing of an Orphan Petition 775 810 35 5
I-600A/I-600 Supp. 3 Request for Action on Approved Form I-600A/I-600 N/A 405 N/A N/A
I-601 Application for Waiver of Ground of Excludability 930 985 55 6
I-601A Application for Provisional Unlawful Presence Waiver 630 960 330 52
I-612 Application for Waiver of the Foreign Residence Requirement (Under Section 212(e) of the INA, as Amended) 930 525 −405 −44
I-687 Application for Status as a Temporary Resident under Section 245A of the Immigration and Nationality Act 1,130 1,130 0 0
I-690 Application for Waiver of Grounds of Inadmissibility 715 770 55 8
I-694 Notice of Appeal of Decision 890 725 −165 −19
I-698 Application to Adjust Status From Temporary to Permanent Resident (Under Section 245A of the INA) 1,670 1,615 −55 −3
I-751 Petition to Remove Conditions on Residence 595 760 165 28
I-765 Application for Employment Authorization 410 490 80 20
I-800/800A Petition to Classify Convention Adoptee as an Immediate Relative/Application for Determination of Suitability to Adopt a Child from a Convention Country 775 810 35 5
I-800A Supp. 3 Request for Action on Approved Form I-800A 385 405 20 5
I-817 Application for Family Unity Benefits 600 590 −10 −2
I-821D Consideration of Deferred Action for Childhood Arrivals (Renewal) 0 275 275 N/A
I-824 Application for Action on an Approved Application or Petition 465 500 35 8
I-829 Petition by Entrepreneur to Remove Conditions on Permanent Resident Status 3,750 3,900 150 4
I-881 Application for Suspension of Deportation or Special Rule Cancellation of Removal 185 285/570 1,800 1,515/1,230 532/216
I-910 Application for Civil Surgeon Designation 785 650 −135 −17
I-924 Application for Regional Center Designation Under the Immigrant Investor Program 17,795 17,795 0 0
I-924A Annual Certification of Regional Center 3,035 4,470 1,435 47
I-929 Petition for Qualifying Family Member of a U-1 Nonimmigrant 230 1,515 1,285 559
I-941 Application for Entrepreneur Parole 1,200 1,200 0 0
N-300 Application to File Declaration of Intention 270 1,320 1,050 389
N-336 Request for a Hearing on a Decision in Naturalization Proceedings 700 1,755 1,055 151
N-400 Application for Naturalization 640/320 1,170 530 83
N-470 Application to Preserve Residence for Naturalization Purposes 355 1,600 1,245 266
N-565 Application for Replacement Naturalization/Citizenship Document 555 545 −10 −2
N-600 Application for Certificate of Citizenship 1,170 1,015 −155 −13
N-600K Application for Citizenship and Issuance of Certificate Under Section 322 1,170 960 −210 −18
USCIS Immigrant Fee 220 200 −20 −9
G-1041 Genealogy Index Search Request 65 240 175 269
G-1041A Genealogy Records Request 65 385 320 492
Biometric Services 85 30 −55 −65

___________________________

Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  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.

To update my September 5, 2019 post, USCIS has announced a final rule that requires a $10 non-refundable registration fee for each cap-subject H-1B submitted by petitioning employers.  USCIS announced that this registration fee will modernize operations and allow the agency to more efficiently process H-1B applications.  The rule goes into effect on December 9, 2019 and the registration fee will be required in order to file H-1B cap-subject petitions, including advanced degree exemption applications.

Note that H-1B applications that are NOT cap-subject will NOT have to pay the registration fee.

Employers will be required to electronically register with USCIS during a soon to be announced registration period.  We will continue to provide up to date information on Immigration View as USCIS releases information.

Immigration and Customs Enforcement (ICE) recently announced changes to student’s access to the Student and Exchange Visitor Program (SEVP).    Instead of allowing  students  access to their portal accounts indefinitely, in the future student’s access will be limited after their optional practical training (OPT) authorization ends.  The government will soon only allow access to the SEVP Portal for up to six months after the students OPT ends.   Therefore, It is important for students to make a copy of their portal record.

Two system upgrades will initiate this change.  The first change, the SEVP Portal Release 1.10, will limit the students’ access to six months after their OPT End Date.

The second system upgrade will be SEVP Portal Release 1.11, which will add an additional email for all students that will be sent when a student’s OPT ends to inform them their portal access closes in six months. Students will continue to receive emails from the SEVP Portal 30 days in advance of their portal access closing and also on the day their access ends.

In our continuing series of reports, Charles (“Charlie”) Oppenheim, Chief of the Visa Control and Reporting Division, U.S. Department of State, shares his most recent analysis of current trends and future projections for the various immigrant preference categories with AILA (the American Immigration Lawyers’ Association).

Below are highlights from the most recent “check-in with Charlie” (August 16, 2019), reflecting his analysis of current trends and future projections for the various immigrant preference categories.

This month, Charlie’s comments on the first quarter of this fiscal year are limited due to insufficient data, but we look forward to more specific predictions on demand trends and date movement in the coming months.

Check-in with DOS’ Charlie Oppenheim:  August 16, 2019

UPDATE:  Following determination of the dates listed in the September 2019 visa bulletin, the EB-3 category has become unavailable and will remain so through the end of this fiscal year. This includes not only EB-3 China and EB-3 India, but the entire category, including EB-3 Worldwide, EB-3 El Salvador, Guatemala and Honduras, EB-3 Mexico, EB-3 Philippines and EB-3 Vietnam.  Charlie had identified this possibility on page 8 of the September visa bulletin when he stated that “(i)t is likely that corrective action will also be required for other preferences prior to the end of the fiscal year.”  Additionally, Charlie has cautioned that, similar to EB-3, an immediate cut-off in visa usage could very well occur in the EB-1 and EB-2 categories at any time before the end of the fiscal year if the level of demand results in those annual limits being reached prior to the end of the fiscal year.

The fact that demand has resulted in various annual limits having been reached is not a surprise to Charlie and is his goal each year.  What is unexpected is that it is happening much sooner than expected. Prior to FY-2018 if such action were required it had normally occurred in September, and the FY-2018 issues could be attributed to the changes in USCIS processing of employment cases.

At a macro level, the fact that there may be a need to limit/cut-off future use of numbers is a positive situation to the extent that it means that all of the numbers available under the applicable annual limits will have been used. However, for individual applicants in which the ability to immediately file for Adjustment of Status is critical to remaining in the U.S., the retrogression may have significant negative impact.

———-

Family-based Preference Categories

As has been the case for the past few months, the F2A Final Action Date will remain current across categories for September 2019. Fairly sizeable USCIS demand in the FB Mexico preference categories continues.  The continued lack of significant demand in the FB Philippines preference categories has resulted in artificially rapid movement in those final action dates. This continues to be done to maximize number use under the various annual limits.  Apart from Mexico, there seems to be lack of interest in the family-sponsored preference categories based on the failure of applicants to act on their case in timely manner.  As we move into the next fiscal year, expect movements in the family-sponsored preference categories that are consistent with what we have seen in FY2019; until the demand patterns sufficiently improve.

Employment-based Preference Categories

EB-1:  As we enter FY2020, expect to see the EB-1 categories continue to be separated into three different Final Action Dates-one for EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam), two others for EB-1 China and EB-1 India respectively.  Charlie does not expect any of the EB-1 categories to become current at any time in the foreseeable future.  Charlie is hesitant to predict what the Final Action Dates will be in the EB-1 categories for October.  While he hopes the EB-1 Worldwide and EB-1 China dates will revert to where they were in July 2019, it is possible they will not fully recover.  However, regarding EB-1 India, which is now unavailable, Charlie is confident that it will not recover in October and may not do so for the foreseeable future.

In September 2019, EB-1 Worldwide (including EB-1 El Salvador, Guatemala and Honduras, EB-1 Mexico, EB-1 Philippines, and EB-1 Vietnam) advances 15 months, from July 1, 2016 to October 1, 2017. The reason these categories were able to advance is that the heavy surge in USCIS demand for that began in mid-May through early July 2019 did not persist. Not only did this demand not persist, but the return of unused EB-1 numbers from consular posts abroad provided additional room to allow the advancement of these categories.

In contrast, EB-1 India has become unavailable due to continued high demand, which resulted in full use of its numbers for FY19. The pent-up demand that will continue to accrue for the 6 weeks that this category remains unavailable will further delay the category’s ability to recover.  EB-1 China demand remains strong, resulting in a retrogression of 2.5 years in the September visa bulletin to January 1, 2014 in order to limit any use of numbers for the remainder of the year.

EB-2:  EB-2 Worldwide (including EB-2 El Salvador, Guatemala and Honduras, EB-2 Mexico, EB-2 Philippines,and EB-2 Vietnam) advances one year to January 1, 2018, while EB-2 India inches forward 6 days to May 8, 2009.  EB-2 China holds at January 1, 2017 for September 2019. Like EB-1 Worldwide, the movement for EB-2 Worldwide is due to the lessened demand and additional room made available after consular posts returned unused numbers.  Unlike the other employment-based preference categories, the demand trends for EB-2 are such that Charlie is more confident that the Final Action Dates for this category (i.e., EB-2 Worldwide, including EB-2 El Salvador, Guatemala and Honduras, EB-2 Mexico, EB-2 Philippines, and EB-2 Vietnam) will be able to recover to current in either October or November 2019.

EB-3:  Charlie is unable to say when the Final Action Dates for EB-3 Worldwide, EB-3 El Salvador, Guatemala, Honduras, EB-3 Mexico, EB-3 Philippines, and EB-3 Vietnam, will once again become current.  While it is possible that this could occur in October 2019, it might also take longer.  Charlie hopes that there can be rapid recovery for EB-3 India, which also retrogressed earlier, over a period of several months. However, a timeline for recovery is not guaranteed.

Already scheduled USCIS interviews may continue in USCIS’ discretion for all categories that have either retrogressed or become “unavailable”. If the application is approvable, rather than receiving a visa number immediately, USCIS’ request for a visa number will be placed in Charlie’s pending demand file and will be authorized for use once the Final Action Date advances beyond the applicant’s priority date. Having cases in the pending demand file provides Charlie with much needed visibility to demand which allows him to move the Final Action Dates in a more calculated manner without the volatility which has been experienced.  For September 2019, EB-3 China Other Workers holds at November 22, 2007.

EB-4:  The entire EB-4 category is “Unavailable” for September, and that status has already been imposed during August 2019.  Charlie discussed demand resulting from an increase in decisions for Special Immigrant Juvenile (SIJ) cases in June 2019.  The result of these decisions being a significant and unexpected increase in demand for June and July 2019.  Charlie mentioned that had this unexpected increase in demand not happened, it would have been possible to allow most EB-4 categories to be listed as “Current” for the month of September.

Diversity Visa Lottery

All categories will be current for September.  To the extent that the winners are eligible and had promptly submitted their documentation and timely responded to any inquiries from the Kentucky Consular Center (KCC) and/or the post in order to be scheduled for interview, they should be able to receive their immigrant visas by the end of September.  Any such cases not finalized and approved by close of business (COB) September 30, 2019 will no longer be entitled to status or eligible to receive DV immigrant visas.  Since 1999, 5,000 DV numbers were offset to support the NACARA program. As there are very few remaining NACARA matters, going into 2020 the vast majority of these previously diverted 5,000 numbers will once again be available for the DV program usage.

You may access the August 2019 Visa Bulletin here and the September 2019 Visa Bulletin here.

 

___________________________

Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  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.

As you (should) know, the current edition of the Form I-9 expired on August 31, 2019.  USCIS has decreed that, until further notice, employers should continue using this 2017 edition of the Form I-9 (annotated with “Form I-9 07/17/17 N” in the lower left corner and “Expires 08/31/2019” in the upper right corner) until further notice.  This version of the Form is available on USCIS’ website for use in Fillable PDF, Print and Spanish (for employers in Puerto Rico only).

Employers are to Continue to Use the Current Form I-9 for Employment Eligibility Verification even after the expiration date of Aug. 31, has passed because USCIS is still in the process of issuing an a new version of the form.

USCIS initially published an information collection notice in the Federal Register on March 1, 2019, at 84 FR 7101, allowing for a 60-day public comment period. USCIS received 21 comments in connection with the 60-day notice.  On June 5, USCIS published a new information collection notice in the Federal Register, at 84 FR 26140, allowing an additional 30 day public comment period.

It is expected that the current version of the form will be extended without changes, although minor clarifications may be made to the form’s instructions.

Employers must continue to comply with all IRCA requirements, including timely completion and updating of the Form I-9 to verify the identity and employment authorization of all employees.  There is no exception or waiver from these requirements due to the expiration date listed on the Form I-9.

We will provide updated information about the new version of the Form I-9 as it becomes available.

___________________________

Alka Bahal is a Partner and the Co-Chair of the Immigration Practice of Fox Rothschild LLP, specializing in corporate immigration law and compliance.  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.

 

The Department of Homeland Security (DHS) has published a notice in the Federal Register of a proposed rule to amend its regulations to allow for USCIS to require a $10 registration fee for each petitioner seeking to file H-1B cap-subject petitions.   Written comments are due by October 4, 2019.     As a reminder, April 1, 2020 will be the first day to file Fiscal Year 2021 H-1B cap-subject petitions and we anticipate further information from USCIS.    Immigration View will continue to provide updates on changes to the H-1B process.

On Wednesday, July 24th 2019, the U.S. Department of Homeland Security published a new EB-5 regulation which will go into effect November 21, 2019.  The new EB-5 regulations will effectuate a number of changes, including increasing the minimum investment amounts, revising the standards for TEA determination, allowing investors to maintain their priority dates, and clarifying procedures for investors removing conditions on permanent residence.

  • Increasing the Minimum Investment Amounts:

 The new regulations increase the minimum investment amounts for TEA investments from $500,000 to $900,000 and for non-TEA investments from $1 million to $1.8 million.  This change maintains the 50% ratio as before with the minimum investment distinction between TEA and non-TEA investments.   Additionally, moving forward, the government will adjust the minimum investment amounts every 5 years to account for inflation.

Investors who have been considering making an EB-5 investment should move so immediately to avoid paying an additional $400,000 for a TEA investment.  There is sufficient time to file an investor’s I-526 petition before November 21, 2019.  The next 120 days provides investors with ample time to select a project, work on their source of funds documentation with immigration counsel, complete the subscription agreement, wire the funds, and authorize immigration counsel to file their I-526 immigrant investor petition.

  • Revising the Standards for TEA Determination:

The new regulation addresses one of the most hotly contested items surrounding the EB-5 program: TEA designation.  The regulation changes the manner by which TEAs are determined and removes State authority for TEA designation.  TEAs will now be managed by the Department of Homeland Security.  Specifically, TEAs may be issued for projects that can meet the 150% the national average unemployment through use of a single census tract, where the project is located, plus directly adjacent tracts that touch the tract where the project is located.

This revised standard will likely minimize the number of projects that qualify for TEA designation.  Likewise,  we expect to see a change in the types of EB-5 projects in the market with a shift out of major metropolitan areas and into smaller or rural areas, or areas of high unemployment.   The new regulations expressly address the contentious ‘gerrymandering.’

  • Allowing Investors to Maintain Priority Dates:

 One of the positive changes in the new regulations offers investors with approved I-526 petitions the flexibility to maintain their priority dates and file a new petition.  This is tremendous for investors who invested in a project that failed or a regional center that was terminated.

  • Clarifying Removal of Conditions:

The regulation also provides clarity for investors filing the I-829, Petition to Remove Conditions on Permanent Residence.  Specifically, the rule indicates that family members who are lawful permanent residents must file their own application to remove conditions on their permanent residence.  This would not apply to relatives who were included in the principal EB-5 investor’s petition to remove conditions.

  • Explaining Application of Grandfathering:

 Moving forward, there will be no grandfathering of projects, only filed I-526 petitions.  As a result, it is likely we will see some projects currently in the marketplace cease fundraising efforts.

Barring legislative action, we expect the new rule will go into effect on November 21, 2019 and become the new standard for the EB-5 program.  Developers, Regional Center Owners/Operators, and Investors should act within the next 4 months in order to benefit from the program under the current regulation.  There is sufficient time to file EB-5 investor petitions before the new rules become effective.  Please reach out to me immediately and directly should you wish to file an investor petition or establish a new EB-5 project.

 

Ali Brodie is a Partner and the Co-Chair of the Immigration and EB-5 Immigrant Investor Practice Groups of Fox Rothschild LLP and has extensive experience in corporate immigration law and compliance. Based in Fox Rothschild’s Los Angeles, California and Denver, Colorado offices, Ali’s practice spans the United States and reaches Consulates worldwide. You can reach Ali at (303) 446-3854 or at abrodie@foxrothschild.com.

USCIS’ previous practice of adjudicating the I-539, Application to Extend/Change Nonimmigrant Status, filed with a qualifying I-129 petition under Premium Processing has ended.  USCIS now requires every I-539 applicant pay a biometrics fee and an Application Support Center appointment take place to capture the applicant’s biometrics.  This has led to I-539 applications taking substantially longer to process.  I-539 applications cannot be premium processed.    

Applicants should contact an immigration attorney to discuss issues such as timing and travel restrictions. 

At a recent event, one of my former high school classmates who today is a distinguished Stanford University professor asked me whether there was much immigration legal work in Pittsburgh.  He then commented that 80 percent of his graduate students were foreign nationals.

Of course, the same likely could be said for Carnegie Mellon or the University of Pittsburgh because a majority of graduate students in the nation’s science, technology, engineering and mathematics (STEM) fields are foreign nationals.

Some surprising hard statistics drive home this point. A 2017 study reports that 81 percent of full-time graduate students in electrical and petroleum engineering at U.S. universities are international students, and 79 percent in computer science are foreign nationals. The Pew Research Center noted that the federal Optional Training Program or OPT has seen a 400 percent increase in foreign students graduating and working in STEM fields from 2008 to 2016.

Immigrants from all over the world are being educated at American institutions of higher education, and many are seeking or being sought after to stay and apply their knowledge and talent to the United States workforce.

Education, in many ways, is a U.S. export with a positive balance of trade. Many foreign students pay full tuition, others make academic, scientific, economic and entrepreneurial contributions to this country’s body of work, knowledge and innovations.  They are often top students or they wouldn’t have made it here.  Their numbers are declining because current immigration policy makes a foreign student’s ability to stay in the U.S., regardless of their accomplishments or an employer’s need for their service, less secure.

The U.S. Citizenship and Immigration Services (USCIS) claims to be “cracking down” on employment-based immigration. For example, the very popular H-1B visa – which provides for foreign workers to be temporarily employed in specialty occupations – is plagued with requests for evidence to prove in the extreme that the position sought to be filled requires at least a bachelor’s level education and that the immigrant has that education.  Recently, USCIS cracked down on a post-doctoral researcher whose visa was sought by a local university.  USCIS demanded proof that a position that requires a doctoral degree is one that also requires a bachelor’s degree. In another case, USCIS required a translation of the immigrant’s diploma into English because the esteemed University of Pennsylvania, from which he earned his degree, issues its diplomas in Latin.

Not all of the “crackdown” is that funny.  As USCIS re-adjudicates previously approved petitions, some long-employed H-1B workers are being denied extensions of their visas.

A highly valued tech worker whom I know had been in his position for close to a decade while waiting for the availability of visas so he and his family could file for permanent residency green cards.  The long wait is because of the simple fact that he was born in India.  The denial of his recent extension petition was because USCIS arbitrarily chose not to believe that a senior software developer for an international consulting firm required a bachelor’s degree – notwithstanding that three prior extensions had been approved, and in spite of the worker having a master’s degree, a decade of experience and praise from industry experts.  The worker and his family returned to India.  The company lost a valuable employee. The community lost a high earning family and taxpayer. After another family learned of the impediments to coming to the U.S. legally and staying legally, and realized that the U.S. is no longer very open to them, the nation lost even more rich talent who wanted to study, work or invest here.

This is not about undocumented individuals, refugees or criminal aliens.  It is a different story, sadder as the beacon of hope that once was the U.S.’s message to the rest of the world has grown dim.  It is about walls of a different sort – administrative and procedural and bureaucratic walls erected to deter immigrants from coming legally to the U.S. with the intention of learning, working and achieving. These same barriers are forcing U.S. firms to cease or relocate parts of their businesses that require foreign- born workers. Frustratingly, USCIS has been creative in its almost daily changes of processing protocols, changes that impose more restrictions, delays and roadblocks.

This year record numbers of H-1B petitions were filed in the annual lottery. The high demand reflects the need for workers and the absence of sufficient numbers of U.S. workers at a time when record numbers of Americans are reaching retirement age and leaving the workforce.

Why are there Pittsburgh based start-ups that export their research and development functions to Canada and Spain?  The answer is because their workers can safely secure and maintain lawful status and employment authorization in those nations.  Other countries welcome and benefit from foreign talent that the U.S. “doesn’t have room for.”

Is there immigration work in Pittsburgh?  Are there immigrants still coming to Pittsburgh?  Of course there is and are.  Walk through most business districts, and one likely will hear many passersby speaking a language other than English (and other than Yinzerese).

Our local schools, universities, hospitals, businesses, restaurants and institutions have a host of foreign immigrants learning, working and owning there.

Immigration can continue to make America great, if we let it!