Yesterday, USCIS announced it will resume Premium Processing effective Tuesday, March 12, 2019 for all H-1B petitions.  Petitions processed with Premium Processing result in USCIS review within 15-calendar days.  If USCIS fails to act within this time period, the government will refund the petitioner’s premium processing fee.

The reopening of Premium Processing is not specific to FY 2020 H-1B cap petitions.  USCIS will make a separate announcement whether Premium Processing is available for FY 2020 cap petitions soon.  If your H-1B petition is already pending, it is important to file the request for premium processing with the correct USCIS Service Center.  Petitioners who have received a USCIS Transfer Notice, indicating the file was transferred to either the Nebraska or Vermont Service Centers, must file the request for premium processing with the USCIS Service Center now handling the petition.

Numerous news agencies are currently reporting on the European Union Announcement from last year  creating a European Travel Information and Authorization System (ETIAS).  The United States currently uses the Electronic System for Travel Authorization (ESTA) and this new European Union program would be similar to the United States program.  The ETIAS is in the process of further development for future implementation.

Starting in 2021, ETIAS will require that U.S. Citizens traveling to the Schengen Area will need to apply for and receive ETIAS in order to travel into the following countries in Europe:  Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland.

Visa Exempt third-country nationals over the age of 18 will need to complete an online application that requests background information on the applicant and pay an application fee.  The application will be checked against security databases and most responses are anticipated within a matter of minutes.  ETIAS will be valid for 5 years or until the expiry date of the person’s travel document/passport.  Carriers will check for ETIAS authorization prior to boarding for people traveling by air, land and sea.  Please note that this is for visa free travel and will impact a number of other nations in addition to the United States.

 

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” (February 26, 2018), 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’s Charlie Oppenheim:  February 26, 2019

Noteworthy Movements in March

The February 2019 Visa Bulletin listed projections for Final Action Date movements through May 2019 were all fulfilled, with the exception of EB-5 Vietnam, which was projected to move only 3 weeks, but actually advanced by one month for March. Members are reminded that when the projected movement is “up to” a particular amount of time, it means that movement should be interpreted as a range of movement per month between zero and the outer limit of said range from the present through May of 2019.

Employment-Based Preference Categories:

EB-1:  As predicted, there is only modest movement of one month for the EB-1 Worldwide Final Action Date in March, from December 1, 2017 to January 1, 2018. Similarly, the Final Action Dates for EB-1 China and EB-1 India creep forward only three weeks from February 8, 2017 to February 22, 2017.

Charlie underscores that AILA members should expect EB-1 to move at the lower end of the projected range of 0-2 months for EB-1 Worldwide and 0-1 months for EB-1 China and EB-1 India. Based on the continuing high demand, “minimal if any’ movement in the EB-1 categories is expected, and especially in EB-1 China and EB-1 India. The level of demand received after the publication of the projections in the February 2019 bulletin increased by over 50 percent during January, and the level received during the first three weeks of February exceeds that received during all of February 2018.

India EB-2 and EB-3 Remain Flipped:  The EB-2 India Final Action Date advances only three days to April 9, 2009 in March, whereas the Final Action Date for EB-3 India, which was already ahead of EB-2 India in February, advances a full month to May 22, 2009. Although the possibility of this inversion was hinted at for some time, this phenomenon only occurred in February 2019, so it is too soon to know if EB-2 downgrades will be filed, and if so, how that might impact the relative Final Action Dates between these two categories.

EB-2 and EB-3 China:  The Final Action Date for EB-2 China remains ahead of EB-3 China, and continues to advance at a faster rate, with EB-2 China advancing three months to January 1, 2016 in March, and EB-3 China advancing only one week to July 8, 2015 for March. Given the projected advancements and barring any changes in the demand trends, members can expect this to continue for the foreseeable future.

EB-3 Philippines:  Demand in this category continues to remain below the targeted level, requiring the Final Action Date for EB-3 Philippines to advance 4 months to December 1, 2017, in an attempt to generate demand.

Charlie is concerned that this rapid advancement might reflect a similar demand pattern to what this category experienced in FY2014 and early FY2015. At that time, the demand was similarly low. As such, the Final Action Date rapidly advanced. In the Spring of FY2015, a surge of demand in this category resulted in number use during a three-month period, equaling that of the entire previous year, requiring a more than 7-year retrogression in the Final Action Date for EB-3 Philippines. The FY2015 Final Action Date had, at one point, reached October 2014 for April. By May 2015 it retrogressed to July 2007, and ultimately ended the year at December 2004. The drastic retrogressions were required to stop all number use once the limit was reached, and it took many years to fully recover to the October 2014 date.

While Charlie is cautious about advancing the Final Action Date too quickly to avoid a reoccurrence of this type of retrogression, he cannot avoid advancing it where he does not see sufficient demand to meet the per country limit.

EB-4:  The Final Action Date for EB-4 El Salvador, Guatemala and Honduras holds at March 1, 2016 in March, and EB-4 Mexico advances 4 months to January 1, 2018.

EB-5:  EB-5 China advanced the Final Action Date by one week to September 8, 2014 for March. The Final Action Date had previously been advanced in January in anticipation of the Chinese New Year but processing was limited due to the sunsetting of the EB-5 I5 and R5 programs until very late in the month. Guangzhou is working to process as many cases as it can in February, but these may spill into March. EB-5 Vietnam has less demand with early priority dates and as such reaches a Final Action Date of July 15, 2016.

Family-Based Preference Categories:

FB-3 Mexico:  The Final Action Date for FB-3 Mexico, which has remained the same for the last few months, advanced slightly by 3 weeks in March to January 15, 1996. This movement was made possible by a decline in demand for cases being processed at Ciudad Juarez. Charlie did want to note that there is a potential for higher levels of demand pending final action at USCIS.

FB-3 Philippines and FB-4 Philippines:   Both FB-3 and FB-4 Philippines Final Action Dates advanced by more than 4 months and 3 months respectively in March. This reflects continuing low demand in these categories, despite a very large “pool” of applicants with approved petitions that have not yet acted on their case.

Program Reauthorizations and Timing of Visa Bulletin Issuance:

The Department of State published its March 2019 Visa Bulletin prior to President Trump signing into law the Consolidated Appropriations Act, 2019, which reauthorized the EB-4 Religious Workers (SR) and EB-5 (I5 and R5) categories. Members should refer to section D on page 8 of the March 2019 Visa Bulletin for the dates applicable to the EB-4 SR and EB-5 (I5 and R5). Specifically, in March, EB-4 SR is current for all countries except EB-4 SR El Salvador, Guatemala and Honduras, which have a Final Action Date of March 1, 2016, and EB-4 Mexico, which has a January 1, 2018 Final Action Date. EB-5 (I5 and R5) are current in March for all countries except EB-5 (I5 and R5) China-mainland born, which is subject to a September 8, 2014 Final Action Date, and EB-5 (I5 and R5) Vietnam, which is subject to a July 15, 2016 Final Action Date.

Changes to Methodology for Setting Application Filing Dates in the Family-Sponsored Categories:

As mentioned in prior columns, the Application Filing Dates (“Dates for Filing”) are a projection of where Charlie expects the Final Action Date to be about 8-12 months in the future. While this will continue to be the case regarding the Employment-Based (EB) Dates for Filing, the Dates for Filing in the Family-Sponsored Categories are being adjusted to more closely reflect where Charlie expects the Final Action Date to be within 3-6 months.

You may access the February 2019 Visa Bulletin here and the March 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.

It has been widely reported, including by the American Immigration Lawyers Association, that on February 20, 2019 the Department of Homeland Security (DHS) sent a proposal to the Office of Management and Budget (OMB) as per normal regulatory procedure to rescind the H-4 spouse employment authorization document (H-4 EAD) regulation. Reportedly, approximately 90,000 H-4 EAD-holders will be affected if the rule is rescinded.

According to procedure, OMB will first review the DHS proposal, the text of which has not yet been released to the public. The proposed rule will then appear in the Federal Register. After publication in the Federal Register, the public comment period is typically 30-60 days. Thereafter, DHS must review the feedback from the public before issuing a final regulation.

If not already done, it would be prudent for those with H-4 EAD work authorization to contact an attorney right away to consider other work-authorized immigration options. With the time for filing H-1B cap petitions quickly approaching, the sooner this is done the better or the possibility of an FY2020 H-1B cap petition may be foreclosed to H-4 EAD-holders for whom it would otherwise be available.

When the proposed rule is published in the Federal Register, we will provide further information.

 

Mark D. Harley is a Partner of the Immigration Practice of Fox Rothschild LLP, focusing in business immigration law and compliance. You can reach Mark at 412-391-2418, or mharley@foxrothschild.com.

Catherine Wadhwani is a Partner and Co-Chair of the Immigration Practice of Fox Rothschild LLP, focusing in business immigration law and compliance. You can reach Catherine at 412-391-1334, or cwadhwani@foxrothschild.com.

Robert S. Whitehill is a Partner and the Immediate Past Co-Chair of the Immigration Practice of Fox Rothschild LLP, focusing in business immigration law and compliance. You can reach Bob at 412-394-5595, or rwhitehill@foxrothschild.com.

Beginning today, Tuesday, February 19, 2019, USCIS is resuming premium processing for H-1B petitions that were filed on or before Dec. 21, 2018.

In its February 15, 2019 announcement, USCIS explained that H-1B Petitioners in this grouping who wish to upgrade a pending H-1B petition with a premium processing request should:

  • Include a copy of the request for evidence (RFE), if an RFE was issued.
  • Include a copy of the transfer notice (if the petition was transferred) and be sure to submit the premium processing request to the service center currently handling the petition rather than the original service center.
    • Note that if you send the upgrade request to the original location rather than the location to which the petition was transferred, USCIS will forward the petition to the correct location, but the 15-day premium processing clock will not begin until the petition is received at the correct location.  USCIS did not indicate how long it will take them to transfer a case in this situation.

The partial suspension of premium processing availability remains in effect for some H-1B petitions, including those filed on or after December 22, 2018.  Petitions currently eligible for premium processing include:

  • those filed by cap-exempt entities and for beneficiaries who will work at cap-exempt entities,
  • petitions seeking an extension of stay with the same employer without change,
  • FY2019 cap / advanced degree exemption petitions that have not yet been adjudicated, and now,
  • H-1B petitions received by USCIS on or before December 21, 2018.

USCIS expects to further resume the availability of premium processing when its workloads permit.

If you aren’t sure whether your H-1B petition is eligible for premium processing, please contact your Fox Rothschild attorney.

Catherine V. Wadhwani
Partner & Co-Chair, Immigration Practice Group
p. 412.394.5540 | f. 412.391.6984
cwadhwani@foxrothschild.com
www.foxrothschild.com

How can we help you succeed?

http://www.foxrothschild.com/practiceareas

View My Blog: Immigration View

On February 15, President Trump signed the Consolidated Appropriations Act, 2019 thereby averting another government shutdown.  The spending bill funds the federal government and extends the EB-5 Regional Center Program authorization through September 30, 2019.  EB-5 stakeholders will resume efforts towards achieving EB-5 reform and long-term reauthorization.

On January 25, 2019, USCIS announced that it would resume premium processing for all fiscal year (FY) 2019 H-1B cap petitions on Monday, January 28, 2019.  There is some confusion among employees and employers thinking that this applies to the upcoming H-1B season.   Please note that the next H-1B cap season is fiscal year 2020, with an initial filing date of 4/1/2019.  USCIS is just now allowing employers and applicants to premium process fiscal year 2019 cases that were to start October 1, 2018.

Premium processing requests that USCIS process a case within 15 calendar days.  Those Petitioners who wish to premium process, file a Form I-907, Request for Premium Processing Service, with a $1,410 filing fee.  If you receive a request for evidence (RFE) for a pending FY 2019 cap petition, you can include a request for premium processing along with the RFE response.  If your FY 2019 case is still outstanding, you can now request premium processing to obtain an answer.   Filing a premium processing request will prompt USCIS to adjudicate a backlogged FY 2019 case before the start of the next H-1B filing season.

USCIS is likely to suspend the premium processing for FY 2020 H-1B cap petitions.  Cap-exempt or non-cap subject H-1B petitions remain eligible for premium processing.  For more information, please continue to observe this blog.

The U.S. Citizenship and Immigration Services has resumed processing of EB-5 Regional Center applications/petitions.  The EB-5 Regional Center Program has been authorized and extended for three weeks in connection with the short-term spending bill signed by President Trump, thereby ending the government shutdown.  The continuing resolution (CR) reopens the government through February 15, 2019.   The CR also lifts the suspension on other immigration programs including E-Verify, religious workers programs, and Conrad 30 Waiver Program for J-1 physicians.

Cap-subject US employers and their prospective employees alike have been waiting on edge to find out whether the FY2020 H-1B Cap Season would proceed as before or whether US Citizenship and Immigration Service’s (USCIS’s) recently proposed significant changes would be implemented to take effect before April 2019.  The result:  the Registration requirement will not take effect in April 2019, but the lottery will be held with the selection process reversed 

What does this mean?  In effect and as anticipated, US employers should proceed as before to have their H-1B cap cases analyzed, prepared and filed during the first week of April. For FY2020, cap-subject employers will not be required to electronically register their intended H-1B petitions in the lottery. In order to test and refine the system, USCIS decided to suspend the electronic registration requirement for this fiscal year.  Before implementing the electronic registration requirement in the future, an announcement will appear in the Federal Register to notify the public.

There will, however, be an important change this cap season.  That is, cap-subject petitions will first be chosen from the regular cap of 65,000 and only then will the 20,000 advanced degree exemption petitions be selected.  USCIS believes that reversing the selection process will result in a significantly higher number (16% or 5,340 workers) of petitions being chosen on behalf of beneficiaries who possess a master’s or higher degree from a U.S. higher education institution.  USCIS states reversing the selection order is in support of the President’s April 18, 2017 Buy American and Hire American Executive Order which directed the Agency to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”  Unfortunately, the Rule change doesn’t seem to consider the potentially negative impact on US employers who rely on professionals who possess less than a master’s degree nor employers whose workers are offered an appropriate wage for their profession, but are not the most highly paid overall.

When the electronic registration requirement is implemented, cap-subject US employers who want to file H-1B petitions, including those eligible for the advanced degree exemption, will have to electronically register with USCIS during a specifically designated registration period.  Notice of the electronic registration period is to be provided at least 30 days in advance to the start date.  USCIS will then select from the electronic registrations to determine which employers may proceed to file their H-1B petitions.  For more on this topic, please see my blog post H-1B Cap Season: Important Proposed Changes dated December 4th on Fox Rothschild’s Immigration View blog.

As in prior years, USCIS will post H-1B cap information on its website at www.uscis.gov in advance of the time for filing cap-subject H-1B petitions.

E-Verify has resumed operations following the government shutdown.  This federal government system used by many employers to confirm eligibility of employees to work in the United States had been closed during the 35-day shutdown.

While enrolling in E-Verify is mostly voluntary, once an employer is enrolled in E-Verify, it is critical to follow the rules and associated timelines with creating E-Verify cases for new hires.  During the shutdown, employers were unable to create E-Verify cases for new hires including those employees hired just before the shutdown and those hired during the shutdown.  It is important to remember during the shutdown, employers were still required to timely complete Form I-9.  Now that the shutdown is over, it is imperative employers take the following steps immediately:

  • Creating E-Verify Cases: Create an E-Verify case for every employee hired during (or just prior to) the shutdown by February 11, 2019.  Use the date of hire from the employee’s Form I-9.  If the E-Verify case creation date is more than three days after the date the employee began working for pay, select the option for “Other” in the drop down menu and enter “E-Verify Not Available” as the reason.
  • Handling TNCs:  If an employee received a Tentative Nonconfirmation (TNC) before E-Verify resumed, and the employee has notified the employer of his or her intention to contest the TNC by February 11, 2019, the employer should revise the date by which the employee must contact the Social Security Administration (SSA) or Department of Homeland Security (DHS) to resolve the TNC.  Specifically, the employer should add 10 federal business days to the date on the “Referral Date Confirmation” notice and provide the revised notice to the employee (the employer may revise the dates on the hard copy of the notice after printing a copy).  Federal business days are Monday through Friday and do not include federal holidays.  This  extended deadline does not apply to TNC cases referred after E-Verify resumed operations.
  • Advising Federal Contractors:  DHS guidance is that any calendar day during which E-Verify was unavailable during the shutdown should not count toward the federal contractor deadlines.  Federal contractors must consult with their contracting officer as to how to proceed.

As a result of the lengthy shutdown, E-Verify anticipates there will be delays in processing times and in responses to requests for assistance.  Employers who utilize E-Verify will need to remain alert in the event there is another government shutdown in February.  Please contact your Fox Rothschild Immigration Attorney with any questions.