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 Reportedly, approximately 90,000 H-4 EAD-holders will be affected if the rule is rescinded.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

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.

The Department of Homeland Security (DHS) has issued its long-awaited Notice of Proposed Rulemaking (NPRM) to amend USCIS Regulations relating to cap-subject H-1B petitions filed under both the regular cap and advanced degree exemption. Comments from the public may be submitted to the agency within the next 30 days.  This does not affect cap-exempt H-1B petitions.

 While the proposed changes are subject to possible modification, be aware that the upcoming H-1B cap season will likely be dramatically different from past years.  Highlights of the proposed changes include:

Pre-Registration

Electronic Registration/Pre-Registration
There is a proposed requirement that all cap-subject H-1B employers first register each intended petition electronically with USCIS during a designated period rather than directly filing complete H-1B petition packets with USCIS.  Basic information relating to the petitioner and beneficiary would be required in order to register. An employer would be limited to one registration per beneficiary within the same fiscal year.  USCIS does not plan to impose a registration fee at this time.  Only those employers whose registrations are selected (selected registrants) would be eligible to file cap-subject H-1B petitions during the particular filing period. 

Initial Registration/Random Selection 
An initial, time-limited registration period would be created with a start date at least 14 days prior to April 1st, which is the first date when cap-subject petitions may be filed each year. During the initial registration period USCIS would determine whether sufficient employer registrations were received to reach the regular cap for the new fiscal year.

  • If not, USCIS would notify all registrants that they may file their H-1B cap-subject petitions on behalf of the named beneficiaries and registration would remain open to employers.

    • On a rolling basis, USCIS would continue accepting and selecting electronic registrations until the regular H-1B cap is met, checking registration numbers at the end of each day to determine when there are enough to meet the cap.
    • A random selection may or may not be conducted as determined by USCIS.
  • If so, USCIS would close the registration period and randomly select enough registrants to meet the regular cap.
  • USCIS would notify the selected registrants of the applicable H-1B petition filing period and where to file their H-1B cap-subject petitions.
  • After the selection process is completed for the regular cap, USCIS would determine whether there are enough remaining eligible registrants to meet the 20,000 advanced degree exemption.
    • If not, USCIS would notify all registrants that they may file their H-1B cap-subject petitions on behalf of the named beneficiaries and registration would remain open to employers.
    • USCIS would continue accepting and selecting electronic registrations until the advanced degree exemption is met. A random selection may or may not be conducted as determined by USCIS.
  • If so, USCIS would close the registration period and use a computer-generated random selection process to meet the advanced degree exemption.

Petition Filing for Selected Registrants Only
USCIS would notify the selected registrants when and where they may file their H-1B petitions on behalf of the named beneficiaries.  Only the selected registrants would be permitted to file cap-subject H-1B petitions.

  • An employer that registers to file multiple petitions (each on behalf of a different beneficiary) may be selected to file some of its petitions and not selected for others.

Unselected Registrations
Unselected registrations would remain on reserve for the fiscal year so that if USCIS determined that it must increase the number of registrations to meet the regular cap or advanced degree exemption (presumably in case some of the selected registrants fail to file or their H-1B petitions are denied), then USCIS would select from among the reserve registrants and if needed re-open the registration until the regular and advance degree exemptions are met. 

  • If the registration period is re-opened, USCIS would announce the re-opened registration period start date on its website and accept additional registrations sufficient to meet the new projected amount of registrations needed to meet the regular cap and/or advanced degree exemption. 

 Selection Process

Regular Cap Exhausted First
With the goal of maximizing approvals for the most-skilled or highest-paid petition beneficiaries, the proposed regulations would change the sequence for considering petitions filed for beneficiaries counted against the regular cap or beneficiaries counted under the advanced degree exemption.

  • USCIS would select registrants toward the regular cap first until that cap is reached.  This would include all registrants (that is, those seeking to employ beneficiaries with only bachelor degrees or equivalent as well as those with advanced degrees from US education institutions).
  • Only when the projected number of registrations needed to meet the regular cap is reached would USCIS select registrants who are eligible for the advanced degree exemption.

The proposed rule states that by changing the selection order, USCIS believes that the total number of petitions selected under the regular cap for H-1B beneficiaries possessing a master’s or higher degree from a U.S. institution of higher education will increase overall each fiscal year.


If you wish to discuss your plans for the upcoming H-1B cap season or the proposed rule, please contact your Fox Rothschild attorney or any of the firm’s Immigration Practice Group co-chairs.

USCIS announced yesterday that it has returned all FY2019 cap-subject H-1B petitions that were not selected in the “lottery”.

 You may recall that between April 2-6, USCIS received 190,098 FY 2019 cap-subject H-1B petitions.  In May, USCIS completed its computer-generated random selection process for 20,000 US advanced degree petitions as well as the 65,000 remaining FY2019 spots. Many of these petitions were subject to requests for more evidence (RFEs).  Simple division indicates that for FY 2019, ~45% of the H-1B petitions were selected for processing, leaving ~55% (or 105,098 petitions) to be returned.

 After August 13, 2018, petitioners who timely filed their FY2019 cap-subject H-1B petitions but did not receive an I-797 Notice of Action acknowledging receipt nor their returned petition (with unused filing fees), may contact USCIS.

 To discuss this, or how to be prepared for the FY2020 cap season, please feel free to email or call Ms. Wadhwani or your Fox Rothschild contact.


Catherine Wadhwani is a partner and co-chair of the Immigration Practice Group at Fox Rothschild LLP. She may be reached at cwadhwani@foxrothschild.com.

 

Last week the U.S. District Court for the Eastern District of California issued its ruling in United States of America v. State of California.  Fox Rothschild’s Jeffrey D. Polsky, L&E Department Co-Chair offers an insightful summary of the decision, which has implications for both immigration law and California employment law.  To view Jeff’s post on our California Employment Law blog, click here https://californiaemploymentlaw.foxrothschild.com/2018/07/articles/advice-counseling/court-addresses-conflict-between-state-and-federal-immigration-requirements/.

 

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.

The US Citizenship and Immigration Service (USCIS) announced today, September 18, 2017, that it will again expand its resumption of premium processing for additional types of H-1B petitions.

Effective immediately, H-1B petitions subject to the Fiscal Year 2018 cap are eligible for premium processing.  This includes petitions under the 65,000 cap and the 20,000 additional petitions for beneficiaries with a US master’s or higher degree.  Readers may recall that the FY 2018 cap was reached in April 2017.  Those pending filings that were selected in the H-1B lottery, which generally have October 1, 2017 start dates, are the ones that are included under this expanded resumption of premium processing.  This is indeed welcome news for both the petitioning employers and beneficiaries who may now achieve decisions that could allow the H-1B employment to begin on or shortly after the anticipated start date.

Today’s expansion of premium processing is in addition to two prior resumptions of premium processing which included:

  • H-1B petitioners who are exempt from the H-1B cap as:
    • An institution of higher education,
    • A nonprofit related to or affiliated with an institution of higher education, or
    • A nonprofit research or governmental research organization.
  • H-1B  petitions that are exempt because the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.
  • H-1B petitions for physicians under the Conrad 30 or an IGA (interested government agency) waiver program, and

For now, USCIS continues its temporary suspension of premium processing for all other H-1B petitions including but not limited to extensions of stay.

The Agency stated that it will continue to expand eligibility for premium processing for other types of H‑1B petitions as workloads permit.  You may recall that when USCIS announced in March 2017 that is was suspending premium processing for H-1B petitions, the agency said that it expected to resume premium processing of H-1B petitions in general by early October 2017.  This may yet be achieved.

In its announcement USCIS included a reminder that H-1B petitioners may request expedited processing based on specific criteria such as humanitarian need.

Until then, USCIS will continue to reject any Form I-907 Request for Premium Processing filed with non-eligible H-1B petitions.

________________

Catherine Wadhwani is a partner in the immigration practice at Fox Rothschild LLP.

The US Citizenship and Immigration Service (USCIS) announced today, July 24, 2017, that it will again expand its resumption of premium processing for certain types of H-1B petitions.

Effective immediately, H-1B petitioners who are (or have a sound argument that they are) exempt from the H-1B cap, are eligible to request premium processing.  This includes petitioners that are:

  • An institution of higher education,
  • A nonprofit related to or affiliated with an institution of higher education, or
  • A nonprofit research or governmental research organization.

In addition, USCIS stated that it will resume premium processing for petitions that may be exempt “if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.”

This welcome news comes about a month after USCIS resumed premium processing of H-1B petitions for physicians under Interested Government Agency (IGA) J-1 waiver programs such as the Conrad 30 waiver program for shortage area physicians.  Employer’s petitioning for H-1B status for IGA-Waivered physicians became eligible for premium processing on Monday, June 26, 2017.

You may recall that when USCIS announced in March 2017 that is was suspending premium processing for H-1B petitions, the agency said that it expected to resume premium processing of H-1B petitions in general by early October 2017.  In today’s announcement, USCIS indicated that it will further “resume premium processing of other H-1B petitions as workloads permit.”  So it appears that USCIS is on its way toward meeting the October time-frame.

Until then, USCIS will continue to reject any Form I-907 Request for Premium Processing filed with non-eligible H-1B petitions.  Petitioners who aren’t eligible for premium processing, may of course, seek expedited processing based on such things as humanitarian reasons.

US Customs and Border Protection (CBP) announced yesterday that beginning on May 31, 2017, it will email reminders to Visa Waiver Program travelers notifying them of their “last possible departure date from the US”.  In addition, CBP added a feature to its website https://i94.cbp.dhs.gov/I94/#/home so that travelers may check their last possible departure date online.

 For now, only those admitted to the US under the Visa Waiver Program can benefit from the new features, but CBP indicated that it will incorporate additional nonimmigrant travelers with future updates. 

 To check their last possible date of departure, Visa Waiver Program travelers can enter the www.cbp.gov.  Then, click on Get Most Recent I-94.  From there, click on View Compliance. When I tried the system, sometimes the screen which included the View Compliance option appeared directly without having to click Get Most Recent I-94.  Either way, ultimately the option that is needed is View Compliance.  In the next screen after clicking View Compliance, a traveler may enter his/her name, birthdate, passport number and country of passport issuance to find the number of days remaining in the period of stay and end date of admission.  For Waivered Tourists, the next screen should indicate the number of days remaining before their last date of departure.