After the USCIS Director L. Francis Cissna revealed that USCIS will end the practice of denying pending I-131 applications when an applicant travels overseas, USCIS recently updated its website with detailed information. Under the “Special Instructions” section of Form I-131, Applications for Travel Document, it states, “an individual may have an approved advance parole document while a second one is pending. Individual may travel on the approved advance parole document, provided the document is valid for the entire duration of the time abroad.” In this situation, USCIS confirms that the pending Form I-131 will not be considered abandoned. However, USCIS also notes that if the individual files Form I-131, Application for Travel Document, to request an advance parole document and departs the United States without possession of a valid advance parole document for the entire period the individual is abroad, the application of I-131 will still be considered abandoned in this situation.

 

On August 3, 2018, the US District Judge for District of Columbia, John D. Bates, ruled that the Trump administration must fully restore the DACA program. In the decision, the court stated, “The Court therefore reaffirms its conclusion that DACA’s rescission was unlawful and must be set aside.” In addition, the court also denied the government’s motion to reconsider, stating that “The Court has already once given DHS the opportunity to remedy these deficiencies—either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review—so it will not do so again.” However, the judge delayed the order until August 23, 2018 to allow the government to determine whether it will appeal the court’s decision.

The August 3rd decision will not make any new changes to the DACA program. It is still being implemented on the terms of the prior court rulings. USCIS is still accepting and processing DACA Renewal applications who have previously been approved for DACA as a result of the two nationwide injunctions issued in California and New York earlier this year. USCIS is still not accepting the new or initial applications for the first time.

Considering the pending litigation, the American Immigration Lawyer Association recommends the eligible DACA recipients who would like to renew their DACA to consult with an attorney and submit their DACA renewal application as soon as possible.

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.

 

 The civics test is an oral test which is required in the Naturalization application process. The USCIS Officer will ask the applicant up to 10 of the 100 civics questions and the applicant must answer 6 out of 10 questions correctly to pass the civics portion of the naturalization test. On the naturalization test, some answers may change to reflect the result of federal and state elections and appointment or to clarify content and ensure consistency in terminology. After the Presidential Inauguration, USCIS updated the following answers to the questions which are effective immediately. Applicants must ensure that they know the most recent answers to these questions.

Question Update
20.  Who is one of your state’s U.S. senators now?

The answer to this question may have changed on January 3, 2017, when the 115th Congress began to meet.

 

Give the name of one of your state’s current U.S. senators. For a list of current members of the U.S. Senate, please visit www.senate.gov.

 

23.   Name your U.S. representative.

The answer to this question may have changed on January 3, 2017, when the 115th Congress began to meet.

 

Give the name of your current U.S. representative. For a list of current members of the U.S. House of Representatives, please visit www.house.gov.

 

28.  What is the name of the President of the United States now?
  • Donald J. Trump
  • Donald Trump
  • Trump

 

29.  What is the name of the Vice President of the United States now?
  • Michael R. Pence
  • Mike Pence
  • Pence

 

43.  Who is the governor of your state now?

The answer to this question may have changed depending on inauguration dates.

 

Give the name of your state’s current governor. For a list of current governors, please visit http://www.usa.gov/Agencies/State_and_Territories.shtml.

 

46.  What is the political party of the President now?

 

  • Republican (Party)

 

 

Recently, the American Immigration Council (Council) and the American Immigration Lawyers Association (AILA) teamed up on a lawsuit against the U.S. Department of Homeland Security and U.S. Citizenship and Immigration Services (USCIS) seeking to “obtain the information needed to provide the public with an understanding of the operating procedures and Defendant USCIS follows when administering the H-1B lottery. AILA seeks declaratory, injunctive and other appropriate relief under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to compel the release of records …”

As stated in the complaint, with an annual limit of 65,000 visas for new hires, and 20,000 additional visas for professionals with an advanced degree from a U.S. university, employer’s demand for H-1B visas has exceeded the statutory cap for more than ten years. As a result, U.S. employers seeking highly skilled foreign professionals have to submit petitions to USCIS on the first five business day of April for the limited pool of H-1B nonimmigrant visa numbers that are available for the coming fiscal year. If USCIS determines at any time during the first five business days of the filing period that it has received more than enough petitions to meet the numerical limits, the agency will use a computer-generated random selection process (or “lottery”) to choose those petitions that will be accepted for processing according to the statutory limits, taking into account a percentage of the petitions selected which will be denied, withdrawn, or otherwise rejected. Petitions not selected will be returned to the petitioning employers.

“When petitions are submitted to USCIS in April, it’s as if they disappear into a ‘black box,’” said Melissa Crow, Legal Director of the American Immigration Council. “This suit is intended to pry open that box and let the American public and those most directly affected see how the lottery system works from start to finish, and to learn whether the system is operating fairly and all the numbers are being used as the law provides.” As stated by Benjamin Johnson, AILA Executive Director, “Despite the Obama Administration’s public commitment to the values of transparency and accountability, frankly, our attempts to see into this process have been resisted. Instead of responding to our requests for information about how the lottery is conducted, how cap-subject petitions are processed, and how the numbers are estimated and tracked, USCIS has kept the process entirely opaque. This litigation is intended to shine a necessary light on an important process in America’s business immigration system. ”

USCIS has been working on mitigating the impact caused by the processing delay on I-129 petitions. In addition to transferring cases from Vermont Service Center to other Service Centers to balance caseloads, USCIS recently began allowing petitioners who filed Form I-129 requesting an extension of status or change of employer to contact USCIS after the petition has been pending for 210 days or more for an inquiry based on the petition being outside of normal processing time.

Petitioners or the legal representative of record may submit an inquiry by calling the National Customer Service Center at 1-800-375-5283 (TDD for deaf and hard of hearing: 1-800-767-1833). When making an inquiry, be prepared to provide the receipt number and specify that the case has been pending for 210 days or more.

Recently, USCIS has transferred certain types of cases from the Vermont Service Center (VSC) to the Nebraska Service Center (NSC) or the California Service Center (CSC) to balance workload and decrease processing times.

The NSC will now process some of the following types of cases:

  • Form I-129, Petition for a Nonimmigrant Worker, for petitioners requesting H-1B nonimmigrant classification;
  • Form I-539, Application to Extend/Change Nonimmigrant Status, for the H-4 nonimmigrant classification; and
  • Form I-765, Application for Employment Authorization, for H-4 nonimmigrants applying for employment authorization.

The CSC will now process some of the following cases:

  • Form I-129, Petition for a Nonimmigrant Worker, for petitioners requesting L-1 Intracompany Transferee nonimmigrant classification;
  • Form I-539, Application to Extend/Change Nonimmigrant Status, for the L-2 nonimmigrant classification; and
  • Form I-765, Application for Employment Authorization, for L-2 nonimmigrants applying for employment authorization.

USCIS issued transfer notices to the relevant parties on all affected cases. Per USCIS, receipt numbers will not change and the transfer will not delay the processing of any applications or petitions.

To facilitate this process, USCIS has also created a new Workload Transfer Updates page where customers can keep track of workload transfers between USCIS’ five service centers.  The new web page will list all of the transfers that USCIS makes as well as any additional information that customers should know about the transfer.

Today, US Department of Homeland Security (DHS) published a final rule of Optional Practical Training (OPT) program which replaces the existing 2008 interim final rule regarding OPT for F-1 nonimmigrant students who have obtained a STEM degree. The final rule will take effect on May 10, 2016.

According to the news leases issued by ICE on March 9, 2016, the final rule lengthens the STEM OPT extension from 17 months to 24 months. Additionally, the final rule also includes the following enhancement and protections:

  • Only students who earned a degree from a school accredited by a U.S. Department of Education-recognized accrediting agency and certified by SEVP may apply for a STEM OPT extension.
  • Participating students who receive an additional qualifying degree fom an accredited college or university can apply for a second STEM OPT extension.
  • Participating students can use a previously-earned qualifying degree to apply for a STEM OPT extension. The prior degree must not have already formed the basis of a STEM OPT extension and must be from a school that is both accredited by a U.S. Department of Education-recognized accrediting agency and certified by SEVP at the time of the student’s STEM OPT application. The student’s most recent degree must also be from an accredited and SEVP-certified institution.
  • Employers participating in STEM OPT must incorporate a formal training program that includes concrete learning objectives with proper oversight.
  • Employers and students must report material changes in their training program.
  • To guard against adverse effects on U.S. workers, terms and conditions of a student’s training opportunity – such as duties, hours, and compensation – must be on par with U.S. workers in similar positions in the same geographic area of employment. Additionally, the student must not replace a full-time, part-time, temporary or permanent U.S. worker.
  • Students must work a minimum of 20 hours per week per employer to qualify.
  • Students are permitted a limited period of unemployment during the initial period of post-completion OPT and the STEM OPT extension.
  • All STEM OPT employers must participate in DHS’ E-Verify program.

As many are aware, H-1B nonimmigrant visa petition for FY 2017 may be filed starting April 1, 2016. For FY 2016, USCIS received approximately 233,000 cap subject petitions during the first five business days beginning April 1, 2016. This year, it is expected that more people will apply for H-1B than the number available (annual quota of 65,000 regular cap petitions and 20,000 advanced degree cap petitions). Per current regulation, if USCIS receives a sufficient number of petitions to reach the numerical limit during the first five business days in April, USCIS will conduct a random selection “lottery” to determine the petitions that will be accepted for processing. If there is a lottery for 2017, as expected based on the last year’s number, USCIS will make an announcement. Accordingly, the H-1B cap petitions must be filed and received by USCIS by April 7, 2016 in order to get a chance to be entered into the lottery processing.

Here are the answers to two common questions on the H-1B Cap filing process we normally encounter:

Q: Will Premium Processing increase the change of making the H-1B quota?

No. Filing the H-1B cap petition with premium processing will not increase the chances being selected in the lottery. Due to the high volume of filing, USCIS usually delays the starting date of the 15-day premium processing. For FY 2016, premium processing began on April 27, 2015 even the case was filed in the first five business days. However, one benefit of premium processing filing is that the petitioner and beneficiary will get the receipt notice faster than the cases which are filed under regular processing. This information may be helpful for the beneficiaries whose OPT will expire in April as they will be able to determine their cap-gap eligibility and continued working authorization.

Q: Can F-1 student remain in the US if his or her F-1 status expires before 10/1/2016?

Under the cap-gap rule, F-1 students whose OPT was valid at the time of filing the H-1B petition, but for whom the OPT will expire before October 1, will remain in valid status and can continue to stay and work through September 30 when the petition is pending or if it is approved. However, for the students whose OPT was expired and subsequently was in a valid grace period at the time the H-1B cap petition was filed, he/she will receive an automatic extension of stay until September 30 when the petition is pending or if it is approved. However, he/she will not receive the working authorization during this period.

On August 12, 2015, the US District Court for the District of Columbia held that the 2008 STEM OPT extension rule, including the cap-gap rule was invalid, but stayed vacatur of the rule until February 12, 2016. On January 23, 2016, the District Court extended the vacatur until May 10, 2016. If a final rule is published before May 10, 2016, the cap-gap provision should remain valid without interruption.

Due to the time is critical in H-1B cap petition filing, if you have an employee who requires an H-1B petition in order to remain employed, please contact Fox Rothschild immediately to allow sufficient time to prepare the H-1B visa petition and meet the filing deadline.

If Fox Rothschild is assisting you with the filing of an H-1B petition subject to the cap, we will automatically notify you upon the filing of the petition and upon its acceptance for processing (i.e., selection in the lottery) or rejection.

As many of you are aware, the processing of H-1B extensions at both USCIS’ California Service Center (CSC) and Vermont Service Center (VSC) continues to be significantly delayed. Currently, the reported processing times for H-1B extensions at both service centers is mid-June 2015. This extreme delay is causing extraordinary hardship to affected employers and employees as the many pending petitions face the expiration of the automatic 240-day extension of continued status and employment authorization 8 C.F.R § 274a.12(b)(20).

American Immigration Lawyer Association (AILA) has been following up this issue with USCIS Service Center Operations (SCOPS). SCOPS has stated that “it is aware of the issue and is working closely with service centers to work through the backlog.” As to the reasons for the backlog, SCOPS reported a marked increase in H-1B filings, including Simeo filings, and noted that there has been an increase in premium processing petitions as well. SCOPS promised an update on its progress during next month’s call with AILA, which is scheduled for March 9, 2016. In the meantime, attorneys and employers should be cautious about the expiration of 240-day employment authorization and ensure that employees do not work without authorization.