H-1B Temporary Workers

On May 11, 2018, United States Citizenship and Immigration Services (USCIS) issued a Policy Memorandum for Public Comment, with the comment period set to end on June 11, 2018.  The proposed change would affect those individuals and their dependents in the following statuses:  Student (F-1 Academic Student and F-2 Spouse or Child of F-1 nonimmigrant); Exchange Visitor (J-1 Exchange Visitor and J-2 Spouse or Child of J-1 nonimmigrant); and Vocational Student (M-1 Vocational Student or non-academic Student and M-2 Spouse or Child of M-1 nonimmigrant).  The new policy memorandum would change the way F, M, and J visa holders accrue unlawful presence.   A person is unlawfully present in the United States if he or she is present “after the expiration of the period of stay authorized by the Secretary of the Department of Homeland Security or is present in the United States without being admitted or paroled” according to INA §212(a)(9)(B)(ii).  If one is unlawfully present for greater than 180 days, a three year bar is placed upon the individual to return to the United States.  If the person is unlawfully present for greater than one year, a 10 year bar is placed upon the individual to return to the United States.

The current policy memorandum dated May 6, 2009, entitled “Consolidation of Guidance Concerning Unlawful Presence for Purposes of Sections 212(a)(9)(B)(i) and 212 (a)(9)(C)(i)(I) of the Act”, USCIS recognized that a Customs and Border Protection (CBP) stamp of Duration of Status (D/S) meant that those individuals with this admittance into the United States did not accrue unlawful presence until the day after USCIS formally found a nonimmigrant status violation or on the day after an Immigration Judge ordered exclusion, deportation or removal.  Those who were admitted until a specific date as shown on their Form I-94 Entry Record would start accruing unlawful presence on the day after this form expired.

USCIS now proposes that effective August 9, 2018, those F, J. or M nonimmigrants granted admission as D/S, Duration of Status, who failed to maintain their status before August 9, 2018 will start accruing unlawful presence at that time and will no longer be deemed to be in Duration of Status.  If a nonimmigrant in these statuses has been found in violation prior to this date or had their Form I-94 expire previously, they will start to accrue unlawful presence on the earlier date.  This is a significant change in policy and the understanding of duration of status and changes the requirement that only a finding by USCIS of being out of status when adjudicating a request for another immigration benefit or a finding by an immigration judge triggers unlawful presence.  Now simply being out of status as of August 9, 2018, would trigger the start of the calculation of unlawful presence.

As of August 9th if the policy becomes procedure, students will begin to accrue unlawful presence if they are not in lawful nonimmigrant status on or after August 9, 2018, defined by no longer pursuing the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity.  Additionally, the day after completing the course of study or program (including any authorized practical training plus any authorized grace period (as outlined in 8 CFR 214.2)), they will begin to accrue unlawful presence.

8 CFR 214.2 allows an additional 60-day period to prepare for departure from the United States or to transfer.   An F-1 student authorized by the DSO to withdraw from classes will be allowed a 15-day period for departure from the United States. The Regulations also allow for what is commonly known as “Cap Gap” wherein an F-1 student who is the beneficiary of a Cap Subject H-1B petition with a change of status request is automatically extended until October 1st of the fiscal year in which the H-1b is filed.   As many immigration practitioners know, H-1b petitions often are not adjudicated by October 1st and this will put those F-1 students who would have been allowed to stay in the U.S. in reliance of Duration of Status after the Cap Gap period has ended at risk of accruing Unlawful Presence if they remain in the United States.  As such, this change in policy is fundamentally unfair because it was made after the filing of the fiscal year H-1B applications and will impact numerous students.

Furthermore, it is not clear how the government will allow for Re-instatement of Student status, as per the regulations at 8 CFR 214.2(f)(16), where a student who has been out of status for less than 5 months or shows an exceptional circumstance can be re-instated by USCIS and re-enrolled in school.  Re-instatement requires that the student does not have a record of repeated or willful violations of USCIS regulations.  However, if the Unlawful Presence has started to accrue, it is questionable whether USCIS will approve such requests.

As the Policy Memorandum proposes a material change in the accrual of Unlawful Presence for Students, Exchange Visitors and Vocational Students, it is sure to bring legal challenges.  The proposed change will essentially ensure that those who come here to study face additional challenges beyond their studies.

Please keep tuned in to this blog for further information as it becomes available.

 

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.

 

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

The American Competitiveness in the Twenty First Century Act of 2000 (AC21) has provisions that extend H-1B visas beyond the 6-year limit for those in the process of becoming US lawful permanent residents.  AC21’s Section 106(a) allows H-1B extensions in 1-year increments beyond the 6-year limit if a labor certification, immigrant visa petition (I-140) or employment-based adjustment of status (I-485) application was filed more than 365 days prior to the expiration of the H-1B status. Section 104(c) of the statute allows 3-year extensions for those whose I-140 has been approved and whose priority date precludes the filing of an adjustment of status application.

 Yesterday, January 3, the Times of India ran an article entitled:  “Trump administration considers proposal that may send back more than 500,000 Indian tech workers.” The article cites rumors that the Department of Homeland Security (DHS)  is considering a change in its interpretation of Section 104(c).  AC21 Section 104(c) is being used by employers of hundreds of thousands of Indian tech workers, as well as of other nonimmigrant workers caught in the priority date backlog, to extend their lawful stay so that they may continue to work  in the US while they wait to file the final set of paperwork in their green card applications.  Without the ability to extend their H-1B visas, many could be required to leave…preventing that is the reason Congress passed AC21 into law. Yet, the rumors reported in the Times of India and other news outlets are that the current administration is looking to reinterpret language in Section 104(c) which uses the words “may grant” rather than “shall grant” in order to discontinue the H-1B extensions in support of President Trump’s “Buy American, Hire American” initiative. 

 The reported rumors have caused a huge stir.  Interpretations of AC21, some of which predate USCIS’ existence, have not been codified by regulation, but can’t change by rumor.  The interpretation can be formalized, so this is an issue to watch closely.  There haven’t been any official government pronouncements that 500,000 Indian tech workers are being sent back home.  One has to wonder how doing so would enhance the competitiveness of American employers in the 21st century. 

 

If Congress cannot resolve FY2018 funding issues by December 8, 2017, it will result in another federal government shutdown. Such a shutdown will impact immigration services across a number of different government agencies, affecting many of the systems and processes employers rely on to facilitate employment, including E-Verify, visa petition processing, labor certifications and other government services that corporations and individuals rely upon.

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

E-Verify

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

U.S. Citizenship and Immigration Services

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

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

Department of Labor

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

U.S. Customs and Border Protection

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

The Department of State

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

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

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

Social Security Administration

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

State Department of Motor Vehicle Agencies

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

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

 

On October 3, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that it will begin accepting premium processing requests for all categories of H-1B petitions.  In March 2017, USCIS had suspended the premium processing program for H-1B petitions, citing the need to reduce its overwhelming processing backlog. Over the past several months, USCIS phased in premium processing for certain limited categories of H-1B petitions.  USCIS’s latest announcement allows employers to file any type of H-1B petition, including those seeking extension of stay or change of status, under Premium Processing and also allows employers to convert any such pending petitions to premium processing.

Under USCIS’ premium processing service, petitions are adjudicated within a 15 day calendar days for an additional government filing fee of $1,225 instead of the current regular processing time of 4-5 months.

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

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.

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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.

On Tuesday, April 18, 2017, President Donald Trump signed a new Executive Order, “Buy American and Hire American.” The new Order states that its first purposes is to focus on conducting studies and putting forth plans for federal agencies to immediately maximize the use and procurement of materials and products made in the U.S. (“Buy American”).

The second stated purpose of the Order focuses on a review of current immigration policies and regulations, specifically at H-1B visa program, and non-immigrant visa categories (for skilled foreign national workers) (“Hire American”).

The Order also directs government agencies to tighten up on visa fraud and abuse in the particulate with the H-1B visa program. The Order also directs that the government will fully prioritize the use of American companies and goods in federal projects.

The government has reported that 199,000 H-1B applications were submitted for the 2018 fiscal year, according to data from the U.S. Citizenship and Immigration Services, compared with the 236,000 H-1B cap petitions filed during the prior year.

In an interview earlier today with Snap On’s CEO, Nicholas Pinchuk, who said in a statement “The upskilling of the American workforce is the seminal issue of our time. We must refocus on technical education, restore our respect for the dignity of work, and celebrate technical jobs not as the consolation prize of our society, but as what they really are — a national calling essential to our ongoing prosperity.”

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Alka Bahal is a Partner and the Co-Chair of the Corporate Immigration Practice of Fox Rothschild LLP. Alka is situated in Fox Rothschild’s Roseland, 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.

Today, USCIS announced it has completed the H-1B cap FY 2018 random selection process (also known as the H-1B lottery).  This means USCIS has completed the lottery and has selected enough petitions to meet the 65,000 regular-general cap and the 20,000 cap under the advanced degree exemption.   USCIS will reject and return all unselected H-1B cap petitions.  The government reported receiving a total of 199,000 H-1B cap petitions during the H-1B cap FY 2018 filing period, which started on April 3, 2017. This is remarkably less when compared with the 236,000 H-1B cap petitions filed during the FY 2017 period, which started on April 1, 2016.

As a reminder, effective March 3, 2017, USCIS temporarily suspended premium processing for all H-1B petitions for up to six months.  As such, no H-1B cap FY 2018 petition will be processed using the expedited premium processing, commonly utilized in prior years.  We will report back once USCIS has reinstated premium processing for H-1B petitions.