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 Reportedly, approximately 90,000 H-4 EAD-holders will be affected if the rule is rescinded.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

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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.

The co-chairs of Fox Rothschild’s Immigration practice group will be making presentations in many Fox offices on Immigration Compliance: What Employers Need to Know over the next few months. These presentations include an overview of immigration and workplace compliance, including Form I-9 and government inspections.

Topics:

  • Specifics about executing the I-9 under current rules
  • Documenting employees without violating anti-discrimination laws
  • Identifying and reviewing documents for authenticity
  • Auditing and correcting I-9 forms
  • Navigating pitfalls in the process
  • Understanding the penalties for noncompliance, including simple clerical errors
  • Handling the receipt of Social Security no-match letters
  • Best practices for developing a companywide compliance program
  • Live Q&A

These Fox offices are currently scheduled for live programs on the following dates:

Ali Brodie – Los Angeles, California  January 16, 8:30am

Alka Bahal – Princeton, New Jersey  January 17, 12:00 noon

Alka Bahal – Morristown, New Jersey  January 25, 12:00 noon

Alka Bahal – New York, New York  January 29, 8:30am

Ali Brodie – Seattle, Washington  January 31, 8:30am

Ali Brodie – San Francisco, California  March, 5, 8:30am

Alka Bahal & Catherine Wadhwani – Philadelphia, Pennsylvania March 25, 11:30am

Follow the links to the cities above to register for these programs. You may also register by calling 1.877.778.7369 or by emailing the events team at events@foxrothschild.com. Check back here for additional dates and times as more programs are added.

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” (December 17, 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: December 17, 2018

Final Action Date Movements Largely Track Those of Q1 FY2019

With only modest movement in the employment-based preference categories for the first quarter of the fiscal year, we were hoping to see more dramatic forward movement in some of these categories starting with the January 2019 Visa Bulletin.  However, movement tracks similarly to what we experienced during the first quarter.

As of now, Charlie does not have sufficient data to know whether the current demand trend will continue into January so he is unable to comfortably predict final action date movements in the near term.  While Charlie initially hoped to publish specific projections in the January Bulletin, he now expects to publish projections in the February Visa Bulletin.

Since final action dates in several employment-based categories retrogressed during the final months of FY2018, demand in the first quarter was generally high across these categories, and applications which were unable to be processed for a few months are now coming through the pipeline.  Charlie is concerned that demand data may be artificially high and not reflect the true level of future demand.  He will continue to cautiously monitor demand levels over the next few weeks to assess whether this is a true trend and will make predictions accordingly.

Strike While the Iron is Hot!

It has been fortunate that USCIS has decided to accept adjustment of status applications based on the “Dates for Filing” through the first quarter of FY2019. It is Charlie’s understanding that USCIS will announce as early as Monday, December 17, that it will continue to follow the Dates for Filing for applications in January, but that the Final Action Dates may apply as early as February after that.  (Editor’s note: USCIS’ site on dates of filing appears to continue to track the dates for filing in the January 2019 DATES FOR FILING OF EMPLOYMENT-BASED VISA APPLICATIONS.   Therefore, applicants wishing to take advantage of the more liberal “Dates of Filing” should do so while that window of opportunity is open.  Interestingly, for both EB-3 China and India, the Dates for Filing for surpass those for EB-2.  This creates the potential for downgrade filings which may not be available after January.

Note: As always, as final action date movements can be unpredictable, it is critical for clients to file their applications to adjust status or to respond to the NVC Agent of Choice letter as soon as they are eligible to do so.

Programs that Will Sunset if Not Reauthorized

The EB-4 Religious Workers (SR) and EB-5 categories (I5 and R5) will sunset on December 21, 2018 unless reauthorized by Congress.  They are therefore listed as unavailable for January 2019.  The Visa Bulletin lists the final action dates that will apply to these categories, should they be reauthorized.

National Visa Center Filing Statistics Released

The January Visa Bulletin cites to an NVC report of immigrant visa applicants for both family-based and employment-based preference categories that were registered at the NVC as of November 1, 2018.

You may access the December 2018 Visa Bulletin here and the January 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.

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.