USCIS announced the start of the FY 2020 H-1B cap season, start dates for premium processing of cap-subject H-1B petitions, and the launch of its new H-1B data hub, while reminding petitioners of its new H-1B cap selection process.
A new Field Assistance Bulletin reiterates an H-1B petitioner's obligations when using electronic means to make the required notice to all affected employees.
The Department of State's Visa Bulletin for April 2019 notes that Final Action Date movement in many employment-based preference categories continues to be greater than might ordinarily be expected. This is anticipated to continue for at least the next few months.
USCIS has updated the addresses for filing Form I-129, Petition for a Nonimmigrant Worker.
Self Check, a feature that allows employees to verify their employment eligibility, now requires a myE-Verify account.
President Trump has extended the wind-down period for Deferred Enforced Departure (DED) for certain eligible Liberians for an additional 12 months, through March 30, 2020.
Federal authorities arrested five people linked to a scheme that allegedly helped Chinese nationals obtain student visas by hiring individuals who used fake Chinese passports to take English proficiency tests for the foreign students.
USCIS Director L. Francis Cissna told senior staff that the agency's International Operations Division, which operates in more than 20 countries, will be closed down. The duties of those offices will be transferred to U.S. embassies and consulates and to domestic U.S. offices.
USCIS has resumed premium processing for all H-1B petitions as of March 12, 2019. All H-1B petitions may be upgraded to premium processing or filed originally with a request for premium processing.
USCIS discussed five common reasons for RFEs on H-1B petitions, among other things, at a March teleconference.
Recent news reports erroneously stated that starting in 2021, visas would be required of U.S. travelers entering Europe. In fact, pre-travel automated screening and authorization, but not visas, will be required to check for "security and migration risks" for those benefiting from visa-free access to Schengen area countries, according to the European Commission.
The Social Security Administration has announced a new "Travel and Border Crossing Records" system. The new system will collect information about applicants, beneficiaries, and recipients under Titles II, XVI, and XVIII who have had absences from the United States.
The 18-month extension permits current beneficiaries under South Sudan's TPS designation to re-register for TPS and remain in the United States with work authorization through November 2, 2020.
The latest news at the firm including recent and upcoming events and publications.
1. USCIS Announces FY 2020 H-1B Cap Season Start, Updates, and Changes
On March 19, 2019, U.S. Citizenship and Immigration Services (USCIS) announced the start of the fiscal year (FY) 2020 H-1B cap season, start dates for premium processing of cap-subject H-1B petitions, and the launch of its new H-1B data hub, while reminding petitioners of its new H-1B cap selection process. Below are highlights of the changes.
Start of FY 2020 cap season. USCIS will begin accepting H-1B petitions subject to the FY 2020 cap on April 1, 2019, and will reject any FY 2020 cap-subject H-1B petitions filed before April 1. Form M-735, Optional Checklist for Form I-129 H-1B Filings (PDF, 262 KB), provides detailed information on how to complete and submit a FY 2020 H-1B petition.
Premium processing for FY 2020 cap-subject petitions. Premium processing will be offered in a two-phased approach during the FY 2020 cap season “so USCIS can best manage premium processing requests without fully suspending it as in previous years,” the agency said. The first phase will include FY 2020 cap-subject H-1B petitions requesting a change of status. The second phase will include all other FY 2020 cap-subject petitions.
Starting April 1, FY 2020 cap-subject H-1B petitioners requesting a change of status on their Form I-129, Petition for a Nonimmigrant Worker, may request premium processing by concurrently filing Form I-907, Request for Premium Processing Service. However, to prioritize data entry for cap-subject H-1B petitions, USCIS will not begin premium processing for these petitions immediately. USCIS said it will begin premium processing for these petitions by May 20, 2019, and will notify the public before premium processing begins for these petitions. If a petitioner does not file Form I-907 concurrently with a FY 2020 H-1B cap-subject petition requesting a change of status, the petitioner must wait until premium processing begins to submit Form I-907. Until premium processing begins for these petitions, USCIS will reject any Form I-907 that is not filed concurrently with a cap-subject Form I-129. Petitioners must appropriately select response “b” for Item 4 in Part 2 of Form I-129 to be eligible to concurrently file Form I-907, USCIS said.
Premium processing for all other FY 2020 cap-subject H-1B petitions will not start until at least June 2019, the agency noted. Cap-subject petitioners not requesting a change of status may not submit their premium processing requests concurrently with their H-1B petitions. These petitioners will be eligible to upgrade to premium processing by filing Form I-907 once premium processing begins for this group. USCIS said it will notify the public with a confirmed date for premium processing for cap-subject petitioners not requesting a change of status.
At this time, premium processing for H-1B petitions that are exempt from the cap, such as extension of stay requests, remains available, USCIS said.
Note: Reaction to the guidance has been mixed. Some say they are not filing for premium processing before lottery selection. Given the costs of applying for premium processing ($1,410 as of this writing), their suggestion is that cases only be premium processed once they have been selected in the lottery. By this reasoning, even if you are filing a change of status H-1B petition, filing for premium processing concurrently with a petition that might not even be selected for adjudication risks rejection not only of the premium processing request but of the entire petition (and loss of the cap number) if there are any problems with the premium processing check. On the other hand, some would like to file for premium processing before lottery selection. Their human resources representatives feel that it’s easier to try premium processing rather than go back to the hiring managers later to seek additional funds.
New H-1B data hub. USCIS also announced a new “H-1B Employer Data Hub” that will be available on uscis.gov on April 1, 2019. The data hub is part of USCIS’s “continued effort to increase the transparency of the H-1B program by allowing the public to search for H-1B petitioners by fiscal year, North American Industry Classification System (NAICS) industry code, company name, city, state, or zip code. This will give the public the ability to calculate approval and denial rates and to review which employers are using the H-1B program,” USCIS said.
New H-1B cap selection process. In January, the Department of Homeland Security announced a final rule amending regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, which will be in effect for the FY 2020 cap season. This change “increases the chances that more of these visas will be granted to those with an advanced degree from a U.S. institution of higher education,” USCIS said.[Back to Top]
2. DOL Issues Bulletin on Compliance With H-1B Posting Requirements When Using Electronic Means
A new Field Assistance Bulletin reiterates an H-1B petitioner’s obligations when using electronic means to make the required notice to all affected employees.
The Department of Labor’s Wage & Hour Division (WHD) said it has seen a rise in the use of electronic notifications as workplaces increasingly provide their employees with documents by electronic means. Among other things, WHD noted, an H-1B petitioner must notify affected U.S. workers of its intent to hire H-1B nonimmigrant workers. This notification requirement, commonly referred to as the notice or posting requirement, informs U.S. workers of the terms of employment of nonimmigrant workers, the right of U.S. workers to examine certain documents, and the ability of U.S. workers to file complaints if they believe that violations have occurred.
A new Field Assistance Bulletin (FAB) reiterates an H-1B petitioner’s obligations when using electronic means to make the required notice to all affected employees. This includes those who are employed by a third-party employer. The bulletin is here.[Back to Top]
3. April Visa Bulletin Notes Movement in Many Employment-Based Categories
The Department of State’s Visa Bulletin for April 2019 notes that Final Action Date movement in many employment-based preference categories continues to be greater than might ordinarily be expected. This is anticipated to continue for at least the next few months.
The Department explained that this movement is a direct result of fewer applicants proceeding to final action on their cases at consular posts abroad and at U.S. Citizenship and Immigration Services offices. Once large numbers of applicants begin to have their cases brought to final action, final action date movements will necessarily slow or stop, the bulletin says. Moreover, in some categories, final action date retrogression is a possibility if demand levels are excessive. Therefore, the recent rates of final action date advances will not continue indefinitely, but the bulletin notes that “it is not possible to say at present when they will end.”
The April 2019 Visa Bulletin is here.[Back to Top]
4. USCIS Updates Filing Addresses for Nonimmigrant Worker Petitions
U.S. Citizenship and Immigration Services has updated the addresses for filing Form I-129, Petition for a Nonimmigrant Worker.
The new addresses are here. Practitioners advise checking addresses shortly before filing because they can change without notice.[Back to Top]
5. Self Check Now Requires myE-Verify Account
Self Check, a feature that allows employees to verify their employment eligibility, now requires a myE-Verify account, U.S. Citizenship and Immigration Services (USCIS) announced. Employees will be prompted to create or log in to myE-Verify accounts, where they can perform multiple Self Check queries and lock their Social Security numbers to prevent others from using them in E-Verify. “The streamlined account creation process continues to protect employee information while eliminating the need for repeated identity-proofing,” USCIS said.[Back to Top]
6. Trump Administration Announces Extension of Liberian DED 'Wind-Down' Period, EADs
On March 28, 2019, President Trump issued a memorandum extending the wind-down period for Deferred Enforced Departure (DED) for certain eligible Liberians for an additional 12 months, through March 30, 2020. During this time, such individuals may remain in the United States. President Trump also directed the Department of Homeland Security to provide for continued work authorization for Liberian DED beneficiaries.
The Trump administration also announced that U.S. Citizenship and Immigration Services (USCIS) will publish a notice in the Federal Register with information on the six-month automatic extension, through September 27, 2019, of employment authorization documents (EADs) currently held by eligible Liberians under DED and instructions on how they can obtain EADs for the remainder of the DED wind-down period.
For more information, click here.[Back to Top]
7. Five Arrested in Chinese Student Visa Scheme
Federal authorities arrested five people linked to a scheme that allegedly helped Chinese nationals obtain student visas by hiring individuals who used fake Chinese passports to take English proficiency tests for the foreign students.
The arrests were made pursuant to a 26-count indictment returned by a federal grand jury. The indictment charges the defendants with conspiring to use false passports, using false passports, and aggravated identity theft as part of the scheme to impersonate Chinese nationals who were required to take the Test of English as a Foreign Language (TOEFL) to obtain a student visa.
A sixth defendant in the case is believed to be currently residing in Taiwan.
When a foreign national goes to a TOEFL testing location, the test-taker must present an original, non-expired, government-issued identification document recognized by their home country. According to the indictment, all six defendants used counterfeit People’s Republic of China passports to impersonate 19 different Chinese nationals at various TOEFL testing locations in and around Los Angeles, California.
The indictment further alleges that one defendant paid for and registered 14 Chinese nationals for TOEFL exams over a one-year period in 2015 and 2016. Following the tests, the defendant allegedly paid three co-defendants approximately $400 per test.
The conspiracy count in the indictment carries a maximum penalty of five years in federal prison. The charge of using a false passport carries a maximum sentence of 10 years. Aggravated identity theft carries a mandatory consecutive two-year sentence.
This case was investigated by U.S. Immigration and Customs Enforcement’s Homeland Security Investigations, the State Department’s Diplomatic Security Service, and U.S. Citizenship and Immigration Service’s Fraud Detection National Security Section. The Educational Testing Service, which administers the TOEFL exam, provided assistance during the investigation.
More details are available here.[Back to Top]
8. Trump Administration Plans to Close USCIS International Operations
According to reports, the Trump administration plans to close international U.S. Citizenship and Immigration Services (USCIS) offices by the end of 2019. USCIS Director L. Francis Cissna told senior staff that the agency’s International Operations Division, which operates in more than 20 countries, will be closed down. The duties of those offices will be transferred to U.S. embassies and consulates and to domestic U.S. offices and the Department of State (DOS), if DOS agrees. USCIS personnel staffing those offices will return to the United States.
DOS said if it reaches such an interagency agreement, “we anticipate a smooth transition and continued efficient processing of USCIS-related work at all of our missions overseas.” DOS has more than 200 posts worldwide.
Director Cissna said in an email to staff that the closures will “better leverage our funds to address backlogs in the United States while also leveraging existing [DOS] resources at post.” He noted that change “can be difficult and can cause consternation. I want to assure you we will work to make this as smooth a transition as possible for each of our USCIS staff while also ensuring that those utilizing our services may continue to do so and our agency operations continue undisrupted.
In addition to helping people apply for immigration benefits, these offices provide assistance in such tasks as helping U.S. citizens and lawful permanent residents, including military personnel abroad, bring family members to the United States or help them apply for U.S. citizenship; international adoptions; refugee resettlement; and immigration fraud investigations.
According to the International Operations (IO) Division’s website, the division’s work includes reuniting families, enabling adoptive children to come to join permanent families in the United States, considering parole requests from individuals outside the United States for urgent humanitarian reasons or significant public benefit, and providing information services and travel documents to people around the world, including those with unique needs and circumstances. “Operating in a dynamic global environment with constantly changing political, cultural, environmental, and socio-economic contexts, IO has approximately 240 employees located in the U.S. and in three international districts composed of 24 field offices in 21 countries. Our employees are highly diverse and include foreign nationals in addition to U.S. citizens; foreign nationals make up more than half of the IO staff working abroad and approximately one-third of all IO employees.”
Immigration advocates expressed concerns about further discouraging immigrants and disengaging the United States from the rest of the world. Barbara Strack, former chief of USCIS’ Refugee Affairs Division, said the closures would “throw [the legal immigration system] into chaos around the world.” She warned that the move would “smack all government employees abroad, including folks in the military, who have a foreign spouse or kids they are trying to bring to the U.S. legally.”
More information about IO is here.[Back to Top]
9. USCIS Resumes Premium Processing for All H-1B Petitions
U.S. Citizenship and Immigration Services (USCIS) has resumed premium processing for all H-1B petitions as of March 12, 2019. All H-1B petitions may be upgraded to premium processing or filed originally with a request for premium processing.
In recent years, USCIS has discontinued premium processing for H-1B cap cases in April to allow sufficient time for application of the lottery and receipting-in of selected petitions. Last year, the agency extended the suspension of premium processing well beyond the cap filing season and expanded the suspension to include most H-1B petitions.
In January 2019, premium processing was restored for FY 2019 cap-subject petitions that were filed in April 2018 and remained pending. In February, USCIS resumed premium processing for non-cap H-1B petitions filed before December 21, 2018. Now USCIS has restored premium processing for all H-1B petitions.
It is not clear whether the agency will continue premium processing for all H-1B petitions once H-1B cap petitions are filed in the first week of April. It is possible that USCIS could discontinue premium processing again for H-1B cap petitions or even other types of petitions.
To request an upgrade to premium processing for pending petitions that have received a Request for Evidence (RFE), petitioners should include their request for premium processing, along with the required fee, when submitting the response to the RFE. The USCIS filing fee for premium processing is $1,410, which guarantees action on the petition within 15 calendar days of USCIS’s receiving the request. If USCIS does not take adjudicative action within the 15-day window, the agency refunds the petitioner’s premium processing fee and continues with expedited processing of the petition.
Those who received a transfer notice for a pending H-1B petition and are requesting premium processing service must submit the premium processing request to the service center now handling the petition. They should also include a copy of the transfer notice with the premium processing request to avoid possible delays. If the petition was transferred and the petitioner sends the premium processing request to the wrong center, USCIS will forward it to the petition’s current location. However, the premium processing “clock” will not start until the premium processing request has been received at the correct center.
The USCIS notice, which includes additional details about where to send premium processing requests in the event of a transfer, is here.[Back to Top]
10. USCIS Releases Notes on H-1B Filing Tips and RFEs
U.S. Citizenship and Immigration Services (USCIS) has released the official minutes from its teleconference on “H-1B Filing Tips and Requests for Evidence (RFEs),” held March 7, 2019.
Among other things, USCIS discussed five common reasons for RFEs on H-1B petitions:
- Evidence demonstrating that the offered position qualifies as a specialty occupation;
- Whether the labor condition application properly corresponds to the proffered position in the petition;
- Evidence of the employer-employee relationship and qualifying work;
- Evidence of the beneficiary’s qualifications; and
The minutes are here.[Back to Top]
11. Europe to Require Authorization of U.S. Travelers, Not Visas, for Short-Term Travel
Recent news reports erroneously stated that starting in 2021, U.S. citizens traveling to Europe will need visas. In fact, pre-travel automated screening and authorization, but not visas, will be required to check for “security and migration risks” for those benefiting from visa-free access to Schengen area countries, according to the European Commission (EC). The “European Travel Information and Authorisation System” (ETIAS) will cross-check visa-exempt travelers, including those from the United States, against European information systems for borders, security, and migration. The automated check is expected to take “minutes” in most cases. The application fee is expected to be about $8.
An EC fact sheet states that an ETIAS travel authorization does not reintroduce visa-like obligations. There is no need to go to a consulate to make an application, no biometric data are collected, and significantly less information is gathered than during a visa application procedure. As a general rule, a Schengen visa procedure can take up to 15 days, and can in some cases be extended up to 30 or 60 days, but the online ETIAS application “only takes a few minutes to fill in. The validity will be for a period of three years, significantly longer than the validity of a Schengen visa. An ETIAS authorisation will be valid for an unlimited number of entries,” the EC states. U.S. travelers staying in Europe for more than 90 days must have a visa.
The Schengen area includes 26 of the 28 European Union (EU) countries, and a few non-EU countries. A list of countries in the Schengen area is here. The European Commission’s statement is here. Additional details are here.[Back to Top]
12. SSA Announces New Travel and Border Crossing Records System
The Social Security Administration (SSA) has announced a new “Travel and Border Crossing Records” system. The new system will collect information about applicants, beneficiaries, and recipients under Titles II, XVI, and XVIII who have had absences from the United States.
The SSA noted that currently, the agency relies on individuals to self-report their foreign travel. Often, the SSA said, it does not receive these reports or receives them untimely, which results in improper payments. For example, the SSA noted, in general, it suspends Title II benefits to aliens who remain outside of the United States for more than six consecutive calendar months. It generally suspends Title II benefits to both U.S. citizens and non-U.S. citizens who travel to a country where payment is restricted by the United States. Additionally, the SSA suspends Title XVI payments to both citizen and noncitizen recipients who are outside of the United States for a full calendar month or 30 consecutive days or longer. With regard to Title XVIII, the SSA plans to collect this information to make decisions on Medicare entitlement claims and to make determinations on physical presence in the United States.
The SSA notice is here.[Back to Top]
13. TPS Designation Extended for South Sudan
Secretary of Homeland Security Kirstjen M. Nielsen announced on March 8, 2019, the extension of the temporary protected status (TPS) designation for South Sudan for an additional 18 months due to the ongoing armed conflict and “extraordinary and temporary conditions” that support the extension.
There are 84 South Sudan TPS beneficiaries, according to Secretary Nielsen. This 18-month extension of South Sudan’s designation for TPS permits current beneficiaries under South Sudan’s TPS designation to re-register for TPS and remain in the United States with work authorization through November 2, 2020. (The last day of the most recent previous extension is May 2, 2019.) To be eligible for TPS under South Sudan’s current designation, along with meeting the other eligibility requirements, individuals must have continuously resided in the United States since January 25, 2016, and have been continuously physically present in the United States since May 3, 2016.[Back to Top]
14. Klasko News
There are less than 50 spots left for the Spring Seminar! Klasko Immigration Law Partners is pleased to invite you to the 15th annual Spring Seminar at the Union League of Philadelphia on April 16, 2019. Click here to register and get all the details.
IN THE NEWS
Bill Stock Spoke with WHYY.org on Green Card Application Fraud
Bill was quoted in this whyy.org article on visa fraud in Pennsylvania, speaking to how rarely it occurs.
Law360 Covers Ron Klasko as EB-5 Attorney Challenging USCIS.
Ron Klasko receives mention in this Law360 article as the lead attorney on a case in which Chinese EB-5 investors are challenging their second denial .
Bill Stock Quoted in Law360 Article on the Impact of Increased Visa Scrutiny
Bill was quoted on how the uptick in visa scrutiny is pushing employers to move some business operations abroad, citing the unpredictability of visa approvals.
Bill Stock Spoke with Forbes.com About the Impact of Last Minute H-1B Announcements
Bill was quoted several times in this article from Forbes about the latest developments in H-1B filing and premium processing.
RECENT SPEAKING ENGAGEMENTS
Elise A. Fialkowski
Elise spoke to students at Widener University on March 18th about after graduation visa and permanent resident options for international students and exchange visitors.
Ron presented to Wharton MBA students on March 27th about U.S. work authorization options after graduation.
William A. Stock Ι Elise A. Fialkowski
Firm partners Bill and Elise spoke on a panel entitled “Global Talent Challenges in a Border Wall World” at the Philadelphia HR Summit on March 29th.
Lauren D. Berkowitz
Lauren talked with Temple University political science students on March 29th about her career in immigration law and offered advice to students considering a similar career path.
UPCOMING SPEAKING ENGAGEMENTS
On April 10th, Ron will provide the AILA Colorado Conference introduction and present on three panels covering federal court litigation options and guidance.
On April 12th, Ron Klasko will present at the 2019 AILA Spring CLE Conference in Washington DC on litigating petition denials.
Annual Spring Seminar
On April 16th, Klasko Immigration Law Partners will host its annual Spring Seminar, 2019 Climate Change: Navigating a Difficult Immigration Environment. Some spots remain, click here to register.
William A. Stock places on Human Resources Executive and Lawdragon’s list of Most Powerful Corporate Employment Lawyers featuring 20 top practitioners in the area of Immigration Law.
ICYMI: RECENT BLOG POSTS AND ALERTS
5 Common Misconceptions about Green Cards
Liam Sweeney details the best way to avoid anything that may be construed as abandoning your green card once its obtained.
Key Questions to Ask When Developing a Corporate Immigration Policy
Klasko Immigration Law Partners provide a quick checklist to review and assist when developing your Corporate Immigration Policy.
CLIENT ALERT: USCIS Announces Details on Premium Processing for FY 2020 Cap-Subject H-1B Filings
Bill provided an update on USCIS’ announcement regarding filing premium processing for the FY 2020 H-1B Cap season.
H-1B Cap Season at KILP
Anyone who works in immigration law knows that the H-1B cap season is the busiest time of year. This year, KILP had three weeks of festivities to help keep the busy-season spirits high. From special meals to Twin Day, Tie-dye Friday to Taco Tuesday, and a Pi Day celebration, staff participated and enjoyed a range of fun activities around the office.
This newsletter was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Klasko Immigration Law Partners is an active member.[Back to Top]