Included below are older news articles from this website. Click on the link at the bottom of the page to return to the current News page.
9/18/2019 - October Visa Bulletin Issued
The Department of State has released the Visa Bulletin for October 2019. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Dates for Filing" chart, and family-based adjustment of status applicants in all categories except F2A must also use the "Dates for Filing" chart. The filing cutoff for EB-3 India is February 1, 2010, while that of EB-2 India is July 1, 2009. Little forward movement is expected in the "Final Action Dates" for EB-3 India in the coming months, with slight progression under EB-2 India.
8/17/2019 - September Visa Bulletin Issued
The Department of State has released the Visa Bulletin for September 2019. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart, while family-based adjustment of status applicants must use the "Dates for Filing" chart. The date cutoff for EB-3 India has retrogressed to July 1, 2005, while that of EB-2 India has progressed slightly to May 8, 2009. Significant progression of dates is expected in October 2019, when a new allocation of visa numbers will be available.
7/16/2019 - August Visa Bulletin Issued
The Department of State has released the Visa Bulletin for August 2019. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart, while family-based adjustment of status applicants must use the "Dates for Filing" chart. The date cutoff for EB-3 India has retrogressed to January 1, 2006, while that of EB-2 India has progressed slightly to May 2, 2009.
6/14/2019 - July Visa Bulletin Issued
The Department of State has released the Visa Bulletin for July 2019. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart, while family-based adjustment of status applicants must use the "Dates for Filing" chart. The date cutoff for EB-3 India remains at July 1, 2009, while that of EB-2 India has progressed slightly to April 24, 2009.
6/7/2019 - Premium Processing Available for All H-1B Petitions Types
Effective June 10, 2019, USCIS will accept premium processing for all types of H-1B petitions. Prior to that date, all H-1B petitions except for FY2020 H-1B cap-subject petitions requesting consular processing would be eligible for premium processing. Given the backlog in case processing at USCIS, and the rising level of RFEs and NOIDs, we expect premium processing to become unavailable again for certain filings in the near future.
5/15/2019 - June Visa Bulletin Issued
The Department of State has released the Visa Bulletin for June 2019. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart, while family-based adjustment of status applicants must use the "Dates for Filing" chart. The date cutoff for EB-3 India remains at July 1, 2009, while that of EB-2 India has progressed slightly to April 19, 2009.
4/15/2019 - May Visa Bulletin Issued
The Department of State has released the Visa Bulletin for May 2019. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart, while family-based adjustment of status applicants must use the "Dates for Filing" chart. The date cutoff for EB-3 India has progressed to July 1, 2009, while that of EB-2 India has progressed slightly to April 16, 2009.
4/11/2019 - FY2020 H-1B Cap Reached
USCIS has confirmed that it received 201,011 H-1B petitions under the FY2020 H-1B lottery (as compared to 190,098 petitions under last year's lottery). Those petitions comprise both regular cap and U.S. Master's exemption cases. As reported earlier, the order of selection has been flipped this year to provide U.S. Masters holders with improved odds of selection under the lottery.
3/29/2019 - Premium Processing Available for H-1B Cap Cases in Staggered Form
Effective May 20, 2019, USCIS will begin premium processing for FY2020 H-1B cap cases (i.e. H-1B cap cases that were filed this month) that requested a change of status. Starting in June 2019 or later, premium processing will be extended to FY2020 H-1B cap cases that requested consular processing. Premium processing remains available, for now, for all non-cap H-1B cases.
3/15/2019 - April Visa Bulletin Issued
The Department of State has released the Visa Bulletin for April 2019. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart, while family-based adjustment of status applicants must use the "Dates for Filing" chart. The date cutoff for EB-3 India has progressed to June 22, 2009, while that of EB-2 India has progressed slightly to April 12, 2009.
2/20/2019 - Revised Form I-539 Going into Effect on March 11, 2019
On March 11, 2019, USCIS will publish a new version of Form I-539 and immediately stop accepting earlier versions. The new version requires all applicants to sign the form and pay an $85 biometrics fee. Parents can sign for children under age 14. All applicants will also be required to appear at a biometrics appointment. In the past, Form I-539s filed along with I-129 petitions under premium processing were adjudicated at the same time as the I-129 petition. This practice is very unlikely to continue given the new biometrics requirement for I-539 applicants.
2/19/2019 - USCIS Expands Premium Processing for Certain Petitions
USCIS has expanded premium processing to all H-1B petitions filed on or before December 21, 2018. Petitions filed at the Nebraska Service Center and H-1B cap petitions from last year are also eligible for premium processing.
2/15/2019 - March Visa Bulletin Issued
The Department of State has released the Visa Bulletin for March 2019. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart, while family-based adjustment of status applicants must use the "Dates for Filing" chart. The date cutoff for EB-3 India has progressed to May 22, 2009, while that of EB-2 India has progressed slightly to April 9, 2009.
2/8/2019 - USCIS Accepting Copies of Negative P Visa Consultations Directly from Labor Unions
USCIS will now accept copies of negative consultation letters directly from labor unions relating to a current or future P nonimmigrant visa petition. A consultation letter from a U.S. labor organization is generally required for petitions in the P visa classification, which covers athletes, artists, entertainers and their essential support personnel. A similar prior announcement applied to negative consultation letters for O visa petitions. In the past, only consultation letters directly submitted by petitioners would be accepted by USCIS.
1/31/2019 - USCIS Revises H-1B Cap Filing Procedures
The DHS has issued a final rule that revises the H-1B cap filing process. In response to DHS's initial proposal for this rule, our office submitted a comment letter arguing that the new rule illegally disadvantaged foreign degree holders, contrary to Congressional intent. The Final Rule makes references to our letter but retains the system contained in the proposal. Effective this cap season, all H-1B applications (whether for U.S. Master's degree holders or not) will first be considered under the regular cap of 65,000 visas. Any remaining U.S. Master's degree holders will then be considered under the 20,000 exemption. Effective next cap season, USCIS will institute a cap pre-registration period starting March 18, 2020. This period will last at least 14 days, during which time cap applicants will file a free pre-registration form with basic biographic and employer information. Based on these submissions, USCIS will conduct a lottery, and allow lottery winners to file full petitions during a 90 day window.
1/25/2019 - USCIS Reopens Premium Processing for Fiscal Year 2019 H-1B Cases
Cases filed in April 2018 under the Fiscal Year 2019 H-1B cap were not eligible for premium processing. Effective January 28, 2019 USCIS will now make premium processing available for these cases. Given the backlog in case processing, premium processing is unlikely to be available for this year's H-1B lottery.
1/17/2019 - February Visa Bulletin Issued
The Department of State has released the Visa Bulletin for February 2019. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart, while family-based adjustment of status applicants must use the "Dates for Filing" chart. The date cutoff for EB-3 India has changed to April 22, 2009, while that of EB-2 India has changed to April 6, 2009.
12/31/2018 - 2018 Was a Record Year for ICE Raids of H-1B Businesses
2018 has been a record year for Homeland Security Investigations (HSI), the division of ICE that is charged with investigating businesses, including H-1B employers, for compliance with immigration laws. From Oct. 1, 2017, through May 4, 2018 HSI opened 3,510 worksite investigations. That number is nearly double the number of investigations opened in Fiscal Year 2017 (October 2016 to September 2017). While more recent statistics have not been published, we expect similarly high numbers for the upcoming year. It is important for H-1B employers to be aware of their rights and responsibilities in case of an ICE raid. The following memo provides useful pointers, but is no substitute for legal advice from an experienced attorney.
12/24/2018 - USCIS Mostly Unaffected by Federal Government Shutdown
Due to the deadlock between Congress and the President over "border wall" funding, much of the federal government has been shut down. However, agencies performing emergency services and self-funded agencies are mostly exempt. The current lapse in annual appropriated funding for the U.S. government does not affect USCIS
s fee-funded activities. There have been some temporary cutbacks to certain programs such as EB-5 and E-Verify.
12/19/2018 - January Visa Bulletin Issued
The Department of State has released the Visa Bulletin for January 2019. USCIS has confirmed that all employment-based adjustment of status applicants and family-based adjustment of status applicants can use the "Dates for Filing" chart. The date cutoff for EB-3 India has progressed to April 1, 2010, while that of EB-2 India remains at May 22, 2009. In the upcoming months, USCIS will most likely revert to the "Final Action Date" for purposes of determing when Form I-485 can be filed.
12/3/2018 - USCIS Proposes Revision to H-1B Cap Procedures
USCIS has issued a proposed regulation that would create a pre-registration requirement for cap-subject H-1B petitions and change the process so that the 65,000 "regular" lottery is run first, followed by the 20,000 "master's" lottery. Under the pre-registration system, which will not go into effect for the April 2019 cap season, cap applicants would pre-register for a lottery. Lottery winners would then file full H-1B cap petitions with USCIS during a designated filing period. The comment period for the proposal ends on January 2, 2019. A similar rule was proposed in 2011 and never finalized.
11/30/2018 - USCIS Clarifies 1-in-3-Year Requirement for L-1s
USCIS has clarified that for L-1 visa purposes, the one-year foreign employment requirement is only satisfied by the time a beneficiary spends
physically outside the United States, except for brief periods in B status. The 3 year clock does not run for any employment in the US on H-1B or E-3 status, provided that it is for the eventual L-1 employer.
11/8/2018 - USCIS Slowly Expanding the Scope of NTA Policy
As reported earlier, USCIS has stated a policy of issuing deportation notices (aka Notices to Appear or NTAs) to visa status applicants whose cases are denied, resulting in unlawful presence. USCIS stated that it would be adopting this NTA policy in stages. The agency has now confirmed that starting November 19, 2018, it will start issuing NTAs in certain denials of Forms I-914/I-914A, I-918/I-918A, I-360, I-730, I-929, and I-485 based on these categories. Employment-based filings are still unaffected for now.
10/30/2018 - USCIS to End Self-Scheduled Info Pass Appointments
Currently, any beneficiary of an immigration process can set up an Info Pass appointment at a local USCIS District Office to resolve case problems. USCIS will soon roll-out the end of self-scheduled Info Pass appointments. Thereafter, immigration beneficiaries must call USCIS Customer Service to voice their concerns. If needed, personnel at the USCIS Contact Center will help schedule an appointment for the beneficiary.
11/14/2018 - December Visa Bulletin Issued
The Department of State has released the Visa Bulletin for December 2018. USCIS has confirmed that all employment-based adjustment of status applicants and family-based adjustment of status applicants can use the "Dates for Filing" chart. The date cutoff for EB-3 India has progressed to January 1, 2010, while that of EB-2 India remains at May 22, 2009.
11/12/2018 - DOL Revises Form 9035 - Labor Condition Application (LCA)
The DOL has announced that a new ETA Form 9035, Labor Condition Application (LCA) will go into effect on November 19, 2018. The existing LCA form remains valid and the public can continue to file it until November 19, 2018. Previously certified LCAs will remain valid, but any new LCA filed from that date onwards will be in the new form. The new form now captures third party worksite data.
10/12/2018 - November Visa Bulletin Issued
The Department of State has released the Visa Bulletin for November 2018. USCIS has confirmed that all employment-based adjustment of status applicants and family-based adjustment of status applicants can use the "Dates for Filing" chart. The date cutoff for EB-3 India has progressed to October 1, 2009, while that of EB-2 India is now at May 22, 2009.
9/28/2018 - USCIS Issues Reminder About Lack of Work Authorization for Cap Gap Students from October 1, 2018
USCIS has issued a reminder that H-1B applicants benefiting from "cap gap" extension of OPT status can stay in the US after September 30, 2018 while the H-1B case is pending, but cannot work after that date until the case is approved.
9/26/2018 - USCIS Provides Update on its Notice to Appear (NTA) Policy
As reported earlier, USCIS has stated a policy of issuing deportation notices (aka Notices to Appear or NTAs) to visa status applicants whose cases are denied, resulting in unlawful presence. It was previously unclear how quickly the NTA would be issued. USCIS has confirmed that, for now, NTAs will not be issued in cases of employment-based petitions or humanitarian applications. Further, denial letters will be issued so applicants have "adequate notice" before an NTA is issued under this policy. While "adequate notice" has not been officially defined, unofficially USCIS has stated that it will not issue NTAs in status-ending denial cases until the 30 days timeframe for motions/appeals has passed, or while a motion/appeal is pending.
9/21/2018 - USCIS Proposal Would Expand Inadmissibility Based on "Public Charge" Grounds
Under long-standing rules, applications for admission to the US (including I-485 applicants) must show that they have enough financial resources to avoid becoming a "public charge." A proposed USCIS rule would expand the definition of "public charge" to include recipients of certain government-funded programs including non-emergency Madicaid, Medicare Part D Low-Income Subsidy Program, Supplemental Nutrition Assistance Program and several housing programs. Importantly, the proposal does not penalize usage of Affordable Care Act Marketplace (aka Obamacare) subsidies or the CHIP program. Having a medical condition that is likely to require long-term treatment may also be a negative factor. I-485 applicants with a public charge problem could be allowed to adjust by paying a minimum $10,000 bond. I-129 and I-539 applicants will have to meet the "public charge" standard, and most H or L professionals who are paid prevailing wages should not be affected. Interested parties have 60 days to comment before the rulemaking process is finalized.
8/31/2018 - Premium Processing Fee Increasing to $1410 from October 1, 2018
USCIS is increasing the premium processing fee from $1225 to $1410, assertedly to keep up with inflation. This 14.92 percent increase goes into effect on October 1, 2018.
8/29/2018 - USCIS Expands Unavailability of Premium Processing
USCIS has announced that premium processing will remain unavailable for all H-1B cap cases (filed in April 2018) until February 19, 2019. Also, starting on September 11, 2018, premium processing will be unavailable for most H-1B cases filed at the Vermont or California Service Centers. A narrow exception applies to cap-exempt cases filed exclusively at the California Service Center. Premium remains available for extensions filed in the Nebraska Service Center.
8/17/2018 - USCIS Website Now Permits Third Party Placement for STEM OPT Students
Early in 2018, USCIS amended its website to suggest that STEM OPT students may not work at third party sites. This policy change received widespread criticism for many reasons, one of which is that USCIS is not permitted to make substantive rule changes through website updates. The agency now appears to have acknowledged this flaw, clarifying that there is no blanket prohibition on STEM OPT students working at third party sites so long as supervision by the actual employer continues.
8/15/2018 - September Visa Bulletin Issued
The Department of State has released the Visa Bulletin for September 2018. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. The cutoff for EB-3 India has retrogressed significantly to January 1, 2003, while that of EB-2 India has also been pushed back to January 1, 2007. Forward progression of dates is expected with the start of the new fiscal year in October.
8/10/2018 - USCIS Slightly Revises Memo on Unlawful Presence for F/J Students
As we reported earlier, under a new USCIS policy, F/J students who are found to be out of status will also be deemed to be "unlawfully present" from the date that the status lapsed. Despite widespread opposition to this policy shift, USCIS has insisted on proceeding with this flawed policy. A revised memo issued today provides a small concession to students: those applying for reinstatement will not be considered "unlawfully present" while the applicaton is pending.
8/8/2018 - USCIS Expands the Scope for Denial Without RFE/NOID
Effective September 11, 2018, USCIS will adopt a revised policy towards the issuance of RFEs and NOIDs. In the past, USCIS would only issue a denial without RFE/NOID for statutory denials (such as a denial where a nonexistent benefit is requested). Under this standard, very few cases were denied without an RFE. However, under the new policy, a case can be denied if it is lacking "initial evidence," which is essentially evidence that is explicitly required under the INA, USCIS regulations, or USCIS form instructions. Even under the new policy, so long as applicants follow form instructions, cases should not be denied without an RFE.
7/30/2018 - NTA Memo Not in Effect Yet
As described earlier, the USCIS's latest NTA memo would place a monumental burden on the immigration framework, by placing thousands of additional people in deportation proceedings. Not surprisingly, USCIS needs to formulate operational guidelines on how to actually enforce the memo. The agency has recently announced that those guidelines have not been finalized yet, which means that the NTA memo is effectively postponed for some time.
7/23/2018 - August Visa Bulletin Issued
The Department of State has released the Visa Bulletin for August 2018. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. The cutoff for EB-3 India has moved to January 1, 2009, while that of EB-2 India remains static at March 15, 2009.
7/6/2018 - USCIS Expands Policy for Issuing Notices to Appear (NTAs)
USCIS has the authority to issue a Notice to Appear (NTA), which requires an alien to appear before an immigration judge to determine whether she should be removed from the United States (colloquially known as "deportation"). In a recent policy memorandum, USCIS has stated that it will issue NTAs in cases where an alien has committed fraud, criminal acts, or other acts showing a lack of good moral character (as part of a naturalization application). Most troublingly, the memo also says that USCIS "will" issue an NTA where a petition or application denial leads a nonimmigrant to fall out of status. An alien who has been issued an NTA cannot just leave the country on her own. Rather, she must obtain voluntary departure or attend the immigration hearing. If this policy is enforced, it will cause havoc for many H and L nonimmigrants whose applications are denied.
6/20/2018 - Trump Abandons Policy of Separating Undocumented Children from their Parents
Bowing to worldwide condemnation, President Trump cancelled his earlier order under which DHS was separating children from undocumented adults who had been charged with illegal border crossing. The new policy requires families to be kept as a unit as they go through immigration/removal proceedings. The locations of previously separated children remains largely unknown in most cases, affecting about 3000 children.
6/19/2018 - July Visa Bulletin Issued
The Department of State has released the Visa Bulletin for July 2018. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. The cutoff for EB-3 India has jumped by 6 months to November 1, 2008, while that of EB-2 India has also progressed to March 15, 2009.
6/12/2018 - USCIS Annnounces Update on Receipt Notices for Form I-751 and Form I-829
Green card holders who apply as spouses of US citizens or under the EB-5 category only receive conditional green card. A separate filing (I-751 or I-829) must be done to lift those conditions. Previously, the receipt notice for that separate filing showed proof of continued GC status for 12 months. Per USCIS, that period is now 18 months.
6/8/2018 - Anti-OPT Lawsuit, Washington Alliance of Technology Workers v. DHS, Lives On
An anti-immigrant group, Washington Alliance of Technology Workers, previously sued DHS claiming that the OPT program should be repealed because DHS did not have Congressional authorization to implement the program. That case was dismissed in district court, but the U.S. Court of Appeals for the District of Columbia has remanded a part of the decision back to the district court. The district court will now re-assess whether the OPT program is statutorily authorized.
6/1/2018 - Members of Congress Urge USCIS to Back Off on H-4 EAD Rescission
Led by Indian-American House Representative Pramila Jayapal, 130 Congressional representatives have signed a letter to USCIS urging the agency to back off from its plan to end the H-4 EAD program. Interestingly, the letter has been issued by a bi-partisan group of representatives that spans the range of political ideology, from extremely progressive (e.g., Jerrold Nadler) to extremely reactionary/conservative (e.g., Peter T. King). The letter has had no immediate effect, as a recent court filing by the Department of Homeland Security indicates that the agency is planning to go ahead with the H-4 EAD repeal as planned.
5/25/2018 - USCIS Proposes Rule to Remove the International Entrepreneur Rule
Under the Obama administration's efforts to spur economic growth, USCIS had created an avenue for certain foreign entrepreneurs to come to the United States and work as parolees: the International Entrepreneur (IE) Rule. In June 2017, the new Trump administration tried to delay the implementation of the IE Rule. In December 2017, a district court vacated that attempt to delay the rule, meaning that the IE rule remains today a valid option for incoming entrepreneurs. USCIS has now proposed a rule to conclusively end the program. Public comments to the proposal will be accepted until June 28, 2018, after which time USCIS will begin the process of rescinding the IE rule once and for all.
5/19/2018 - USCIS Issues Reminder Regarding Loss of OPT Due to Change in Program
USCIS has issued a reminder to F-1 students on Optional Practical Training (OPT) that transferring to another school or beginning study at another educational level (for example, beginning a master
s program after completing a bachelor
s degree) automatically terminates their OPT as well as their corresponding employment authorization document (EAD). A student who successfully starts a new program would not lose status, but would lose the prior OPT.
5/16/2018 - USCIS Completes Data Entry of Fiscal Year 2019 H-1B Cap Subject Petitions
USCIS has completed data entry for all fiscal year 2019 H-1B cap-subject petitions, and will now begin returning all H-1B cap-subject petitions that were not selected.
5/11/2018 - June Visa Bulletin Issued
The Department of State has released the Visa Bulletin for June 2018. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. The cutoff for EB-3 India is May 1, 2008, while that of EB-2 India is December 26, 2008. Retrogression of these categories is expected in the coming months, until a new batch of visa numbers is available in October with the start of the new government fiscal year.
5/10/2018 - USCIS Redefines Unlawful Presence for F, J and M Status Students
USCIS has issued a memorandum redefining when F, J and M students are considered unlawfully present (UPL). In the past, such a student would only accrue unlawful presence after being found out of status by an immigration official (e.g. USCIS or an immigration judge), or after completing a university program and any post-completion period. Now, effective August 9, 2018, an F, J or M student will also accrue unlawful presence the day after the student stops studying or working as required by the student's status, or otherwise engages in an unauthorized activity. This additional factor is significant because whether a particular student has engaged in unauthorized work or ceased a course of study can be a matter of interpretation. The prior standard for unlawful presence involved clear, objective indications that status had ended. The new standard creates uncertainty, which means that students must coordinate with their DSOs to ensure maintenance of status. 6 months of unlawful presence leads to a 3 year bar on re-entry into the US, while 12 months of UPL leads to a 10 year bar.
4/22/2018 - USCIS Website States that STEM OPT Students May Not Work at Third Party Sites
USCIS has updated its STEM OPT website to state that STEM OPT students may not work at third party worksites. The reasoning utilized by USCIS -- that ICE cannot verify employment at third party sites, even if such sites are mentioned on the STEM OPT student's training plan -- is specious at best. Also the website change is a substantive rule that has not gone through proper notice-and-comment rulemaking, which makes it ripe for challenge in federal court.
4/12/2018 - H-1B Cap Reached for Fiscal Year 2019
USCIS has announced that it received 190,000 applications under the H-1B lottery, which allows for up to 85,000 filings. As in the past, the demand for H-1B visas greatly outstrips supply. USCIS conducted the selection process for the master
s cap of 20,000 visas first. All unselected master
s cap petitions then became part of the random selection process for the regular 65,000 cap.
3/20/2018 - Premium Processing Service Suspended for H-1B Cap Cases
In an abrupt announcement, USCIS has announced that it will not accept premium processing for H-1B cap cases until September 10, 2018. Non-cap cases are unaffected by the change.
3/16/2018 - April 2018 Visa Bulletin Issued
The Department of State has released the Visa Bulletin for April 2018. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. EB-3 India has progressed to February 1, 2008, while EB-2 India has moved forward by a week to December 22, 2008.
3/1/2018 - Scheduled Date for Proposed Rule to Cancel H-4 EAD Program Postponed to June 2018
The DHS has confirmed in a statement filed in a civil action by an anti-immigration group (Save Jobs USA v. DHS) that the agency's proposed rule to cancel the H-4 EAD program will not be published until June 2018. Once the proposed rule is published in the Federal Register, all interested parties will be given an opportunity to submit public comment on the proposal. Under the Administrative Procedure Act, the agency will be required to consider substantive comments before finalizing the rule. Though DHS has made its intention to repeal H-4 EAD quite clear, when and under what conditions that will happen remain to be seen.
2/23/2018 - USCIS Issues Memorandum Requiring Contracts and Itineraries for H-1B Petitions Involving 3rd Party Worksites
USCIS has issued a memorandum summarizing its current position on H-1B petitions filed on behalf of employees working at third party sites pursuant to one or more subcontracts. The memorandum repeals a few outdated memos from the mid-1990s that attorneys had used in opposition to challenges from USCIS with respect to third party placement. The memorandum does not contain any significant changes to USCIS's current posture towards third party placements. Still, it could serve as an indication of the agency's desire to subject such cases to higher levels of scrutiny.
2/21/2018 - March 2018 Visa Bulletin Issued
The Department of State has released the Visa Bulletin for March 2018. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. EB-3 India has progressed by a month to January 1, 2007, while EB-2 India has moved forward by a few weeks to December 15, 2008.
1/17/2018 - February 2018 Visa Bulletin Issued
The Department of State has released the Visa Bulletin for February 2018. EB-2 India has progressed slightly from November 22, 2008 to December 8, 2008. EB-3 India has moved forward by a month to December 1, 2006. Also, the Visa Bulletin contains forecasts that EB-3 India will progress by 1 to 3 months and EB-2 India will inch up by several weeks in the next few visa bulletins.
12/30/2017 - President Trump Takes Aim at the H-1B Program
An article in McClatchy reveals that Trump administration officials are considering a policy change that would cancel the 1 and 3 year extensions available for any H-1B worker who has maxed out the normal 6 year allocation for H-1B status. Those extensions are safeguarded under the American Competitiveness in the 21st Century Act (AC21), an act of Congress. Only Congress can repeal AC21, but the Trump proposal is considering whether the phrase "may grant" in AC21 leaves room for USCIS to disregard the 1 and 3 year extension options. We have analyzed the language of AC21 and we are confident that the administration's interpretation is very tenuous and (if implemented) is very unlikely to survive a legal challenge. It should also be noted that the proposal is at a very early stage, and may not even become an official rule proposal by USCIS.
12/18/2017 - January 2018 Visa Bulletin Issued
The Department of State has released the Visa Bulletin for January 2018. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. The Final Action Date cutoff for EB-2 India has progressed slightly to November 22, 2008, while EB-3 India has creeped forward to November 1, 2006.
12/15/2017 - The H-4 EAD Rule is Officially on the Chopping Block
The agency has submitted a proposed rule, entitled "Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization", to the White House's Office of Management and Budget (OMB). After the OMB's review, around March 2018, USCIS will officially propose the rule in the Federal Register. Interested parties will be able to submit comments on the rule through the regulations.gov website. After the comment period is over, USCIS will take several months to consider all of the comments and finalize the rule. Even if the H-4 EAD program is ultimately repealed, it would most likely be at least 9-12 months from now before the repeal takes effect.
12/15/2017 - USCIS Intends to Significantly Revise the H-1B Program
Around October 2018, USCIS intends to issue a rule proposal that would revise the regulatory definition of "specialty occupation" to favor "the best and the brightest" as per the requirements of President Trump's "Buy American Hire American" executive order. The USCIS proposal would also codify the Neufeld Memo's provisions on employer control, with possible changes. Another proposal, to be issued in February 2018, would require pre-registration for filers under the H-1B lottery. That same proposal was first considered in 2011 but was abandoned by USCIS at the time. In any case, none of these proposals will be implemented in time for the April 2018 cap season.
12/14/2017 - USCIS Forced to Reinstate International Entrepreneur Rule
Under President Obama, USCIS issued the International Entrepreneur Rule (IER), which would provide an unlimited number of international entrepreneurs a new avenue to apply for parole, enter the U.S., and use American investments to establish and grow start-up businesses. On January 25, 2017, President Trump issued Executive Order 13767, seeking to cancel the IER. A federal district court has now found that cancellation to be void. The IER remains available to applicants at present, although USCIS plans to formally rescind the rule soon.
11/22/2017 - December Visa Bulletin Issued
The Department of State has released the Visa Bulletin for December 2017. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. The Final Action Date cutoff for EB-2 India is November 1, 2008, while EB-3 India is October 15, 2006.
11/19/2017 - Rumors Abound that USCIS Plans to Repeal the H-4 EAD Rule
A recent article in the San Francisco Chronicle cited unnamed sources who claim that the USCIS is considering a rule that would repeal an earlier rule from two years ago that permitted certain H-4 nonimmigrants to apply for employment authorization (EADs). An anti-immigrant group has challenged the H-4 EAD rule in court. While that lawsuit is likely to fail on constitutional standing grounds, an "amicus" filing by the Trump DOJ in that case has signaled that the administration may seek to rescind the H-4 EAD rule. Unnamed sources in the Chronicle article claim that a draft repeal is being circulated. It should be noted that even in the worst case scenario, it would take at least 6 months or so for USCIS to go through the necessary rulemaking process (required by the Administrative Procedure Act) to effectuate the repeal. And it is far from certain at this time that the repeal will be issued at all.
11/15/2017 - The House Judiciary Committee Passes H.R. 170 - Protect and Grow American Jobs Act
The House Judiciary Committee has passed H.R. 170, the Protect and Grow American Jobs Act, sponsored by Rep. Darrell Issa (R-Calif.). The bill is expected to pass a full House vote, but its fate before the Senate is uncertain. Currently, certain employers that employ a large number of H-1B workers are classified as "H-1B dependent" and must abide by heightened compliance requirements. Those requirements are relaxed for H-1B workers who have a Master's degree or earn over $60,000 per year. The Issa bill would raise the $60,000 figure to $100,000. Contrary to misreporting by certain media outlets, the bill does not establish a $100,000 floor for all H-1B workers.
10/24/2017 - USCIS Rescinds Memorandum Regarding Deference to Prior Approvals in Extension Cases
On April 23, 2004, USCIS issued a memorandum with the common-sense dictate that adjudicating officers should essentially apply a lower level of scrutiny to a nonimmigrant petition where a prior petition involving the same parties and circumstances had already been approved. As part of the recent trend by USCIS to toughen adjudications, that earlier memo has now been rescinded. Each petition will now be considered on its own merits. H-1B workers who have been working for the same employer for many years can expect slightly higher denial rates because of this latest action.
10/13/2017 - November Visa Bulletin Issued
The Department of State has released the Visa Bulletin for November 2017. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. EB-2 China has progressed by three weeks to June 15, 2013. EB-2 India has also progressed by three weeks, to October 8, 2008.
9/28/2017 - USCIS to Resume Premium Processing for All H-1B Case Types
USCIS has unofficially announced that it will resume premium processing for all case types within the next week. Recently the agency had announced the resumption of premium processing for Fiscal Year 2018 cap cases. The upcoming announcement will make all H-1B cases eligible for premium, regardless of type.
9/25/2017 - President Trump Expands Travel Ban
The President has issued a proclamation (similar to an executive order) that will impose new restrictions on entry to the U.S. for citizens of Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. The change goes into effect on October 18, 2017. The Supreme Court had already been considering a challenge to the earlier iteration of the travel ban, and is expected to possibly reject the challenge as moot because the new ban includes non-Muslim majority countries.
9/18/2017 - USCIS to Resume Premium Processing for FY 2018 Cap Cases
USCIS has continued the piece-meal resumption of premium processing service. Now, all Fiscal Year 2018 cap cases can be upgraded to premium processing. The agency plans to resume premium processing for all other remaining H-1B petitions not subject to the FY 2018 cap, as agency workloads permit.
9/15/2017 - October Visa Bulletin Issued
The Department of State has released the Visa Bulletin for October 2017. USCIS has confirmed that all employment-based adjustment of status applicants must use the "Final Action Dates" chart. However, family-based adjustment of status applicants can use the "Dates for Filing" chart. Notably, EB-1 (China) and EB-1 (India) have become current. Also, EB-2 (India) has advanced to September 15, 2008, while EB-3 (India) will stay static at October 15, 2006.
9/5/2017 - Rescission Of Deferred Action For Childhood Arrivals (DACA) Program
The DHS has announced that it has begun phasing out the DACA program. Current DACA recipients will be permitted to retain both the period of deferred action and their employment authorization documents (EADs) until they expire, unless terminated or revoked. However, initial DACA applications filed after September 5, 2017 will not be entertained. Other types of applications are being phased out. The DACA program was established as part of President Obama's plan for immigration relief. The program is now being pared down in response to President Trump's decision to end the program within 6 months.
8/28/2017 - USCIS to Expand In-Person Interview Requirements to Employment-based Cases
Effective October 1, USCIS will begin to phase-in interviews for employment-based I-485 adjustment applications. In the past, I-485 interviews were restricted mostly to family-based cases. The change in policy is in response to President Trump's Executive Order 13780,
Protecting the Nation From Foreign Terrorist Entry Into the United States.
8/18/2017 - USCIS Defines
for Purposes of H-1B ACWIA Fee
The American Competitiveness and Workforce Improvement Act of 1998 (ACWIA) establishes a fee that certain petitioners must pay when filing an H-1B petition. The fee is either $750 or $1500 depending on the size of the petitioner. USCIS has clarified that the employees of the petitioner's parent company do not count for ACWIA purposes, but employees of the petitioner's affiliates and subsidiaries do.
8/14/2017 - September Visa Bulletin Issued
The Department of State has released the Visa Bulletin for September 2017. EB-2 (India) has progressed to August 22, 2008, and EB-2 (China) has changed to May 15, 2013. Meanwhile, EB-3 (China) has remained static at January 1, 2012, while EB-3 (India) has progressed to October 15, 2006. As in prior months, all family-based and employment-based adjustment of status applicants must use the "Final Action Dates" chart.
8/4/2017 - DOL Proposes Longer ETA Form 9035 (Labor Condition Application or LCA)
The Department of Labor has proposed a revised version of ETA Form 9035, more commonly known as the Labor Condition Application (LCA). The new version of the LCA expands on the quantity of information that must be included on the form and contains fuller descriptions of sponsoring employers' compliance obligations. The revised form has been issued in an attempt to comply with President Trump's directive for agencies to better protect American workers and combat visa fraud.
7/25/2017 - USCIS Partially Resumes Premium Processing Service
USCIS has begun a piece-meal approach to resuming H-1B premium processing service, which was suspended when the agency was inundated with filings (in response to long adjudication times for H-1B filings). Premium processing will resume for petitions that are cap-exempt because the petitioner is 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. Premium processing service will be expanded to other petition types in the coming months.
7/19/2017 - USCIS Returns All Unselected FY2018 H-1B Cap Cases
Approximately three months after conducting the lottery for the Fiscal Year 2018 H-1B cap, USCIS has confirmed that all cap rejected cases have been returned to petitioners or their attorneys. The next opportunity to file an H-1B cap case begins on April 1, 2018, for employment starting on October 1, 2018.
7/15/2017 - August Visa Bulletin Issued
DOS has released the Visa Bulletin for August 2017. The bulletin notes that the priority date cut-offs in the EB-2 category for various countries (Worldwide, El Salvador, Guatemala, Honduras, Mexico, and Philippines) have retrogressed, but will return to Current status in October 2017 when a new allocation of visas will be available. The final action date for EB-2 India remains unchanged. If current demand continues, there is a possibility for retrogression in September. As in prior months, all family-based and employment-based adjustment of status applicants must use the "Final Action Dates" chart.
7/5/2017 - DOS Fraud Unit Contacting Employers and End-Clients
There have been reports that the Department of State's Fraud Prevention Unit has been contacting employers and others to request confirmation that a beneficiary will be providing services at the company. The method of contact has been the following email address: email@example.com. Emails from that address are legitimate and should be responded to.
6/26/2017 - Supreme Court to Consider Constitutionality of Trump Travel Ban
On June 26, 2017, the Supreme Court granted certiorari and consolidated two key cases in the travel and refugee ban litigation. In addition, the Court granted a partial stay of the injunctions that had been preventing implementation of Section 2(c), Section 6(a), and Section 6(b) of Executive Order 13780. In effect, certain parts of the travel ban are being enforced until the Supreme Court issues a final decision after fully considering the ban in its October term this year.
6/07/2017 - DOL Proclaims Committment to Combating H-1B Fraud
In response to President's Trump's orders requiring vigorous enforcement of immigration law, the DOL issued a statement of its commitment to detecting visa fraud and improving the efficiency of its programs. The statement also highlighted some recent referrals for criminal prosecution taken by the DOL's Office of the Inspector General in H-1B related actions, which have included instances of:
As always, users of the H-1B program must avoid engaging in any practices that might garner scrutiny from enforcement authorities, and should engage competent legal representation for guidance in any gray areas.
- Falsifying job titles, duties and job locations
- Misrepresenting a company's employer-employee relationship
- Fabricating contractual relationships between companies
- Misrepresenting Fabricating contractual relationships between companies
- Generating fake payrolls
6/16/2017 - USCIS Ombudsman Holding Open Teleconference on H-1B Petition Processing
On June 20, 2017, from 2:00pm to 3:00pm Eastern Time, the USCIS Ombudsman will host a teleconference on H-1B petition processing to discuss pressing issues such as the FY 2018 H-1B cap lottery, petition processing times, the temporary suspension of premium processing, and the March 31, 2017 USCIS guidance memo on computer programmers. RSVP is required for attendance.
6/15/2017 - July Visa Bulletin Issued
DOS has released the Visa Bulletin for July 2017. Most categories remained relatively unchanged. The final action date for EB-3 China retrogressed from 10/1/2014 to 1/1/2012, and the EB-4 India category retrogressed from Current to 8/15/2015. As in prior months, all family-based and employment-based adjustment of status applicants must use the "Final Action Dates" chart.
5/31/2017 - USCIS Confirms Requirements for H-1B Master's Exemption
USCIS has issued a memorandum adopting Matter of A-T- Inc as an Adopted Decision. An Adopted Decision has binding force on all USCIS adjudication officers. The Matter of A-T- Inc case held that in order to qualify for an H-1B numerical cap exemption based upon a master
s or higher degree, the conferring institution must have qualified as a
United States institution of higher education
at the time the beneficiary
s degree was earned.
5/17/2017 - June Visa Bulletin Issued
DOS has released the Visa Bulletin for June 2017. The Final Action Dates for both EB-1 China and EB-1 India retrogressed to January 1, 2012. As in May 2017, all family-based and employment-based adjustment of status applicants must use the "Final Action Dates" chart.
5/5/2017 - USCIS Completes H-1B Lottery for FY 2018
USCIS has announced that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected under the lottery. In the next few weeks, USCIS will be returning all H-1B cap-subject petitions that were not selected.
4/19/2017 - President Trump Issues "Buy American and Hire American" Order
President Trump has issued another immigration-related order, entitled "Buy American and Hire American." The first part of the order directs the federal government to give preference to American companies for federal assistance programs and federal contracting. The second part of the order directs immigration agencies to issue new guidance and rules to protect the interests of United States workers. The order also requests that the agencies help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries. This last provision is of questionable legality as it would require an act of Congress to fully implement.
4/5/2017 - DOJ and DOL Advise H-1B Petitioners of Existing Laws Prohibiting Discriminatory Practices Against U.S. Workers
The Department of Justice issued a warning to H-1B petitioners that they must not discriminate against U.S. workers in hiring, firing or recruiting. The Department of Labor issued a similar directive, reinforcing its commitment to protecting U.S. workers from unfair labor practices by companies sponsoring H-1B workers. Neither statement provides any concrete details on changes in policy or focal points of enforcement.
4/4/2017 - USCIS Announces Measures to Detect H-1B Visa Fraud and Abuse
For the last few years, USCIS has been conducting largely random site visits to verify claims made on certain H-1B filings. These visits are conducted through the USCIS's Fraud Detection and National Security Directorate (FDNS). USCIS now plans to expand its site visits to focus more heavily on cases involving H-1B dependent employers, third party worksites, and new H-1B petitioners.
4/3/2017 - USCIS Revokes December 22, 2000 Terry Way Memo on Computer Programmers
USCIS issued a memo directed at the Nebraska Service Center, which only recently resumed processing H-1B petitions after many years, to clarify that the December 22, 2000 Terry Way memo is obsolete. The Way memo, now rescinded, seemed to suggest that Computer Programmer positions qualify as H-1B "specialty occupations" by default. The new memo encapsulates long-standing policy at the VSC and CSC that an H-1B petitioner must show that an offered Computer Programmer position requires a relevant Bachelor's degree or higher. The memo does not substantively change H-1B law, but may lead to higher RFE (Request for Evidence) rates for filings by Information Technology companies.
3/16/2017 - President Trump's Latest "Muslim Ban" Executive Order Blocked by Federal Court
A federal district court in Hawaii has issued an order blocking certain parts of President Trump's latest "Muslim ban" executive order (EO 13780), which was issued on March 6, 2017 after earlier versions had been rebuffed by other courts. The district court in Hawaii has blocked the latest order's 90-day travel ban on foreign nationals from certain Muslim-majority countries as well as the 120-day ban on the U.S. refugee program, effectively invalidating those provisions.
3/13/2017 - President Trump Issues Executive Order Implementing Heightened Immigration Screening
Following up on his campaign promises to implement "extreme vetting" of visa applicants, President Trump has issued an executive order directing DHS, DOS and other agencies to enhance screening of visa applicants to prevent the entry of foreign nationals who have terrorism connections. The order also suggests that the agencies should strictly enforce all inadmissibility and deportability grounds. The order does not change substantive immigration law. Rather, it may result in the stricter application of current law relating to visa refusals and denials at ports of entry.
3/4/2017 - USCIS Temporarily Suspends Premium Processing Service for H-1B Filings
Because of a heavy backlog in the processing of H-1B cases, starting on April 3, 2017 USCIS will stop accepting premium processing requests for H-1B cases. That means that all FY2018 H-1B cap cases must be filed under regular processing. USCIS indicates that the suspension will last up to 6 months.
2/3/2017 - USCIS Clarifies Automatic EAD Extension Rule
As per the final AC21 regulation that became effective on January 17, 2017, the prior regulation requiring EAD adjudication within 90 days has been repealed. Instead, USCIS will now provide an automatic extension of an expired EAD for up to 180 days while a timely-filed EAD extension (in the certain categories) is pending. USCIS has issued a Fact Sheet further explaining this benefit..
1/28/2017 - President Trump Issues Immigration-Related Executive Orders
Since taking office, President Trump has issued a flurry of immigration-related executive orders. Several of these orders are largely symbolic or of questionable validity given that they require the action of Congress for actual implementation. Others are likely to face vigorous challenge in federal court. For instance, the most recent executive order, from January 27, 2017, has been met with universal condemnation from a variety of political, cultural and social groups. After a lawsuit brought by the ACLU, a federal judge has temporarily invalidated the January 27, 2017 order. The judge's decision also notes that the order is likely to be invalidated once a full decision is made. We will continue to provide updates on this issue. Trumps's immigration-related orders seek to:
As noted above, at least some of these orders are of questionable legal validity at present. Also Trump's plan for "extreme vetting" of aliens would not affect immigration beneficiaries from non-Muslim majority countries like India or China.
- Expand the list of undocumented immigrants who will be subjected to prioritized deportation
- Increase resources for Immigrations and Customs Enforcement (ICE)
- Reduce federal funding for so-called "sanctuary jurisdictions" that refuse to use state law enforcement resources for federal immigration purposes
- Reinstate the Secure Communities Program, which required local law enforcement to share with DHS the identities of people held in local jails. The Program also required local law enforcement to continue to hold undocumented jailees beyond their normal release date if ICE sought their custody
- Direct DHS to start expanding the physical wall on the Southern Border
- Expand "expedited removal" to the maximum extent of the law. The removal procedure had previously applied to border regions
(within 100 miles of any U.S. border) and recent unlawful entrants (within 14 days)
- Suspend the entire refugee program for 120 days
- Require federal immigration agencies to expand efforts to root out fraud and evaluate each applicant's likelihood of
becoming a positively contributing member of society and ability to make contributions to the national
- Indefinitely ban Syrian refugees
- Impose a 90 day ban on travel by all non-US Citizens holding passports from Iraq, Iran, Libya, Somalia, Sudan, Syria, and
Yemen, with additional countries to be possibly added later
- Require in-person interviews for all nonimmigrants, thereby suspending the Visa Interview Waiver Program (VIWP)
1/22/2017 - New Form I-9 Version Goes Into Effect
Effective today, employers must use only the new version of Form I-9, dated 11/14/2016. The new form allows for the including of additional information, such as additional names used by the new hire.
1/4/2017 - AAO Establishes Standard for Medical Licensing Exemption Under H-1B Regulations
The AAO has established a precedent opinion on the applicable standard for physicians of national or international renown under 8 C.F.R. § 214.2(h)(4)(viii)(C). That regulation relates to an exemption from the medical licensing requirement for medical and osteopathics doctors seeking H-1B status.
12/22/2016 - USCIS Repeals NSEERS Religious Profiling Program
In reaction to the 9/11 attacks, the Department of Homeland Security instituted a highly onerous reporting program called the National Security Entry-Exit Registration System (NSEERS). The program subjected adult male nonimmigrants from most Muslim-majority countries to mandatory, routine reporting before DHS officials. DHS put the program on hold in 2011 after essentially admitting that the program was ineffective and unduly burdensome. Given President-Elect Trump's recent rhetoric against Muslim immigrants, many feared that the Trump administration would rejuvenate the dormant NSEERS program. In a suprising move, the Obama administration has repealed the NSEERS regulations in the last days of his presidency. This move will make it slightly more difficult for a Trump administration to conduct selective profiling of nonimmigrants from Muslim-majority countries in the next term.
12/15/2016 - Department of State Releases Visa Bulletin for January 2017
DOS has released the Visa Bulletin for January 2017. Notably, the Bulletin shows progression in the cutoff date for EB-2 (India) by about ten weeks to April 15, 2008. EB-3 (India) remains static at March 15, 2005. The EB-1 category continues to be current for all countries. USCIS has confirmed that Form I-485 applicants in the family-based categories can use the "Dates for Filing" category listed in the Visa Bulletin, whereas employment-based applicants must use the "Final Action Dates" chart.
11/18/2016 - Election of Donald Trump as U.S. President
Despite losing the popular vote, Donald Trump has won the U.S. presidency by gaining the majority of electoral ballot voters after nationwide elections on November 8, 2016. Trump's anti-immigration campaign rhetoric has raised widespread concerns about the fate of the American immigration system. While Trump initially promised to deport the 11 million undocumented people living in the country, post-election he has backed down from that claim to say that only criminal aliens will be deported. The number of deportations is already at a historic high under President Obama, and that trend will continue. President Obama's immigration-related executive orders (including the Deferred Action for Childhood Arrivals system) have already been stymied in court, and are now doomed under the Trump presidency. Trump has also hinted at the revival of the ineffective and now-latent NSEERS system, which from 2002 to 2011 required male nonimmigrants from certain Muslim-dominated countries to register with the Department of Homeland Security.
The President-elect has been equivocal on employment-based immigration issues. In some speeches, he has lambasted the H-1B program, even though his own companies have used the program extensively. Trump's selection of notorious anti-immigrant legislator Jeff Sessions for the post of U.S. Attorney General suggests that the federal government will increase scrutiny on foreign workers and their employers in the coming years. That said, only Congress can make sweeping changes to the country's immigration laws. Many members of Congress remain in favor of immigration, and so the whole-scale dismantling of existing visas and programs is very unlikely.
11/18/2016 - USCIS Finalizes AC21 Regulation
USCIS has released a Final Rule geared towards helping employment-based immigrant visa and H-1B beneficiaries. The Rule takes effect on January 17, 2017. It consolidates many existing agency interpretations and policies into regulations that cover the following areas:
In addition, the Final Rule creates a number of new benefits for certain employment-based immigration beneficiaries:
- Allowing beneficiaries to use the earliest priority date among multiple approved I-140s
- Permitting those with pending professional licenses to apply for H-1B visas
- Defining how H-1B status can be extended post-6th year under AC21
- Describing how I-485 applicants can change their sponsoring employers under AC21
- Defining H-1B portability requirements in "H-1B transfer" situations
- Defining rules for H-1B cap-exemption, recapture and remainder procedures
The new regulations contain a number of additional details not captured in this summary, and interested parties can benefit from a close reading of the rules. [link]
- Permitting E, H, L and O nonimmigrants who have an approved I-140 and who are facing "compelling circumstances" to apply for a renewable 1 year EAD, the usage of which would render them in "authorized stay" but out of status.
- Creating 10 day grace periods before and after authorized validity periods of stay for E, L and TN nonimmigrants
- Creating a 60 day unemployment grace period for E, H, L, O and TN nonimmigrants
- Confirming that an I-140 remains valid for AC21 H-1B purposes (but not for green card purposes) after it has been approved for 180 days, despite withdrawal by the employer
11/15/2016 - USCIS to Apply "Dates for Filing Visa Applications" Cutoffs for Most Categories in December 2016
In December 2016 USCIS will allow Form I-485 adjustment applicants to utilize the "Dates for Filing Visa Applications" chart if the basis for the application is a Family Based immigrant petition in the first through fourth categories, or an Employment Based immigrant petition in the first through fourth categories. Priority date cutoffs remain largely unchanged from November 2016.
10/4/2016 - US Supreme Court Rejects Request for Rehearing in Obama Executive Action Case
The U.S. Supreme Court has rejected the federal government's request to rehear United States v. Texas. In June 2016, the Court effectively blocked Barack Obamas immigration executive actions from taking effect. While the executive actions would not have changed the law (legislation), they attempted to create numerous administrative benefits to certain undocumented people. The case is now headed to the Fifth Circuit, where the federal government is likely to lose given that court's conservative history. [link]
9/15/2016 - USCIS to Apply "Dates for Filing Visa Applications" Cutoffs in October 2016
As we noted earlier, last year the DOS switched to a revised Visa Bulletin format, under which two filing categories would be publicized: "Dates for Filing Visa Applications" and "Application Final Action Dates." USCIS announces each month which cateogry will apply for purposes of I-485 adjustment application filings. The "Application Final Action Dates" cateogry generally features earlier priorty date cutoffs. Thus far, the USCIS has adopted the "Application Final Action Dates" chart every month. For the first time, in October 2016 USCIS will allow adjustment applicants to utilize the "Dates for Filing Visa Applications" chart in determining who is eligible to file a Form I-485 given priority date cutoffs.
8/24/2016 - September Visa Bulletin Issued
DOS has released the Visa Bulletin for September 2016, the last visa bulletin for the fiscal year. The Bulletin shows progression in the cutoff dates for EB-2 (India) and EB-3 (India), which advanced to February 22, 2005, and February 15, 2005, respectively. Reports indicate that USCIS may consider allowing employment and family-based applicants to use the more favorable "Dates for Filing Visa Applications" chart in October 2016.
7/28/2016 - I-601A Provisional Waiver Program Expanded
USCIS has issued a final rule that, effective August 29, 2016, will permit the filing of I-601A unlawful presence waivers by all applicants who can establish extreme hardship to a USC or LPR. In 2013, DHS started allowing certain immigrant visa applicants in the U.S. with six months or more of unlawful presence to apply for waivers of inadmissibility prior to leaving the US. Previously, waivers had to be filed at consulates abroad. The 2013 change applied only to the immediate relatives of U.S. citizens. Now, all IV applicants (regardless of immigration visa category) will be eligible to apply for a provisional waiver.
6/12/2016 - July Visa Bulletin Issued
DOS has released the Visa Bulletin for July 2016. Mexico has reached its congressionally mandated EB-4 visa limit for FY2016. The January 1, 2010 cut-off date applicable for (EB-4) Mexico is the same cut-off date that was imposed earlier in the year in the EB-4 categories for El Salvador, Guatemala, and Honduras.
5/11/2016 - June 2016 Visa Bulletin Issued
DOS has released the Visa Bulletin for June 2016. The bulletin includes information regarding the retrogression of several family-sponsored and employment-based final action dates for June 2016. As in the past, USCIS has advised that for family-sponsored and employment-based filings, the Application Final Action Dates chart in the DOS Visa Bulletin will apply.
5/2/2016 - Data Entry Completed for FY2017 H-1B Cap Petitions
USCIS has confirmed that it has completed data entry of all fiscal year 2017 H-1B cap-subject petitions selected under their computer-generated random lottery. USCIS will now begin returning the over 100,000 H-1B cap-subject petitions that were not selected.
4/14/2016 - USCIS Finalizes New 24 Month STEM OPT Rule
In 2015 an anti-immigration group posing as an Information Technology union successfully challenged the validity of the Department of Homeland Security's STEM OPT program. The District Court for the District of Columbia found various procedural deficiencies in the way that DHS had published the existing 17 month STEM OPT program. Instead of vacating the program outright, the court permitted DHS to revise its STEM rules to comply with the requirements of the Administrative Procedure Act (APA). DHS has now finalized the new STEM OPT rules after considering public comments from thousands of commenters. The new STEM OPT rule goes into effect on Tuesday, May 10, 2016. The new rule expands STEM OPT eligibility to 24 months, in place of the earlier 17 month program. Notably, an employer seeking to hire a STEM student must now file a very detailed training plan on Form I-983 with the student's DSO, in addition to being an E-Verify company. STEM OPT trainees must be paid on par with similarly situated US workers, and must work at least 20 hours per week. DHS will conduct periodic site visits at worksites to ensure compliance. STEM OPT students, employers and DSOs also have various reporting responsibilities under the new rule. For more information on the new requirements for STEM OPT extensions visit this page.
4/13/2016 - H-1B Lottery Conducted for FY2017
USCIS has confirmed that it received around 236,000 H-1B petitions during the recent H-1B cap season, which lasted from April 1, 2016 to April 7, 2016. Under current law, only 65,000 H-1B visas can be issued under the general category. Also 20,000 U.S. Master's exemption visas are available. Given the large number of filings, the chances of lottery selection for cases filed this season are around 33%. USCIS will now begin notifying applicants about which cases met the lottery. USCIS will begin premium processing for selected H-1B cap cases no later than May 16, 2016. Premium processing will continue as usual on non-cap cases.
4/12/2016 - May 2016 Visa Bulletin Issued
DOS has released the Visa Bulletin for May 2016. The Bulletin is largely unchanged from the prior month in most employment-based and family-based visa categories. USCIS has yet to confirm whether it will consider the "Final Action Date" or the "Dates for Filing" category for purposes of accepting adjustment applications. Most likely it will rely on the "Final Action Date" as it has in the past few months. The Visa Bulletin also states that visa retrogression is expected in the near future due to hightened demand.
3/9/2016 - April 2016 Visa Bulletin Issued
DOS has released the Visa Bulletin for April 2016. The Bulletin reflects modest forward movement in various employment-based and family-based visa categories. USCIS has yet to confirm whether it will consider the "Final Action Date" or the "Dates for Filing" category for purposes of accepting adjustment applications. Most likely it will rely on the "Final Action Date" as it has in the past few months.
02/29/2016 - H-1B Quota Likely to be Reached in the First Week of April
The latest estimates suggest that the H-1B quota for Fiscal Year 2017 (i.e. starting October 1, 2016), which opens on April 1, 2016, is likely to be exhausted in the first week of April. In that scenario, all cases received in the first week will be subject to a lottery. More information on F-1 students filing change of status petitions under the H-1B cap can be found here.
01/12/2016 - Filing Fees Increased for Certain Large Nonimmigrant Petition Filers
The Consolidated Appropriations Act, 2016 (Public Law 114-113), signed into law by President Obama on December 18, 2015, increases fees for certain H-1B and L-1 petitioners. These petitioners must submit an additional fee of $4,000 for certain H-1B petitions and $4,500 for certain L-1A and L-1B petitions postmarked on or after December 18, 2015. This affects companies that have over 50 employees, over 50% of which are H or L workers.
11/3/2015 - USCIS Issues Proposed Rule for Revised OPT STEM Program
Earlier this year, a federal district court invalidated the USCIS's STEM OPT program, giving the agency until February 12, 2016 to adopt revised regulations. As expected, USCIS has proposed revised regulations for the OPT STEM program. The proposal contains a number of key differences from the prior version of OPT STEM. First, the proposed regulations expand STEM OPT to 24 months per educational level, and attempt to clarify which degrees qualify as STEM-eligible. Significantly, the regulations also impose a number of regulatory burdens on prospective STEM employers. As before, E-Verify registration is required and the employment opportunity must be directly related to the STEM degree. In addition, an employer would now be required to implement a formal Mentoring and Training Plan. This training would practically be similar to on-the-job training provided at various training institutes. The employer would also be required to attest that the terms and conditions of the STEM practical training opportunity (including duties, hours, and compensation) are comparable to similar opportunities available to U.S. workers. This could establish a de facto requirement that STEM employees be paid the Level 1 Wage under the DOL's OES Wage Data system. Concerned parties have until November 18, 2015 to respond to USCIS about the proposal.
10/15/2015 - USCIS Provides First Update on October 2015 Visa Bulletin Fiasco
Without providing any info on the reasoning behind its reversal on the October 2015, the USCIS has issued an update on how it intends to proceed under the new 2-part Visa Bulletin.
Approximately one week after DOS releases the Visa Bulletin each month, USCIS will post an announcement to inform adjustment of status applicants whether they can rely on the "filing dates" chart or the "final action dates" chart in the Visa Bulletin to determine when they can file their applications. Thus, in some months the "final action date" will determine which I-485 applications can be filed, and in other months the ""filing date" will apply for that purpose.
9/25/2015 - New October 2015 Visa Bulletin Reflects Earlier Cutoff Dates
With the end of the month just a few days away, the Department of State has issued a revised visa bulletin for October 2015. Notable changes to the revision are new cutoff dates for EB-2 India (July 1, 2009), EB-2 China (January 1, 2013), and EB-3 Philippines (January 1, 2010). More information on the revision can be found here.
9/16/2015 - Revised October 2015 Visa Bulletin Allows for Earlier Adjustment Applications
The Department of State, in consultation with the USCIS, has revised the format for Visa Bulletins in the October 2015 version. Under the new format, the bulletin will list both a "Date for Filing Visa Applications and an "Application Final Action Date." The former date will generally be earlier than the latter. The "Application Final Action Date" refers to the date when USCIS will finalize and approve an adjustment application or immigrant visa application because a visa number has become available. In addition, in certain months designated by USCIS, aliens will be able to file I-485 applications if their priority dates are before the "Date for Filing Visa Applications. In other months (and as before), I-485 applications can only be filed if the applicable priority date is before the "Application Final Action Date." A fuller discussion on the revised Visa Bulletin format and its impact on technology companies and their employees can be found here.
8/13/2015 - D.C. District Court Temporarily Invalidates STEM OPT Program
In April 2008, the USCIS passed an interim final rule creating the STEM Optional Practical Training (OPT) program for F-1 students graduating with a degree in science, technology, engineering, or mathematics (STEM). Since then, thousands of students have availed of the STEM OPT program to secure employment. On August 12, 2015, an anti-immigration union consisting of just 3 members succeeded in convincing the D.C. District Court to overturn the STEM OPT program because the April 2008 interim final rule had not followed the proper procedure for rulemaking under the Administrative Procedure Act. Even so, the judge stayed the effect of the decision until February 12, 2016, during which time the DHS can re-submit the 2008 Rule for proper notice and comment. There is little practical significance to the court decision as the STEM OPT program continues unaffected until February 12, 2015, and the DHS will almost certainly propose and finalize a rule before then. In fact, the decision may prove to be helpful to F-1 students as USCIS could use the notice-and-comment procedure to expand benefits under STEM OPT.
7/22/2015 - USCIS Provides Final Guidance on When An Amended Petition is Required Given Worksite Changes
As we reported earlier, under the AAO's recent Matter of Simeio Solutions decision, many worksite changes will require the filing of an amended H-1B petition prior to the change. USCIS has now issued final guidance that creates a phased-in compliance period for H-1B amendment filings. If an H-1B employee shifted to a non-commutable location not covered by a prior H-1B petition before April 9, 2015 (the date of the Simeio decision), then an amended petition is not required. If the shift occurred between April 9, 2015 and August 19, 2015, petitioners have until January 15, 2016 to file an amended petition. Any shift that occurs after August 19, 2015 must be preceded by an H-1B amendment. If an amended petition is not filed for affected employees within these guidelines, the company and its employees will be out of compliance with USCIS policy and would thus be subject to adverse action.
7/10/2015 - August 2015 Visa Bulletin Issued
DOS has released the Visa Bulletin for August 2015. The Bulletin reflects forward movement in various employment-based and family-based visa categories. It also states that the EB-3 category is unlikely to progress before the new fiscal year, which starts October 1, 2015.
6/29/2015 - USCIS Begins Rulemaking Process on Revisions to I-485 Adjustment of Status
The USCIS has begun the process of revising rules relating to the adjustment of status (I-485) process. First, USCIS will issue a proposed version of the rule and solicit public comment. That is tentatively expected to occur around October 2015. Based on the public's comments, USCIS will then finalize the rule (or possibly abandon the rule altogether). The proposed rule is expected to allow for early filing of I-485 applications by beneficiaries of approved I-140 immigrant petitions. The rule will also contain an elucidation of the "same or similar" requirement that applies in AC21 permanent portability case.
6/23/2015 - Department of State Visa System Experiencing Technical Problems
The Department of State has been unable to issue visas to travelers around the world for two weeks because of a computer hardware failure that remains unresolved. Normally around 50,000 visas are issued per day, so the technical glitch is causing a considerable backlog in visa applications. The issue is expected to remain unresolved for at least another week. Visas for medical or humanitarian purposes are still being processed. Humanitarian parole without a visa is also an option.
6/15/2015 - July 2015 Visa Bulletin Issued
DOS has released the Visa Bulletin for July 2015. EB-2 (India) remains at October 1, 2008, while EB-3 (India) has progressed slightly to February 1, 2004. EB-2 (China) has shown more significant progression, to October 1, 2013.
5/22/2015 - USCIS Provides Draft Guidance on When An Amended Petition is Required Given Worksite Changes
As we reported earlier, the AAO's recent Matter of Simeio Solutions decision has resolved the previously-unsettled question of whether worksite changes require an amended H-1B petition or just a new LCA filing. In an important web alert on the decision, USCIS has reiterated that an employer must generally file an amended petition before placing an H-1B employee at a worksite requiring a new LCA. Any H-1B employees who are currently working at a worksite not covered by a prior H-1B petition must have an amended petition filed by August 19, 2015. Failure to meet that deadline renders the H-1B employee out of status. After that date, an employer must file an amended petition before placing an H-1B employee at a new worksite requiring a new LCA, with limited exceptions. Employees are permitted to begin working at the new worksite on or after the amended petition's filing date.
5/21/2015 - USCIS Issues FAQs on H-4 EAD Processing
USCIS expects over 150,000 EAD applications to be filed given the new regulation allowing for H-4 EADs. While the Final Rule authorizing those filings serves as a good source of information on how those cases will be filed, the USCIS has issued an FAQ to provide further information on case handling. One notable point is that, as with L-2 EADs, H-4 EADs must be filed by someone in the United States. Travel abroad is permissible but may lead to practical issues with biometrics scheduling and timely receipt of mail.
5/27/2015 - Federal Appeals Court Permits Injunction Against Obama Immigration Measures
The Fifth Circuit Court of Appeals has decided not to lift an earlier stay implemented by a federal district court in Texas. The stay has put the much-touted Obama immigration plan on hold. A final decision on the lawsuit, which was brought by a total of 26 states, remains pending at the Fifth Circuit. The lawsuit claims that President Obama's proposed changes to immigration policy are illegal since they are essentially legislative changes that were not vetted by Congress. The case is likely to go before the Supreme Court for resolution. The rule allowing H-4 EADs is unaffected by the stay since it was passed as a regulation under the usual notice-and-comment rulemaking procedure.
5/19/2015 - USCIS Suspends Premium Processing for H-1B Extension Cases
Because of the large number of H-4 EAD cases that are expected to be filed on or after May 26, 2015, USCIS has suspended premium processing for H-1B extension cases from May 26, 2015 until July 27, 2015. Cases submitted for premium processing prior to May 26, 2015 will probably continue to be processed within the 15-day calendar period. If they are not, the premium fee will be refunded.
4/13/2015 - H-1B Lottery Conducted for FY2016
USCIS has confirmed that it received around 233,000 H-1B petitions during the recent H-1B cap season, which lasted from April 1, 2015 to April 7, 2015. Under current law, only 65,000 H-1B visas can be issued under the general category. Also 20,000 U.S. Master's exemption visas are available. Given the large number of filings, the chances of lottery selection for cases filed this season are less than 50%. USCIS will now begin notifying applicants about which cases met the lottery. USCIS will begin premium processing for selected H-1B cap cases no later than May 11, 2015.
4/13/2015 - Visa Bulletin for May 2015
DOS has released the Visa Bulletin for May 2015. EB-5 China went from being current in April to having a May 1, 2013 cut-off date, and EB-2 India progressed by more than seven months to April 15, 2008. The other categories remain largely unchanged.
4/9/2015 - AAO Decides that Amended H-1B Petitions Are Required for Certain Worksite Changes
Resolving an issue that had been lingering for a few years, the AAO has decided in Matter of Simeio Solutions, a precedent decision, that a change in the place of employment of an H-1B worker will require an amended H-1B petition if the new worksite is outside the commutable distance of the old worksite listed on the prior Labor Condition Application (LCA) filed for the worker. A new worksite within the same geographic area as that identified on a prior LCA will not require an H-1B amendment.
2/24/2015 - USCIS Expands Work Authorization to Select H-4 Spouses
Pursuant to a proposed rule issued last year, the USCIS will begin accepting applications for H-4 work authorization starting on May 26, 2015. To qualify, the H-1B spouse must have an approved I-140 or must have extended H-1B status beyond the normal 6 year limitation.
2/10/2015 - March 2015 Visa Bulletin Released
The March 2015 Visa Bulletin shows forward movement in the EB-2 India category, which has moved from from September 1, 2005, to January 1, 2007. The Visa Bulletin also reflects slight forward movement in most other visa categories.
11/20/2014 - President Obama Announces Sweeping Changes to Various Immigration Procedures
On November 20, 2014 President Obama announced numerous changes to current immigration policy, in an effort to address the failure of Congress to pass comprehensive immigration reform. The planned changes include the following:
Each of the programs will have various start dates. For instance, the expansion of DACA will begin in 90 days. On the far end, new regulations allowing H-4 spouses to work, clarifying L-1B standards, and retooling the immigrant visa system will only go into effect after the notice-and-comment rulemaking process, which will take several months at least. Also, there are chances that opponents of immigration reform will stall the implementation of these changes via federal court challenges. Prospective clients seeking to take advantage of these benefits should contact our firm at the number to the left. Click the following link for a fuller summary of the changes.
- Removal of the upper-age limit to the DACA program
- Expansion of Deferred Action to certain parents of U.S. citizens and lawful permanent residents (DAPA)
- Expansion of provisional waivers for unlawful presence to spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens
- Changes to business visa policy, including expansion of OPT options, work authorization for H-4 spouses, clarification of L-1B standards, and relaxation of the "same or similar" language under AC21 portability
- Minor changes to naturalization processing
11/12/2014 - National Visa Center No Longer Requiring Originals
The National Visa Center (NVC) acts as a gatekeeper to U.S. consulates, requiring that visa applicants submit certain background documents to proceed with case processing. In the past, many visa applicants were perturbed by the NVC's routine request for the submission of original civil documents. Instances of the NVC losing originals were not uncommon. In a reversal of policy, the NVC will now accept photocopies of civil documents.
10/10/2014 - Forward Movement in Visa Bulletin Except for EB-2 (India)
The November 2014 Visa Bulletin has been released. The cut-off date for the employment-based, second preference category for India has retrogressed from May 1, 2009 to February 15, 2005. Also, there is slight forward movement in several other categories.
9/11/2014 - Visa Bulletin - EB-2 India Priority Date Update
Despite reports to the contrary, the cut-off for EB-2 (India) is effectively May 1, 2009 under both the September and October 2014 Visa Bulletins. True, because of heavy demand, visa numbers for EB-2 (India) have now become unavailable in the month of September 2014. Even so, USCIS will NOT reject EB-2 (India) cases having a priority date of May 1, 2009 if such cases are filed in September. Rather, such cases will be held for processing until a new batch of visa numbers becomes available on October 1, 2014. The October 2014 cut for EB-2 India will remain at May 1, 2009. The EB-2 India category is expected to retrogress significantly in subsequent Visa Bulletins, to a date as early as 2005.
8/12/2014 - September 2014 Visa Bulletin Released
The September 2014 Visa Bulletin shows slight forward movement in most family-based categories and in the employment-based, second-preference India and employment-based, third preference and Other Worker categories for the Philippines.
7/9/2014 - August 2014 Visa Bulletin Shows Slight Progress in Key Categories
The DOS Visa Bulletin for August 2014 shows slight advancement in various visa categories. DOS has confirmed that it expects priority dates for EB-2 India to "retrogress significantly" in the coming months.
5/12/2014 - USCIS Issues Proposed Rule Permitting Employment of H-4 Dependent Spouses
The USCIS has issued a proposed rule in the Federal Register that, if finalized, would allow H-4 nonimmigrant spouses to seek work authorization provided that the principal H-1B nonimmigrant is in the process of seeking lawful permanent resident status through employment. Public comments to the rule are due by July 11, 2014.
5/8/2014 - June 2014 Visa Bulletin Shows Significant Retrogression in Key Categories
The June 2014 Visa Bulletin has been released. The cut-off date for all family-based F-2A categories retrogressed due to heavy demand. The EB-3 category shows retrogression in all sub-categories, except for the Philippines. The EB-3 China category retrogressed from October 1, 2012 to October 1, 2006, and the "other worker" China category retrogressed from October 1, 2012 to January 1, 2003.
4/7/2014 - USCIS Reaches FY 2015 H-1B Cap
The USCIS has announced that it has received more than enough H-1B cap filings for fiscal year 2015, which runs from October 1, 2014 to September 30, 2015. A computer-generated process will randomly select the number of petitions needed to meet the caps of 65,000 visas for the general category and 20,000 under the advanced degree exemption. USCIS will reject and return filing fees for all cap-subject petitions that are not selected, unless found to be a duplicate filing. All petitions not selected under the Master's exemption will become part of the random selection process for the regular 65,000 limit.
2/27/2014 - March 2014 Visa Bulletin Largely Unchanged from February 2014
The Visa Bulletin for March 2014 reveals few changes in employment-based immigrant visa cutoffs. The priority date markers for Indian nationals remain virtually the same as in February 2014. The availability date for EB-2 (China) has progressed to February 15, 2009, and EB-3 (China) has changed to September 1, 2012. The Bulletin also contains projections for the coming months. No forward movement is expected for EB-2 India. The EB-3 categories are also expected to remain stagnant due to increasing visa demand.
1/20/2014 - Department of State Modifies Personal Interview Requirement for Certain Visa Applications
The Department of State has finalized rules for waiver of visa under certain circumstances. Under 9 FAM 41.102 Note 3.3a, a consular officer can waive the visa interview requirement for applicants seeking to renew any nonimmigrant visa within 12 months of expiration of the initial visa in the same classification. Also, for certain categories, interview waivers are available for nonimmigrant visa renewals up to 48 months after expiration of the initial visa in the same classification.
12/27/2013 - January 2014 Visa Bulletin Shows Continued Stagnation of Visa Numbers
The Visa Bulletin for January 2014 highlights the need for immediate immigration reform. Visa demand continues to outstrip supply, and consequently there has been little progress in the Visa Bulletin. The priority date cutoff for EB-2 India is 11/15/2004 and EB-2 China is 12/8/2008. The cutoff for EB-3 India has remained static at 9/1/2003.
10/21/2013 - USCIS Will Excuse Late H Status Extensions Attributable to Government Shutdown
The government shutdown, which lasted from the start of the fiscal year 2014 (October 1, 2013) to October 17, 2013, debilitated operations at many federal agencies. The Department of Labor's operations were severely affected, leading to suspension of Labor Condition Application (LCA) and Labor Certification processing. As a result, many individuals on H-1B, H-2A and H-2B status whose status was expiring were unable to file timely extensions with USCIS, as an LCA certification is a requisite to filing. USCIS has now confirmed that it will excuse delayed filings attributable to the government shutdown.
9/11/2013 - October 2013 Visa Bulletin Remains Largely Similar to September 2013 Bulletin
The September 2013 Visa Bulletin saw forward progress in various visa categories relative to bulletins from the beginning of the year. However, despite the start of the new fiscal year, the October 2013 bulletin appears to remain mostly steady in its allocation of priority dates. The F2A category is no longer current, instead showing a September 2013 priority date cutoff. EB2 India remains static at 6/15/2008, while EB-2 China has progressed to 9/15/2008.
8/5/2013 - Department of State Institutes Immigration Benefits for Same-Sex Spouses
On June 26, 2013, the Supreme Court held Section 3 of the Defense of Marriage Act (DOMA) unconstitutional. That decision has many immigration-related implications for same sex couples. The Department of Status has instructed consular officers to review visa applications filed by a same-sex spouse in the same manner as those filed by an opposite-sex spouse. A same-sex marriage is now valid for immigration purposes, as long as the marriage is recognized in the "place of celebration."
6/27/2013 - U.S. Senate Passes Immigration Reform Bill (S.744)
After years of speculation and discussion, the Senate has finally passed a comprehensive immigration reform bill by a vote of 68-32. Click here for our summary and analysis of the key provisions of the bill as they affect IT companies. The bills allocates billions for border security, creates an avenue for undocumented workers to acquire temporary legal status, requires all employers to use E-Verify, and increases the number of visas available to high-tech workers trained in the sciences, technology, engineering or math (STEM) categories. Though passed, the bill is not yet law. Republicans in the House of Representatives have expressed their opposition to the bill. Bills must pass both chambers in order to become law.
6/26/2013 - U.S. Supreme Court's decision in Windsor v. United States Opens Avenue for Same-Sex I-130 Immigrant Petitions
In a historic 5-4 vote, the U.S. Supreme Court has overturned California's Defense of Marriage Act (DOMA), which had sought to ban gay marriage in the state. USCIS has confirmed that this opens up the possibility of immigrant petition filings by same-sex couples under the Immediate Relative (IR) category.
5/2/2013 - CBP Begins Issuing Paperless I-94s
Under new CBP regulations, separate I-94 forms will no longer be issued for nonimmigrants arriving by air and sea. Instead, CBP officers will place an admissions stamp on the passport of the arrival. That stamp can be used as proof of admission, visa category and duration of stay. Aliens can also print a copy of the I-94 from the CBP website (www.cbp.gov/I94) after 24 hours of admission. For form filing purposes, USCIS will consider either the paper I-94 printed from the CBP website, or a copy of the admission stamp from the alien's passport.
03/26/2013 - H-1B Quota Likely to be Reached in the First Week of April
The latest estimates suggest that the H-1B quota for Fiscal Year 2014 (i.e. starting October 1, 2013), which opens on April 1, 2013, is likely to be exhausted in the first week of April. In that scenario, all cases received in the first week will be subject to a lottery.
02/4/2013 - Department of State's February 2013 Visa Bulletin Shows Limited Advancement
The February 2013 Visa Bulletin shows currency for the EB-2 category. The EB-2 (India) category has not changed since the October 2012 Visa Bulletin. EB-3 (India) is still severely backlogged at November 15, 2002. The EB-2 and EB-3 (China) categories have shown modest advancements of about one and two months, respectively.
11/12/2012 - DOL Makes Accommodations for Hurricane Sandy
The Department of Labor has stated that it will entertain requests for extensions of time on PERM and H visa cases an individual basis for those affected by Hurricane Sandy and related service disruptions.
11/21/2012 - Department of State Modifies Personal Interview Requirement for Certain Visa Applications
The Department of State has created two mechanisms, "interview waiver" and "dropbox" whereby visa applicants in India can avoid attending visa interviews under certain circumstances. While the "interview waiver" program would still require fingerprinting, the "dropbox" program can allow for visa applications without any physical presence requirement. The latter program is especially useful for holders of expired H-1B visas who are currently in the United States.
09/26/2012 - October 2012 Visa Bulletin Shows High Visa Demand, Backlogs
The Department of State has released the latest Visa Bulletin, for October 2012, which shows continued high demand levels for visas by Indian and Chinese nationals. For instance, the EB-2 general cutoff is January 1, 2012, whereas EB-2 (India) is September 1, 2004 and EB-2 (China) is July 15, 2007. EB-3 wait times continue to suffer from even more significant lag.
07/24/2012 - USCIS Steps Up Denials of Post-completion OPT Applications
F-1 students applying for post-completion OPT have numerous requirements and deadlines to be aware of. USCIS has recently increased denials for applications falling short of these requirements. Applicants are required to submit their applications between 90 days prior to and 60 days after the program end-date, and must file within 30 days of the DSO's OPT recommendation on Form I-20.
06/15/2012 - DHS Institutes Next Best Thing to the DREAM Act
While the DREAM Act did not pass in Congress, DHS has annouced that it will not deport certain eligible youth who are undocumented. Eligible individuals must be between 15-30, have entered before age 16, must have a minimal criminal record, have maintained residence for 5 years, and be a veteran or have (or be pursuing) a high school degree.
06/12/2012 - FY2013 H-1B Cap Closed
USCIS has confirmed that as of June 11, 2012, the FY 2013 H-1B cap was met, both for regular H-1B cases and the 20,000 U.S. Master's degree allocation. USCIS will reject petitions subject to the cap for H-1B specialty occupation workers seeking an employment start date in FY 2013 that are received after June 11, 2012.
05/14/2012 - July 2012 Visa Bulletin Released
The Department of State has released the July 2012 Visa Bulletin, which states that visa numbers for the EB-2 (China and India) categories will remain unavailable until the next fiscal year, which starts October 1, 2012. Other EB-2 categories may also experience retrogression before the start of the new fiscal year due to heavy demand.
1/30/2012 - Progression of Priority Dates for the EB-2 (India) Visa Category
Recently there has been significant progression in visa numbers for the EB-2 (India) category. Each of the last 2 months saw a 1 year jump forward in the priority date. The Department of State has informally confirmed that the Visa Bulletin for March 2012 will only show advancement of a couple of months. Priority dates will remain stable and possibly retrogress through the end of the fiscal year.
11/24/2011 - The FY2012 H-1B Cap Has Closed
USCIS has confirmed that the last day for acceptance of cases under the H-1B cap for Fiscal Year 2012 was November 22, 2011. Both the regular H-1B cap and the U.S. Master's exemption allocation have been exhausted. The cap reopens on April 1, 2012 for filings effective October 1, 2012.
10/6/2011 - NLRB Mandates Notice Posting Regarding Employee Union Rights
The National Labor Relations Board (NLRB) has mandated that most private sector employers post a notice advising employees of their rights under the National Labor Relations Act. The notice is inapplicable to agricultural, railroad and airline employers, as well as very small employers that conduct so little business that they have a negligible effect on interstate commerce. The deadline for compliance was initially set at November 14, 2011, but that deadline has been postponed till January 31, 2012 to allow the NLRB to conduct "enhanced education and outreach to employers."
8/2/2011 - USCIS Revises FAQ's on Establishing the "Employee-Employer Relationship" in H-1B Petitions
Shortly after the issuance of the Neufeld Memo in January 2010, the USCIS issued a set of FAQ's addressing how an H-1B Petitioner could establish that it had the requisite employer-employee relationship with the H-1B Beneficiary. These FAQ's have been revised with additional information. As before, the emphasis is on documentary evidence establishing the employer's right to control the employee in the employee's performance of duties.
5/19/2011 - List of OPT-STEM Majors Expanded
ICE has expanded the list of eligible majors for F-1 students to work under the STEM program, which allows for 17 month extensions of OPT (Optional Practical Training) status.
2/18/2011 - Export Control Requirements for I-129 Petition Filers
USCIS now requires employers filing Form I-129 for H, L, and O visa status on behalf of foreign nationals to certify that they have (1) reviewed the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR), and (2) have made a determination as to whether or not an export control license is required to release any controlled technology or technical data to the foreign national. If an export license is required to be obtained before such release, the employer must attest that the worker will not be exposed to covered technologies without first obtaining an export license covering the foreign worker. Employers can confirm whether they require an export license by directly contacting the Bureau of Industry and Security, U.S. Department of Commerce.
1/29/2011 - Consulate General of India Acquires Trickles of Information from ICE Regarding Tri-Valley University Raid
The Consulate General of India has consulted with U.S. Immigration and Customs Enforcement (ICE) regarding its handling of the legal status of students at Tri-Valley University, which was raided last week for operating as a diploma mill. It appears that ICE will be issuing a detailed advisory within the next few days. Many students are already in deportation proceedings. It appears that the majority of students who are subject to deportation proceedings will have the option of asking for an order of voluntary departure, which would allow subsequent return to the US in most cases. Transfers to another school in F-1 status will not be possible. ICE has also set up a phone number (415-844-5320) and email address (SFRHSIFraud@dhs.gov) for affected students to inquire about their cases. We strongly recommend that students retain legal counsel before communicating with ICE.
1/27/2011 - USCIS Reaches the H-1B Cap for Fiscal Year 2011
USCIS has confirmed that Wednesday, January 26, 2011 will be the final receipt
date for new H-1B specialty occupation petitions requesting an employment start date in FY2011 (which runs from October 1, 2010 to September 30, 2011). Petitions received after January 26, 2011 will be rejected, and cases received on that date will be subjected to a random lottery for inclusion into the cap based on the remaining H-1B cap numbers. The next opportunity for an employer to file an H-1B cap petition will be on or after April 1, 2011, for employment beginning no earlier than October 1, 2011.
8/29/2010 - New Law Substantially Increases H-1B and L-1 Fees for Certain Large Filers
A new law passed by Congress, Public Law 111-230, has increased the fraud fee for H and L filings by $2000 and $2250 (respectively) for companies that have over 50 employees and are more than 50% comprised of H and L employees. The heightened fees are deemed to be effective for all filings done on August 14, 2010 and thereafter, and will remain in effect until September 30, 2014. As with the regular fraud prevention and detection fee, the new fee only applies in cases where an initial grant of status is sought or in change of employer situations for current H/L workers.
6/10/2010 - USCIS-FDNS Site Visit Statistics Released
The USCIS's Office of Fraud Detection and National Security (FDNS) has released statistics and basic information on the investigations that have been conducted between 7/29/2009 - 6/1/2010. During this time period, only 2 cases were referred to US Immigration and Customs Enforcement (ICE) for criminal prosecution. However, in 9% of the total 15,733 cases, the applicable Service Center issued a Notice of Intent to Revoke/Deny the approved petition due to some suspected technical violation or indication of fraud. Unfortunately, all site investigators are currently independent contractors, not government employees. Our experience has been that many investigators may be unfamiliar with immigration regulations and H-1B employers' actual responsibilities under the law. H-1B petitioners are reminded that they are constitutionally privileged with the right to have an attorney present during a site investigation. An H-1B employer under investigation should postpone answering questions until its attorney is present to help avoid unfair assumptions or misinterpretations by the investigator.
10/31/2010 - USCIS Filing Fees to Increase Effective November 23, 2010
Effective November 23, 2010, increased USCIS filing fees will kick in for many types of filings. Fees are being raised by a weighted average of approximately 10 percent. A list of the old and new fees can be found at the USCIS website.
8/12/2010 - US Senate Passes Border Surveillance Bill
The US Senate has passed a bill allocating additional money towards enhanced border security during an unusual summer session. An amendment to the bill would increase the fraud fee for H and L filings by $2000 and $2250 (respectively) for companies that have over 50 employees and are more than 50% comprised of H and L employees. A preliminary version of the bill has already been passed by the House, and so it looks like the bill will become law when it is reintroduced after September 10.
5/30/2010 - Employer Verification by USCIS under the VIBE System
USCIS's Office of Service Center Operations (SCOPS) handles the processing of employment-based immigrant and nonimmigrant petitions. As part of its processing, SCOPS determines whether the petitioning company in a particular case is a financially viable entity. Thus far, USCIS has relied on evidence provided by the petitioner to assess financial viability. While this has meant that petitioners are sometimes burdened by expansive Requests for Evidence (RFEs) regarding company information, at least this process has allowed petitioners to define the content and scope of the evidence considered. As part of an initiative called Verification Initiative for Business Enterprises (VIBE), USCIS is moving away from employer-supplied information for purposes of assessing financial viability. Instead, VIBE will utilize information collected about the petitioner by Dun & Bradstreet, a private data collection firm. During petition processing, companies will still be able to provide evidence of their own choosing in response to RFEs, but details that conflict with their D&B entries might be treated with greater scrutiny. Therefore, it is essential for all petitioners to check their D&B listings to ensure that all information is accurate. While D&B promises that companies can correct mistaken information in their D&B listings free-of-charge, it can take up to 30 days to register with D&B, and further time for adjust incorrect details. If a petitioner faces an RFE citing incorrect D&B information, that petitioner may not have enough time to edit its D&B listing and still respond to the RFE in a timely fashion. Accordingly, it is imperative for all employment-based immigrant and nonimmigrant petitioners to check their D&B listings for accuracy and to take the appropriate steps to correct errors.
3/26/2010 - Listening Session Held by USCIS Foretells Changes to Neufeld H-1B Memo
USCIS has recognized the public furor surrounding the issuance of its January 8, 2010 memorandum on employer control in the H-1B context. Today CIS held its second public session on the implications of the memo, this time focusing on contractors in the health care industry. Notably, USCIS officials stated that more formal guidance or possibly a revision of the memorandum was forthcoming. There was also a suggestion that rates of H-1B approvals have been unchanged since issuance of the memo. Perhaps most significantly, officials recognized that many adjudicators have been applying improper standards of evidence in their Requests for Evidence (RFEs). The proper evidentiary standard for nonimmigrant petitions is "preponderance of the evidence," which can be translated in layman's terms to "having just above a 50% chance of being true." In recent months many RFEs have requested "clear evidence" of eligibility, which is a higher and inapplicable standard. In other cases, the evidentiary standard is not stated, but the tone of the RFE and its ultimate disposition betray an overly exacting standard. USCIS headquarters will be issuing guidance to adjudicators at the Service Centers to treat RFEs as tools to help petitioners cure any deficiencies in their petitions, and not as de facto precursors to denials.
2/18/2010 - USCIS Clarifies Certain Aspects of the January 2010 Neufeld Memo on Employee Control in the H-1B Context
There has been a large amount of speculation and fear surrounding the issuance of the January 8, 2010 memorandum from Donald Neufeld. One major question has been whether the USCIS intended to cast a negative light on H-1B filings by staffing companies, by suggesting that such companies do not qualify as "employers" for H-1B purposes. To address these concerns, USCIS held a public "Collaboration Session" on February 18, 2010. During the session, business owners, attorneys and members of the public raised their concerns about the memorandum. The USCIS officials did not address most of the points raised, as the purpose of the session was for USCIS to get a sense of the public's concerns and then to decide on any requisite policy changes. However, USCIS leaders did note a few important points:
During the session, USCIS did confirm that it is receptive to pressures put upon it by members of Congress, even absent the passage of specific immigration legislation. This is a telling indication of the need for concerned immigration stakeholders to mobilize their Congressional Representatives and Senators to shift USCIS policy onto a more favorable path. There will be another collaboration session on the same topic on March 1. Interested parties can register at the following website.
- The purpose of the Neufeld Memorandum was not to target IT companies or to put an end to the consulting/staffing business model.
- The memo, which took around a year to formulate, was not issued as a response to allegations of widespread fraud in the H-1B program.
- The memo's purpose was to create a uniform policy regarding employers/employees, and thereby put an end to the inconsistent RFEs and denials that have been issued by the Service Centers on this topic.
- Since the issuance of the Neufeld memo, all H-1B denials have required supervisor approval prior to being issued. Normally supervisor approval is only required in Motions to Reopen (MTRs). This policy was instituted by USCIS headquarters to avoid improper denials based on a misinterpretation of the Neufeld memo.
- As we predicted earlier, recent turnaways by CBP officers of H-1B visa holders at Newark and other ports of entry have not been caused by the issuance of the memo. Those cases involved suspected fraud by the H-1B petitioner or the employee.
1/15/2010 - USCIS Explains its Current Policy Vis-a-vis United States Employers; IT Consulting Firms Possibly Affected
The USCIS has released a memorandum clarifying its position on employer-employee relationships in the H-1B context. More specifically, the memorandum explains the USCIS's interpretation of "United States employer," which is a term that is defined at 8 C.F.R. Sec. 214.2(h)(2)(i)(A). USCIS will determine whether a particular petitioner qualifies as a United States employer on a case-by-case basis, taking into account a number of common law factors. Basically, the touchstone of employment is control over the manner and means by which work is performed. The factors specified in the memo are similar to the factors used by the IRS in determining whether a worker is an employee or an independent contractor. The practical significance of the memorandum is two-fold. First, USCIS has slyly avoided precedent decisions allowing so called H-1B "self petitions." Under the current interpretation, a proprietor of a business will no longer be able to sponsor himself/herself for an H-1B visa through the company since there is no true control by the company over the individual. Secondly, the memo states that IT consulting companies that place their payroll employees at third party sites may need to establish that they qualify as U.S. employers (within the meaning of 8 C.F.R. Sec. 214.2(h)(2)(i)(A)) on a case-by-case basis. Notably, the FAQ to the memorandum explicitly states that it "does not change any of the requirements for an H-1B petition" (emphasis added). There are certain steps that employers can take to strengthen the kind of evidence that would be provided in response to an RFE questioning employer control. Also, the memorandum does not address qualification by IT consulting companies under the regulation for agents. Stay tuned for future updates on this compelling development in the H-1B arena.
12/3/2009 - USCIS Issues Memorandum Explaining Its Policy on Agent-Petitioners in O and P Visa Cases
The relevant O and P regulations allow a bona fide agent to petition on behalf of an O or P employee who will work for multiple employers, as long as an itinerary listing all actual employers is provided. It has been common practice in such cases for the first employer to file on behalf of the individual and list the other employer(s) on the itinerary. USCIS has issued a policy memorandum (a public document that has USCIS officers and personnel as its intended audience) on this issue. Significantly, the memo has clarified that a petitioner will be deemed to be "in business as an agent," even if only for that specific visa petition. The memo also enumerates the kind of evidence that would satisfy the "in business as an agent" requirement. This evidence can include contracts, fee arrangements, or certifications from other employers listed in the itinerary that the the petitioner has been authorized by them to serve as their agent. The memorandum further cautions that petitioners for a P visa under the "U.S. sponsoring organization" category must not directly employ the P-1, P-2 or P-3 alien, but rather must assume responsibility for the accuracy of the terms and conditions specified in the petition.
11/15/2009 - USCIS Provides Update on the FY2010 H-1B Cap Count
USCIS has confirmed that as of November 6, 2009, it has received approximately 54,700 petitions towards the FY 2010 H-1B cap of 65,000. All of the U.S. Master's exemption allocation (20,000) has been used up. Master's cap students are eligible for filing under the regular H-1B cap as well. This number has fluctuated in recent weeks to take account of the increased number of H-1B petition denials/withdrawals under this year's quota.
10/29/2009 - Congress Passes Appropriation Bills for DHS - EB-5 Pilot Program Extended
The Congress has passed Department of Homeland Security Appropriations bill (P.L.111-83), which was signed into law by President Obama. Notably, this law extends the EB-5 Pilot Program until September 30, 2012. Under the Pilot Program, prospective investors can invest into accredited, existing businesses called Regional Centers for somewhat easier EB-5 processing. The Regional Center program had been in limbo since October 1, 2009, when the previous appropriation for the program expired. The new law also extends the Conrad 30 program, which is useful for those seeking J-1 waivers, and extends the non-minister religious workers category. Finally, the law allows USCIS to continue processing green card applications for dependents even when the principal beneficiary dies during the adjudication. Previously, such a death dealt a doubly-tragic blow to affected dependents as their GC status was put in jeopardy by the principal's death.
10/13/2009 - USCIS Clarifies O and P Visa Filing Procedures for Agents
O and P visas apply to non-immigrants with extraordinary ability in the sciences, arts, education, business or athletics, or in the motion picture and television field. O and P petitions may only be filed by a U.S. employer, a U.S. agent, or a foreign employer through a U.S. agent. Often, an O or P employee will work for multiple employers during his/her stay in the United States. The relevant regulations allow a bona fide agent to petition on behalf of such a person, as long as an itinerary listing all actual employers is provided. The Service has found that in some cases involving multiple employers for an O or P employee, the first employer will file on behalf of the individual and list the other employer(s) employer on the itinerary. CIS has clarified that only a company that is in business as an agent can do a filing on behalf of multiple employers. This policy statement creates uncertainty as to how a company can prove that it is "in business" as an agent to the satisfaction of a particular USCIS adjudication officer.
8/13/2009 - USCIS Amends Procedure for Case Status Inquiries
Until recently, the only way to check on the status of a pending case that was taking beyond the normal processing time was to call the USCIS's National Customer Service Center (NCSC) at 1-800-375-5283. USCIS has amended this procedure to allow concerned customers or their representatives to email the applicable Service Center directly if the issue has not been resolved and more than 30 days have passed since the NCSC was contacted. There is also the option to email the USCIS Headquarters Office of Service Center Operations if there is no response from the Service Center within 21 days.
7/2/2009 ICE Steps Up Enforcement of Form I-9s
United States Immigration and Customs Enforcement (ICE) announced that on July 1, 2009, 652 businesses nationwide were issued Notices of Inspection (NOIs) for I-9 audits. This number is greater than the total number of I-9 audits conducted all of last year. ICE and the Department of Homeland Security have recently been promising greater enforcement of immigration-related regulations, and so this move is not unanticipated. DHS has increased the number of its staff that is dedicated towards fraud prevention and immigration compliance. Accordingly, all employers are encouraged to conduct Form I-9 self-audits to be prepared for an inspection by ICE should one occur.
6/25/2009 - Information Update: H-1B RFEs
As many H-1B employers will confirm, in the last few months USCIS has heightened the level of scrutiny with which it adjudicates employment-based petitions, resulting in increased numbers of Requests for Evidence (RFEs), Notices of Intent to Deny (NOID) and denials. The issue has been particularly vexing for Information Technology companies, given that the Service routinely requests documentation that is impossible to provide under normal business practices. In an encouraging development, USCIS has informally indicated to the American Immigration Lawyers Association that it expects to reduce the number of overbroad RFEs, and to modify Service Center practice to conform with such normal industry practices. USCIS will also be issuing a "Helpful Hints" bulletin addressing what kind of evidence employers can provide to avoid RFEs and denials. In the interim, employers are encouraged to vigilantly pursue avenues to substantiate their cases with adequate documentation.
6/25/2009 - Information Update: H-1B Cap Update
The H-1B cap for Fiscal Year 2010 has been reached. The USCIS announced that the "final receipt date" is December 21, 2009. While the H-1B cap for FY2010 has been reached later than in the past couple of years, it bears noting that new H-1B visa numbers will still remain unavailable for the next 9 months (until October 1, 2010). This underscores the fact that, even in a slow economy, the demand for H-1B visas greatly outstrips supply.
6/25/2009 - USCIS, FBI Eliminate National Name Check Backlog
USCIS has confirmed that it has eliminated the backlog of cases that were pending an FBI name check. The Service had previously indicated that it would continue preliminary processing of such cases to avoid further delays. Going forward, it is expected that 98% of name checks will occur within 30 days, with the remaining 2% being completed in 90 days.
4/28/2009 - Senators Durbin and Grassley Introduce the "H-1B and L-1 Visa Reform Act"
Assistant Senate Majority Leader Dick Durbin (D-IL) and Senator Chuck Grassley (R-IA) have introduced legislation entitled the "H-1B and L-1 Visa Reform Act." If passed, this Act would significantly alter the H-1B landscape by implementing burdensome regulatory and administrative hurdles for many, if not most H-1B employers. Among other changes, the Act would:
Aside from being a colossal waste of taxpayer money, the Act, if passed, would be deleterious to the Information Technology industry as a whole.
- prohibit employers from hiring additional H-1B and L-1 guest-workers if more than 50% of their employees are H-1B and L-1 visa holders,
- permit DOL to initiate investigations without a complaint,
- require annual DOL audits for employers having over 100 employees if more than 15 percent of such employees are H-1B nonimmigrants, and
- require DOL to conduct audits of at least 1 percent of all H-1B employers across the United States.
3/31/2009 - ICE Clarifies Procedures for Cap-Gap Eligible Students
Students in F-1 status applying for a change-of-status H-1B petition under the FY 2010 quota (effective starting October 1, 2009) may be eligible for automatic "cap gap" relief. If the student is on post-completion OPT on the date of the petition's filing and that OPT period ends before October 1, 2009, the OPT is automatically extended to October 1. (The H-1B change of status petition must be successfully receipted if there is an H-1B lottery). Likewise, students in their 60 day "grace period" as of the cap-subject change-of-status H-1B petition's filing enjoy an extension of the grace period (but no additional work authorization) until October 1. An Immigration and Customs Enforcement (ICE) fact sheet has clarified that a new EAD does not need to be filed for the OPT cap-gap extension. It also lists certain employer and student responsibilities.
[link 1] [link 2]
3/13/2009 - H-1B Cap Filing Procedures
Employers are reminded that the H-1B regulations at 8 C.F.R. 214.2(h)(8)(ii)(B) were amended last year to allow for a five business day window in case of a lottery. Therefore, if the FY2010 H-1B cap is reached this year on or before April 7, 2009, all cap cases received through April 7, 2009 will be accepted for the lottery.
2/26/2009 - USCIS Expands Form I-140 Premium Processing Eligibility
Effective March 2, 2009, USCIS will accept a premium processing request for a Form I-140 petition filed by an H-1B nonimmigrant who has either finished 6 years in H-1B status or is within 60 days of the 6 year mark, if that nonimmigrant would be eligible for a 3 year post-6th year extension under section 104(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) but not a 1 year extension under section 106(a) of AC21.
2/19/2009 - American Recovery and Reinvestment Act of 2009 signed into law with Sanders H-1B Amendment
On February 17, 2009 President Obama signed into law the American Recovery and Reinvestment Act of 2009. The Act includes an amendment by Senators Bernie Sanders (I-Vt.) and Charles Grassley (R-Iowa) to consider all recipients of federal money under the Troubled Assets Relief Program (aka TARP) as "H-1B dependent." As discussed in our article on the current state of the H-1B program, this effectively means that these institutions would have great difficulty in hiring (or possibly extend the petitions of) H-1B workers since most of these institutions have been laying off U.S. workers. Non-recipient companies seem to remain free to place consultants at TARP-recipient worksites, despite the Sanders-Grassley amendment.
2/13/2009 - News Analysis
We have issued a news analysis article on the current state of the H-1B program in light of the recent headlines on the subject. The article discusses the TARP-related restrictions, audits, and strategies for H-1B employers and employees.
2/4/2009 - USCIS issues warning to avoid unaccredited immigration practitioners
The USCIS has issued an informational bulletin entitled "Don't Be a Victim of Immigration Fraud" as part of its awareness campaign on the issue of immigration fraud. The bulletin warns against the usage of unaccredited immigration consultants or notarios, and provides information on how the public can ascertain the accreditation status of immigration practitioners.
1/22/2009 - Janet Napolitano named as new Secretary of the Department of Homeland Security
As the new Obama administration takes over the executive branch of the federal government, one of the many highlights is the appointment and confirmation of former Arizona Governor Janet Napolitano as Secretary of the Department of Homeland Security. Napolitano has been an outspoken proponent of boosting skilled immigration, and favors increasing the H-1B cap and reducing green card backlogs. While only Congress can pass reform legislation, it is hoped that Napolitano's appointment will lead to much-needed favorable regulatory changes at DHS.
2/26/2009 - USCIS Expands Form I-140 Premium Processing Eligibility
Effective March 2, 2009, USCIS will accept a premium processing request for a Form I-140 petition filed by an H-1B nonimmigrant who has either finished 6 years in H-1B status or is within 60 days of the 6 year mark, if that nonimmigrant would be eligible for a 3 year post-6th year extension under section 104(c) of the American Competitiveness in the Twenty-First Century Act of 2000 (AC21) but not a 1 year extension under section 106(a) of AC21.
2/19/2009 - American Recovery and Reinvestment Act of 2009 signed into law with Sanders H-1B Amendment
On February 17, 2009 President Obama signed into law the American Recovery and Reinvestment Act of 2009. The Act includes an amendment by Senators Bernie Sanders (I-Vt.) and Charles Grassley (R-Iowa), which automatically treats all recipients of federal money under the Troubled Assets Relief Program (aka TARP) as "H-1B dependent." As discussed in our article on the current state of the H-1B program, this effectively means that these institutions would have great difficulty in hiring (or possibly extend the petitions of) H-1B workers since most of these institutions have been laying off U.S. workers. Non-recipient companies seem to remain free to place consultants at TARP-recipient worksites, despite the Sanders-Grassley amendment.
11/07/2008 - Department of State Clarifies Procedures for TCN Visa Processing in Mexico
Visa applicants are generally encouraged to apply for visas in their home country, at the Consulate covering their permanent address. Under some circumstances, nonimmigrants residing in the US have been able to secure visas under Third Country National (TCN) visa processing in Canada or Mexico. The US Consulates in Mexico have clarified that they will not issue initial visas to TCN applicants for a particular visa category, but will entertain renewal of a prior visa stamped in the applicant's home country.
10/22/2008 - USCIS Increases Limit on TN Visas to Three Years
The USCIS has increased the limit on TN visas (available to Canadian and Mexican nationals) from one to three years. The rule change likewise extends the limitation for TD dependants to three years. This obviates the need for TN nonimmigrants to continually renew visa status each year.
9/25/2008 - Update and Outlook for Department of State Visa Bulletin
The Visa Bulletin for October 2008 reflects continued stagnation and retrogression in some categories. Priority dates for EB-2 (India and China) have retrogressed by almost two years. EB-3 visas are once again available in October 2008, but with significant backlog. Little if any forward movement of the cut-off dates in most Employment categories is likely until the extent of the CIS backlog of old priority dates can be determined.
7/31/2008 - USCIS Clarifies Applicability of INA Section 245(k)
Section 245(k) of the Immigration and Nationality Act (INA) creates an exemption to certain bars to adjustment of status for an aggregate period of 180 days. Under this law, employment-based adjustment applicants are still eligible for green card status even if they have engaged in unauthorized employment, failed to maintain status or otherwise violated the terms of their admission for 180 days or less. A recent USCIS memo clarifies that this 180 days limit begins from the applicant's most recent admission in nonimmigrant status. Entry as a parolee does not qualify as an admission in status. Also, 245(k) continues to apply to status violations that occur after the filing of an I-485 and before its adjudication.
6/12/2008 - USCIS Extends Premium Processing of Form I-140 for Certain H-1B Nonimmigrants
The USCIS has extended the option of premium processing to H-1B nonimmigrants whose sixth year will end within 60 days, and who are not eligible for a one year extension under section 106(a) of American Competitiveness in the Twenty-first Century Act of 2000 (AC21). The purpose of this policy change is to allow individuals who are running out of time in H-1B stay to utilize section 104(c) of AC21 for a 3 year extension based on a Form I-140 petition that is approved under premium processing. Premium processing service guarantees a response from the USCIS within 15 days for a $1000 fee.
5/29/2008 - FAQ Addresses Numerous Issues Relating to "Cap Gap" OPT and STEM OPT Students
An FAQ released by the USCIS addressed several lingering issues relating to "Cap Gap" OPT and STEM OPT students. Notable points include the following: To remain in status, students in the initial 12 month OPT period must accrue no more than 90 days of total unemployment (120 aggregate limitation applies to STEM OPT students). Cap Gap beneficiaries whose I-129 petition is denied may, under some circumstances, be eligible for 60 days of authorized stay as of the denial date. Cap Gap beneficiaries are eligible for updated I-20s but are not entitled to F visas during the cap gap period. Students who were in the 60 day post-OPT grace period on April 1 and whose H-1B change of status petition was receipted have Duration of Status (D/S) until October 1 but not work authorization. A STEM extension can be applied for during the cap-gap work authorization period. STEM students need to report significant changes (including changes in address or email address) to their school's DSO. Employers likewise have numerous obligations with respect to hiring/termination of STEM students.
4/7/2008 - Cap-Gap Relief for FY2009 H-1B Beneficiaries Currently on F-1/OPT; 17 Month OPT Extension for Science and Technology Degree Holders
A rule announced by the DHS provides some new benefits for F-1 students on Optional Practical Training (OPT). First, it allows for a 17 month extension beyond the initial 12 month OPT period, under certain circumstances. The Beneficiary must have a designated science or technology degree, must specify an employer who has registered under the (otherwise voluntary) E-Verify employment authorization verification system, and must remain employed with that employer to remain in status. Second, the rule automatically extends to October 1, 2008 the OPT authorization for current F-1 OPT students who have applied for a chance of status under the April 2008 H-1B quota, and whose employment authorization would otherwise have ended before October 1, 2008.
2/7/2008 - Relief for Adjustment Applicants with Long-Pending Security Checks
Thus far, definitive FBI fingerprint and name checks have been required prior to the approval of Form I-485 Applications for Adjustment of Status. In recognition of the fact that many adjustment applications have been pending for inordinate periods of time due to pending FBI checks, the USCIS has announced a new policy under which it will approve pending I-485 applications (and certain other applications) where the application is otherwise approvable and the FBI check has been pending for more than 180 days. The USCIS will take corrective action if the FBI check ultimately reveals derogatory information.
1/09/2008 - New Employment Verification Procedures Under Revised Form I-9
... [Return to Current News] ...
The USCIS has issued guidance that effective December 26, 2007 employers must use the newest version of the Form I-9 (revised June 5, 2007) for determining whether new employees are work authorized. Current employees are exempt from completing the revised Form I-9 unless their basis for employment is a newly-issued or revalidated EAD. Employers are cautioned to comply given that failure to utilize the new form carries penalties and also given that Immigration and Customs Enforcement (ICE) has stepped up its verification procedures.