USCIS Proposes a New H-1B Employer Registration System

imagesUSCIS released a copy of a proposed rule that will be published on December 3, 2018. This proposed Rule, which will have a 30 day comment period, will set up a system that requires employers to pre-register in order to file an H-1B against the H-1B cap and would also change the way that USCIS carries out the lottery for H-1Bs. We will examine the varying aspects of this proposed rule below.

H-1B Registration System

The registration system would require employers to complete a registration PRIOR to the filing of any H-1B applications towards the H-1B cap. The registration period will open up 14 days prior the first day that H-1Bs can be filed (April 1).  It will remain open for a period of at least 14 calendar days at which time, if sufficient registrations have been received, USCIS will begin the lottery system (which we will talk about below).  What we do not know at this time is:

1) What information will be required in the registration;

2) Will each employer just list the number of H-1Bs they will be filing or is a registration needed for each application you intend to file;

3) Will the system be in effect starting this year, or will they wait until the following fiscal year to begin using the system (there is a provision that allows them to not use the system if there are technical issues).

Lottery System

Under the previous system, USCIS would first select sufficient applications to meet the H-1B Master’s Cap (20,000).  USCIS would then take the remaining applications submitted under the Master’s Cap and put those together with applications filed under the regular cap, and then, USCIS would select the regular cap cases (64,0000).   While this system gave those with a Master’s two lottery chances, in some ways it also increased the odds for those without a Master’s degree to be selected in the regular cap lottery by automatically ensuring at least 20,000 Masters cases were removed from that lottery.

Under the new system, the Regular Cap lottery will be conducted FIRST.  After this lottery is conducted, USCIS will see if there are still sufficient numbers of H-1B Master’s Cap Cases left to fill that cap.  If there are, it will conduct that lottery.  If not, it will re-open registration just for Master’s Cap Cases and will wait until it has sufficient registrations, then close registration and conduct the lottery.  In this way, the administration is hoping that it increases the number of cases selected in which the beneficiary has a higher level degree.

To understand why this change was made, USCIS did indicate that it was to comply with the Buy America initiative signed into law via an executive order by the President.   Part of that order required H-1B visas to be made available to those with more education and who are receiving higher salaries.  While USCIS cannot change the statutory requirements, this is one easy way for them to comply with this mandate.

Conclusion

At this point, we do not know if USCIS will change the process at all once it receives the comments, or if it will implement it as written.  We also do not know if there is sufficient time, or if the system is sufficiently far along, that USCIS will be able to implement the system this fiscal year, or if they will have to wait until the next fiscal year.  We will certainly update you once these issues become clear and we know what the final process and timelines will be.  In the meantime, please do let us know if you have any questions.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

USCIS Denials up 37% under the Trump Administration

UnknownA new study from the CATO Institute, a think tank in Washington DC, shows that the denials are up about 37% under the new administration. The CATO institute did NOT include naturalization applications, TPS and Deferred Action for Childhood Arrivals applications in its statistics, as these are programs under fire right now by the administration.

Looking at some individual applications:

– I-129 denials went up from 16.8 percent to 22.6 percent
– Not surprisingly because of the previously discussed rule to deny I-131s if foreigners travel on their H-1B before it is approved, I-131 denials went up from 7.2% to 18.1%
– I-765 employment authorization denials increased from 6% to 9.6%
– Employment-based I-485s saw an increase in denials from 5.9% to 7.9%
– Fiance petitions were rejected at a more than a 50% higher rate, rising from a 13.6% denial rate to a 21% denial rate

To see the full article, please click here.

Personally, we have seen USCIS adjudicates cases in a more strict manner, which is tied to their changing how they interpret regulations, especially in the H-1B context. They are more stringent regarding what a specialty occupation is, over what constitutes the correct employer-employee relationship, as well as other critical issues in the H-1B context.  While our office has not seen a rise in the denial rates of applications we submit, we definitely do see the increased scrutiny that USCIS is paying to particular applications.   It certainly pays to be extra careful in drafting and filing these applications to ensure a smooth process with USCIS and to avoid getting caught up in their increased scrutiny.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

 

Use of Electronic Devices at Field Offices Banned

USCIS has always disallowed those using their services from using computers, tablets and phones in their field offices. Apparently, they are concerned about the ability of these devices to take pictures and record audio and video (of course, they record everything but that is another story). However, as attorneys are officers of the Court, they have generally allowed attorneys to use their electronic devices to take notes and refer to client documents, especially as things are moving towards electronic files these days. However, the current administration felt that this was to much leeway, so as of last week, attorney’s are also no longer allowed to use such devices at field offices, and if they try to, USCIS may end the the interview and dismiss the attorney from the office.

It is important for clients to realize as well, that when USCIS means you cannot use such devices during the interview, what they ultimately mean is to turn off all electronic devices. It is equally important to realize that the list of devices is actually quite large. It includes: cell phones, computers, tablets, smart watches, fitness devices, personal GPS devices, bluetooth devices, mobile hotspots, music players, or other wearable electronics. If your cell phone rings during the interview, they could actually stop the interview at that point and re-schedule the interview. How draconian they will be in the enforcement of this policy has yet to be seen as the change is just occurring. We will certainly update you with any new information as soon as we get it.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Want an appointment at a local office? Soon you may not be able to make one.

USCIS announced that it is phasing out InfoPass appointments at local offices (self-scheduled appointments) except on a limited basis. Basically they will allow appointments on an emergency basis and to deliver documents to the local office only. USCIS stated that their research showed that for the vast majority of people who make appointments at local offices, the questions they asked could be answered using the on-line resources at USCIS.com or calling the 1-800 number. In addition to the limited on-line appointments, if you call the 1-800 number and they determine that an appointment at the local office is needed, they will schedule it directly for you. There are certainly pluses and minuses to this new policy.

In the plus category, this should allow officers to spend more time interviewing people and adjudicating cases, thus bringing timelines for family and employment based green cards down.

In the minus category, it will make it much harder to find out exactly what is going on with a case once it is at the local office. Most local offices use to have special emails that immigration attorney’s could contact if there were issues. In addition, attorney’s (as well as immigrants themselves) could make appointments with the local office to find out what was happening with a case. Now, all that is available is calling the 1-800 number to try and find out what is going on. The only result of this is that it will be much harder to actually get the status of a case.

Currently the new policy is only in place in a limited number of states. However it should be rolled out nationwide by the new year. We will keep you updated as more information becomes available.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

Charlie Oppenheim Updates his Predications for Movement of Immigration Visa Numbers

Charlie Oppenheim updated his predictions on the movement of immigrant visa numbers for the foreseeable future. I will detail some of the highlights below, however, please do remember that these are just predictions from Mr. Oppenheim and they can change depending on what the actual demand in any given category actually materializes.

EB-1

 

While Charlie previously thought there would not be movement forward until next year, it now appears that next month (December) should see forward movement on the Worldwide numbers as well as for India and China. Charlie is still not sure how far forward they will move, so we will need to wait for next month to see what happens. He does caution, however, that Worldwide numbers will not become current in the foreseeable future, and this will probably be the norm for at least the first half of the fiscal year.

EB-2 + EB-3

 

Based upon current demand, China numbers will continue to move forward as they did for the November bulletin. On the other hand, EB-3 for China is seeing high demand right now. At the moment EB-2 China is only about 2 weeks ahead of EB-3 China. It is possible that the EB-2 date will pass the EB-3 date soon. However, Charlie is not sure if the current EB-3 demand is based upon downgraded EB-2s. If this is the case, then the forward movement of EB-2 dates could be affected by this phenomena.

For India, the EB-2 numbers and EB-3 numbers held steady in November, and it is projected that there will be little , if any, advancement in December for the EB-2 numbers. However the EB-3 usage is lighter, and there should be forward movement of a few weeks (or even months) in December.

 

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p dir=”auto”>If you have any questions, please call or email me. Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a blog. Thank you.

November Visa Bulletin Released

The Department of State has released the November 2018 visa bulletin. While there are no real surprises, we will go through the details below. It should be noted that USCIS has stated that the Dates for Filing should be used for both family and employment based immigrant visas, so we will indicate those below as well.

Work Based Immigration Visas

EB1: The dates stayed the same (June 1, 2016 for India and China and April 1, 2017 for All Other Countries). Dates for Filing: October 1, 2017 for India and China and June 1, 2018 for All Other Countries).

EB2: China had the only change, going forward about 1 month to May 15, 2015. Otherwise India stayed at March 26, 2009 and All Other Countries stayed current. Dates for Filing: China is at June 15, 2015 and India is at May 22, 2009.

EB3: All stayed the same as last month (June 1, 2015 for China, January 1, 2009 for India and June 8, 2017 for the Philippines, while All Other Countries remained current). Dates for Filing: August 8, 2015 for China, October 1, 2009 for India, and July 17, 2017 for the Philippines.

Family Based Immigrant Visas

F1: Mexico stayed at August 1, 1997, the Philippines moved to February 1, 2007 and India, China and All Other Countries moved to June 22, 2011. Dates for Filing: Mexico stayed at October 8, 1998, the Philippines stayed at February 15, 2008 and India, China and All Other Countries stayed at March 8, 2012.

F2A: Mexico moved forward 1 month to September 1, 2016 and China, India, the Philippines and All Other Areas moved forward to September 15, 2016. Dates for Filing: Stayed at December 1, 2017 for All Countries.

F2B: Mexico moved forward to June 8, 1997 while the Philippines moved forward to June 1, 2007. India, China and All Other Countries moved forward to January 1, 2012. Dates for Filing: Stayed the same, June 22, 1997 for Mexico, December 15, 2007 for the Philippines and March 22, 2014 for India, China and All Other Countries.

F3: Mexico moved forward to December 22, 1995, the Philippines has moved to June 1, 1997 and China, India and All Other Countries are at January 8, 2007. Dates for Filing: No Movement. Mexico is at December 22, 1998, the Philippines are at June 1, 1997 and India, china and All Other Countries are at January 8, 2007.

F4: Mexico moved forward to February 8, 1998, the Philippines moved forward to June 15, 1995, India moved forward to June 1, 2004 and China and All Other Countries are at March 22, 2005. Dates for Filing: No Movement. Mexico is at June 22, 1998, the Philippines is at April 8, 1996, India is at January 1, 2005 and China and All Other Countries are at June 1, 2005.

October Visa Bulletin and Update from Charlie Oppenheim

The Department of State has released the October Visa Bulletin and Charlie Oppenheim, the person in charge of the Visa Bulletin has also updated us on what may happen in the near future with visa numbers.

First, in terms of the Visa Bulletin, what is probably most important to people is the EB-1 and EB-2 priority date cut-offs.  For October, the EB-1 cutoff for worldwide (and yes, it is NOT current) is April 1, 2017.  For India and China it is June 1, 2016.  According to Charlie, these dates will most likely not change until January 2019.

For EB-2 numbers, Worldwide did come back to Current.  However India and China remain backlogged.  India is at March 26, 2009 and China is at April 1, 2015.  Worldwide EB-3 is also current again, with India at January 1, 2009, China at June 1, 2015 and the Philippines at June 1, 2017.  Right now Charlie is predicting that Worldwide numbers will remain Current for the foreseeable future.  India and China will both move forward slowly, and India EB-3 may surpass India EB-3 at some point this year.

For Family based immigrant visas, according to Charlie, Mexico and China may move forward more rapidly than in the past as there has been less demand from those countries.  India, however, has seen increased demand and may not move forward as rapidly, if at all.  For specific categories and their priority dates, please call us.

Please remember, as always, this blog does not offer legal advice. If you need legal advice, consult with a lawyer instead of a Blog. Thank you.