USCIS Reaches FY 2019 H-1B Visa Cap And Finishes Count

imagesUSCIS announced on April 11 that they had received enough applications to fill the FY 2019 H-1B Cap.  Just today they announced that they had completed the counting nad selection process.  We should begin to receive receipts first, then returned applications that were not selected.  Here is the text of the press release from USCIS:

On April 11, USCIS used a computer-generated random selection process to select enough H-1B petitions to meet the congressionally-mandated cap and the U.S. advanced degree exemption, known as the master’s cap, for fiscal year (FY) 2019.

USCIS received 190,098 H-1B petitions during the filing period, which began April 2, including petitions filed for the advanced degree exemption. USCIS announced on April 6, that it had received enough H-1B petitions to reach the statutory cap of 65,000 and the master’s cap of 20,000. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing.

USCIS conducted the selection process for the master’s cap first. All unselected master’s cap petitions then became part of the random selection process for the 65,000 cap.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, will also not be counted towards the FY 2019 H-1B cap. USCIS will continue to accept and process petitions filed to:

  • Extend the amount of time a current H-1B worker may remain in the United States;
  • Change the terms of employment for current H-1B workers;
  • Allow current H-1B workers to change employers; and
  • Allow current H-1B workers to work concurrently in a second H-1B position.

 

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 Suspending Premium Processing for Cap Subject H-1B applications

images-1Yesterday, USCIS announced that they would be suspending premium processing for 2019 Cap-subject applications until September 10, 2018.  This means you can only file cap-subject applications via regular processing.  Those applications that are cap-exempt, including those filed by universities and those for extensions of H-1B status, can continue to use premium processing.  Below is a section of the press release from USCIS:

Starting April 2, 2018, USCIS will begin accepting H-1B petitions subject to the Fiscal Year (FY) 2019 cap. We will temporarily suspend premium processing for all FY 2019 cap-subject petitions, including petitions seeking an exemption for individuals with a U.S. master’s degree or higher. This suspension is expected to last until Sept. 10, 2018. During this time, we will continue to accept premium processing requests for H-1B petitions that are not subject to the FY 2019 cap. We will notify the public before resuming premium processing for cap-subject H-1B petitions or making any other premium processing updates.
During this temporary suspension, we will reject any Form I-907, Request for Premium Processing Service, filed with an FY 2019 cap-subject H-1B petition. If a petitioner submits one combined check for the fees for Form I-907 and Form I-129, Petition for a Nonimmigrant Worker, we will reject both forms. When we resume premium processing, petitioners may file a Form I-907 for FY 2019 cap-subject H-1B petitions that remain pending.

Please call our office with any questions you may have.  And, 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.

H1B Recent Trends: The Wage Level 1 Conundrum

unknownIn the last year, USCIS has certainly increased its scrutiny on all cases, especially on H-1B cases.One tact that USICS has taken is to insist that, if an employer has used a Level 1 wage, then, without any further review of the position, USCIS can assume that it is an entry level position and is NOT a specialty occupation.  While to most people, this simply makes no sense, USCIS used this rationale (or lack there of) to deny many H-1B applications.  Finally, the Administrative Appeals Office, which overseas appeals of all H-1B denials, has ruled on one such case and overturned the denial.  The AAO stated;

Before we do so, a few more general observations are in order about the relevance of wage levels in the context o f H-1 B adjudications. A position’s wage level designation certainly is relevant, but is not a substitute for a determination of whether a proffered position meets the requirements of section 214(i)(l) of the Act. We assess each case on its merits. There is no inherent inconsistency between an entry-level position and a specialty occupation. For some occupations, the “basic understanding” that warrants a Level I wage may require years of study, duly recognized upon the attainment of a bachelor’s degree in a specific specialty. Most professionals start their careers in what are deemed entry-level positions. That doesn’t preclude us from identifying a specialty occupation. And likewise, at the other end of the spectrum, a Level IV wage would not necessarily reflect that an occupation qualifies as a specialty occupation if that higher-level position does not have an entry requirement of at least a bachelor’s degree in a specific specialty or its equivalent. Wage levels are relevant, and we will assess them to ensure the LCA “corresponds with” the H-1B petition. But wage is only one factor and does not by itself define or change the character of the occupation.

We are very hopeful that this means that USCIS will take a more holistic approach and review all relevant documents in all such cases instead of denying a majority of such cases without really reviewing the relevant documentation.   Despite the above, it is still very important to include sufficient evidence with the initial application showing the specialty nature of the occupation.  Such evidence can include other job postings for similar positions, letters from other employers, CVs of other employees in the same position, etc.   Please do note, that each case is different and the type and amount of evidence needed will vary by case.  Please call our office with any specific 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 Changes Adjudication Standard for I-129 Renewals

B61D08D2-1849-4FCD-9897-F0AC03874CFFMany of you may know that USCIS has had a policy in place that allowed those filing an application to renew their status (H-1B, L-1, E-1, etc.) to file a ‘bare bones’ application – an application with just new information and none of the initial documentation sent in with the first application to show that the person qualified for the status.  This policy stated that, assuming the underlying conditions were the same for the renewal (i.e. same employer, same position, etc.) then there was no real reason to totally re-adjudicate a case unless the officer felt that the initial approval was done in error.  Just this week, USCIS changed this policy.

Before going into the new policy, you maybe asking yourself “But when I filed a renewal, I filed it with substantial documentation, did I not need to do that?”.  The answer is technically no, but realistically yes.  While the above policy was in place, especially over the last year (but even before that) most officers did not follow this policy to the letter.  In most cases, we found that if we did not include substantial documentation, even for an H-1B renewal, showing that ALL the requirements were met, USCIS would issue a Request for Evidence.  So in practice, the above policy was more of a slight leaning in favor of approving the renewal rather than the intent of the policy, which was to lighten the load of officers and those filing the cases.

So what does the new policy say?  It rescinds the old policy and states that each application should be adjudicated according to its own merits regardless if it is an initial application or a renewal.  In practice, it simply means that there is no longer a slight bias in favor of approving a renewal, and, instead, you will need to be more careful and ensure that you provide documentation with the renewal to show that ALL qualifications are met, even if the documentation was given with the original application.  It also means that the fact that a case was approved in the past, does not mean that, if you file the same documentation, the case will be approved in the future, or that USCIS will not request additional evidence the second time around.

So while this may not change the rules as much as one may have thought on first glance, it still does change them to a certain degree.  That degree will depend on the strength of the underlying case.

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.

30/60 Day Rule is Removed from FAM, Replaced with 90 Day Rule

images.jpegMany of you may not be aware of the 30/60 day rule.  The Department of State in its Foreign Affairs Manual (FAM) has a section on willful misrepresentations.  Part of this section describes how to determine willful misrepresentations in the case of people who enter the US on a non-immigrant visa but then undertake activities which contradict that status.  A good example is if someone enters the US on a tourist visa and then marries a US Citizen or begins to work without authorization.  Under its old rule, the Department of State would consider such activities as prima facie evidence of a willful misrepresentation if the activities occurred within 30 days of entry on the non-immigrant visa.  If the events occurred within 60 days of entry, they would not constitute prima facie evidence of a willful misrepresentation, however, if the facts of the case give the officer a reasonable belief that a misrepresentation was made they should ask for countervailing evidence from the foreigner.  If the activity took place more than 60 days after entry, then actual evidence of a misrepresentation would be needed.  DOS has now amended this section, and, instead, instituted a 90 day rule

The new rule states that if someone enters the US on a non-immigrant visa and undertakes certain types of activities (working without permission, undertaking a course of study (if not authorized to do so), marrying a US Citizen (only visas that require non-immigrant intent – including B and F visas), undertaking any other activity for which a change of status or adjustment of status would be required (and no such change of status or adjustment has been made) within 90 days, there will be a presumption that the person made a willful misrepresentation.

It is important to remember a few points here:

  1. This is a Department of State Rule, and, USCIS has not yet adopted it.  While USCIS has followed the 30/60 rule in the past, they did not consider it a bright line rule, rather one factor to look at.  In addition, they were much less likely to apply to marriage based cases based upon the date of marriage (they more looked at the date the I-130 was filed).  This is not to say individual officers did not apply the previous rules more strictly, but overall, USCIS did not use it a bright line test.
  2. The 90 day rule applies to when the activity occurred.  For example, in terms of a marriage based case, even waiting until 91 days has passed and then filing the I-130 does not matter if the marriage took place at day 34 – DOS would look at the date of the marriage and there would be a presumption of a willful misrepresentation.
  3. It is a presumption, not a definite finding.  In other words, you can still try to rebut the presumption if you have convincing evidence to show that you did not intend to undertake the activity when you applied for the Visa and entered the US.
  4. In terms of the marriage piece, this does not apply to those on H-1Bs, E visas, L Visas. K visas, O visas, and any other nonimmigrant visa that allows dual intent to one degree or another.

We will certainly be watching both USCIS and DOS and let you know any additional information about how this new rule is implemented.

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 Finishes Data Entry for ALL 2018 Cap Subject H-1Bs

USCIS announced on Wednesday that it has finished data entry for all cap subject applications it has accepted for the 2018 fiscal year.  USCIS will now begin sending back those applications not selected and will be transferring cases from Vermont to California to even the H-1B case load between the service centers.  While not all receipts have been received by everyone as of yet, if your check has not yet been cashed, or you do not receive the receipt in the next several days, most likely your case was not accepted into the Cap.

Hopefully USCIS will be able to update us within 1-2 months on how quickly they are getting through the H-1B cap cases and current backlog to give everyone a better idea of how long it will take for them to get through all the cap cases (i.e. will they complete this before October 1, 2017 or not).  We will update you as soon as we receive any additional information.

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.

 

New Presidential Executive Order “Buy American, Hire American”

Many of you know that yesterday President Trump signed a new executive order.  The idea of this order was to ensure that Federal grants and procurements go, first and foremost, to American companies and that the government focuses on ensuring that qualified Americans are hired prior to foreigners.  In terms of Immigration consequences, the executive order says the following:

Sec. 5. Ensuring the Integrity of the Immigration System in Order to “Hire American.” (a) In order to advance the policy outlined in section 2(b) of this order, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, and consistent with applicable law, propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.

(b) In order to promote the proper functioning of the H-1B visa program, the Secretary of State, the Attorney General, the Secretary of Labor, and the Secretary of Homeland Security shall, as soon as practicable, suggest reforms to help ensure that H-1B visas are awarded to the most- skilled or highest-paid petition beneficiaries.

In other words, at this time there is no effect on the H-1B program.  However, in the future, after the proposed suggested changes are given to the President, there is the possibility that some changes could be made.

It is important to keep in mind, however, that most changes would require congressional approval, meaning that it could take a while, if they are approved at all.  Changed that do not require congressional approval would need to go through the rule making process, meaning that they would take several months  for those to be sent out and to go through the rule making process.  We will keep you updated on any proposed changes.

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.