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.

EB-1 for China and India Backlogged come April 1

Charlie Oppenheimer and the Department of State have determined that, because of increased usage of the EB-1 immigration visas that, come April 1 they will have to backlog this category for both India and China. Both have been backlogged to January 1, 2012 (a date for which there will be no demand). This action was taken to make sure that worldwide usage for this category stays within the numbers allowed.

Charlie did say that, if worldwide usage declines over the coming months he may be able to move these dates forward at some point this fiscal year. While the category will move forward, and may even come current, at the beginning of the next fiscal year (October 1, 2018), it is most likely that both India and China will continue to use their allotted share of EB-1 visas each year and there may end up being a more consistent backlog as there is for the EB-2 and EB-3 categories for India and China.

We will update you as soon as we receive any additional information.

Update on H-4 EAD’s

UnknownIt appears that USCIS is preparing to release a new rule by June, 2018 to remove the provision that allows certain H-4 spouses of H-1B visa holders to apply for work authorization.  If you have been following this issue, you know that the new administration has been looking at revoking these rules since it came into power.  It appears now that they are getting ready to act.  According to the administration, allowing such people work authorization is taking away potential jobs from US Citizens.  In further of this view, USCIS just released a report on the H-4 EAD process, including statistics on the number of cases, etc.  According to this report, there are over 104,000 people taking advantage of this law.

While we cannot be certain that the new rule will actually be published (or when it will be published) until it is actually published, it appears that it is now in sight, and will be implemented by the end of this year.  If you are currently using such an EAD, it would be beneficial to discuss other options with your attorney.

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.

Updates: Signatures and Credit Card Acceptance at USCIS

3EB2E8ED-35F7-451D-B3AF-96539B02C187USCIS Now Accepting Credit Cards for Most Filings

USCIS has issued a new form G-1450 that will allow people to pay for form filing fees via credit card directly with USCIS.  This form is available for all applications filed at lockbox facilities.  It cannot be used for filings at local offices.  You should read all the information at the USCIS website here to make sure that you complete the form correctly according to what applications you are filing.

Please do call us with any questions about this new policy.

USCIS No Longer Accepting Power of Attorney for Signatures

USCIS has always required original signatures on all forms.  However, USCIS did accept the signature of someone other than the applicant if there was a duly authorized power of attorney.  This is the case no longer.  USCIS will no longer accept such arrangements.  Now the applicant must sign all forms being filed with USCIS.  Parents are still allowed to sign for minors, however.  USCIS also made clear that any deficiency in the signature (whether for an employer, employee, applicant, etc.) could also result in a rejection or denial of the application.

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.

Want to Make an Infopass Appointment? New Process is Coming Soon.

3EB2E8ED-35F7-451D-B3AF-96539B02C187According to the American Immigration Lawyer’s Association, USCIS is changing the process for making InfoPass Appointments.  According to their press release:

 

 

AILA has received reports that as part of a new pilot program, select USCIS field offices are anticipated to roll out a new scheduling process for InfoPass appointments that will eliminate self-scheduling of InfoPass appointments online. Under the new pilot program, the scheduling of InfoPass appointments for select USCIS local field offices will instead be coordinated by the USCIS National Customer Service Center. The stated purpose for this new program is to avoid InfoPass appointments being utilized for routine inquiries that can be resolved via the Customer Service Hotline. According to reports, USCIS plans to implement this new pilot program at five local USCIS field offices: Hartford, CT; El Paso, TX; Jacksonville, FL; Sacramento, CA; and San Francisco, CA.

Once the new pilot program is implemented, in order to schedule an InfoPass appointment at one of the above listed USCIS field offices, stakeholders will first need to contact the NCSC by phone (1-800-375-5283), speak to a Tier 1 officer, and request to schedule an InfoPass appointment. The call will then be escalated to a Tier 2 USCIS representative who will confirm that the issue is appropriate for an InfoPass appointment before scheduling the appointment.

USCIS has not yet publicly released information about this new pilot program on the USCIS website and the implementation date of the program at all five of the selected USCIS field offices is not yet confirmed. AILA will continue to monitor the rollout of this new initiative and has reached out to USCIS for additional information on its implementation.

As stated above, USCIS is trying to prevent routine inquiries that it feels can be handled by its customer service call center from going to the local offices.  Thankfully AILA will be monitoring the roll out of the program as it is very clear that USCIS could start to abuse this system by routinely denying appointments and requiring people to go through the customer service call center (which, in many cases, is less than adequate).

We will update you when more information is available.

Check in With Charlie Oppenheim on Immigrant Visa Movement

UnknownCharlie Oppenheim has released some more information on how he sees immigrant visa usage heading this year.

Overall his  predictions are largely positive, with forward movement predicted in most categories.  However, it should be noted that the new USCIS policy requiring transfer of employment-based I-485s to field offices for interview is expected to increase volatility in final action date movement in employment-based categories. These categories may actually see faster advancement of certain final action dates in the near term because fewer cases will be adjudicated, though once the transition is complete and the USCIS adjudications process has stabilized, there may be slower movement or retrogression in certain categories depending on usage.

In addition, if there are delayed adjudications, this would  mean less visibility in demand for the State Department, which may result in more rapid forward movement (if Charlie does not know of pending cases, or projected usage, he cannot account for it in setting dates in the visa bulletin). The timeliness of the sharing of demand data by USCIS may also be impacted, as data will need to be pulled from multiple offices, as opposed to a more centralized approach to adjudications and data collection in the past.

The total number of visas used by USCIS as a whole during this fiscal year (or, at least, the first quarter of the fiscal year (October through December, 2017)) has decreased by several thousand as compared to FY2017. Charlie plans to advance categories as needed to generate sufficient demand to ensure usage of all available visa numbers, while trying not to do so too rapidly to avoid retrogression or unavailability.

In terms of specific categories:

Employment-Based Categories

EB-1 India and EB-1 China:  The imposition of a final action date for EB-1 China and EB-1 India in July/August/September of 2017, created pent up demand which was largely adjudicated in October, November and December of 2017. However, so far, this fiscal year, EB-1 India and EB-1 China have already used 7,000 and 4,500 visa numbers, respectively. Charlie expects these categories to remain current for the coming months, but the imposition of a final action date in the summer remains likely if the current rate of demand continues. This could, however, be delayed if the transition of I-485s to USCIS Field Offices results in slowed processing of EB-1 China and EB-1 India cases in the coming months.

EB-2 Worldwide: This category should remain current for the foreseeable future.

EB-2 and EB-3 China:  As stated in my last post, EB-2 China will advance just under two months to October 1, 2013, and EB-3 China will advance five months to September 15, 2014 in the February Visa Bulletin. According to Charlie this category will continue to  advance at a rate of two to three months each bulletin, and may progress at a faster pace to generate demand. EB-3 China is predicted to advance at a pace of “(u)p to five months.” Charlie advised that EB-3 China will likely continue to advance at a faster pace than EB-2 China.

However, this may “flip” around, and EB-2 China may start progressing at. Faster rate.   It is unclear whether this “flip” will occur in FY18 due to a combination of factors, including the availability of otherwise unused family-based preference numbers for China, and uncertainty as to how the transfer of employment-based I-485s to USCIS Field Offices will impact the speed of adjudications and the processing of upgrade and downgrade requests.

EB-2 India:  Again, as stated in my previous post, EB-2 India will advance by less than one month in February from November 22, 2008, to December 8, 2008. Given heavy demand, the February Visa Bulletin predicts modest forward movement for EB-2 India at a rate of “(u)p to two weeks.”

EB-3 India:  The final action date for EB-3 India will advance one month to December 1, 2006. The February Visa Bulletin predicts forward movement in this category at a pace of one to three months. Once the final action date advances beyond August 2007, Charlie will have very little visibility into demand. Once this occurs, there is the potential for rapid movement of the EB-3 India final action date to generate new demand. This may happen either late this fiscal year (August or September of this year) or next fiscal year.

EB-3 Philippines:  This category will advance two weeks to March 1, 2016, in February. Demand in this category is comfortable, but not extremely high, which means there is less room to advance this date significantly. Charlie is watching this category closely since there have been spikes in demand, and he does not want to advance the final action date too quickly to avoid future retrogression. At this time, demand in this category is heavily weighted toward consular processing, but it is expected that USCIS filings could increase significantly in the coming months.

Family Based Categories

Final action date movement tends to be less erratic and more predictable in the family-based categories since Charlie has greater visibility into demand patterns based on the fact that these cases are primarily adjudicated at consular posts rather than domestically by USCIS. Charlie predicts FB-1 Worldwide advancing at a pace of up to one month, FB-2A Worldwide advancing three to five weeks, FB-3 Worldwide advancing up to five weeks, and FB-4 worldwide advancing up to three weeks.

FB-1 Philippines and FB-2B Philippines, which had retrogressed in December, will advance seven months and 21 days in February, respectively. Charlie will continue to monitor demand carefully in these categories over the next several months. Recent volatility is attributable to the lack of visibility of rescheduled appointments made by applicants through the Department of State’s Global Support System (GSS). Charlie is working closely with the post in Manila to obtain more accurate demand data, and he hopes that as a result, these dates will slowly advance and recover.

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.