USCIS Narrows Interpretation of STEM OPT Regs to Permit Only In-House Employment

USCIS recently updated its STEM OPT website with what appears to be a new interpretation of the 2016 STEM OPT regulations.  More specifically, the 2016 STEM OPT regulations added more formality to the STEM OPT process, requiring employers and students to execute a formal training plan (Form I-983) outlining the training provided and establishing the existence of a bona-fide employer-employee relationship between the employer and the STEM OPT student.  

USCIS’s new regulatory interpretation focuses on the nature of the bona fide employer-employee relationship and now requires all STEM OPT training to take place on-site at the employer’s place of business.  

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Department of State May 2018 Visa Bulletin Summary

The Department of State has released the May 2018 Visa Bulletin.  D&S provides a Monthly Summary of the family and employment-based priority dates.  

With respect to Final Action Dates, the EB-1 category remains unchanged across all areas of chargeability. Similarly, EB-2 remains unchanged across all areas of chargeability, with the exception of EB-2 China, which has progressed by 1 month to September 1, 2014. EB-3 India has progressed by 3 months to May 1, 2008. All other areas of chargeability remain unchanged. Other Workers China and Other Workers India have progressed to May 1, 2007 and May 1, 2008 respectively. All other areas of chargeability remain unchanged. Similarly, EB-4 remains unchanged across all areas of chargeability with the exception of EB-4 Mexico, which has progressed slightly more than 2 months to October 22, 2016. Certain Religious Workers are now current across all areas of chargeability, with the exception of El Salvador/Guatemala/Honduras, which is retrogressed to December 15, 2015, and Mexico, which is retrogressed to October 22, 2016. EB-5 for non-regional centers remains unchanged with the exception of EB-5 Vietnam, which is now retrogressed to July 22, 2014. EB-5 for regional centers is now current across all areas of chargeability, with the exceptions of EB-5 China and EB-5 Vietnam, which are both retrogressed to July 22, 2014.

Application Filing Dates for all categories and across all areas of chargeability are unchanged in May 2018, with the exceptions of EB-2 India, which has progressed 2 months to April 1, 2009, EB-3 India, which has progressed 5 months to September 1, 2008, and Other Workers India, which has progressed 5 months to September 1, 2008.

As of today, April 12, 2018, USCIS has not advised whether, in May 2018, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

 

USCIS Announces FY2019 H-1B Cap has Been Reached

USCIS has confirmed that the H-1B cap has been reached for both Bachelor's and Master's filings. This is of course not unexpected and we will be providing updates as they become available, including information on how many applications were filed this year and the expected timeline for notification of accepted petitions.

As a reminder, the agency will reject and return filing fees for all unselected cap-subject petitions (with the exception of fees for cases rejected as prohibited multiple filings).

UPDATE: On April 11, 2018, USCIS announced that it has completed the random lottery selection process and that 190,098 cases were received this fiscal year.

USCIS Issues Memo Updating Policy on Multiple H-1B Cap Filings for Same Individual

USCIS recently issued a Policy Memorandum adopting Matter of S- Inc., a decision issued by the Administrative Appeals Office (AAO) regarding the prohibition on “related entities” filing multiple cap-subject H-1B petitions for the same H-1B beneficiary in an effort to increase chances of acceptance into the H-1B lottery.  USCIS’s adoption of this decision establishes policy guidance that applies to and guides USCIS visa adjudications, and the Memo directs USCIS personnel are to follow the reasoning in this decision in similar cases.

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USCIS Announces Temporary Suspension of Premium Processing Service for FY2019 H-1B Cap Subject Petitions

Today, March 20, 2018, USCIS announced that it will be suspending premium processing service for H-1B cap-subject petitions for fiscal year 2019.  The temporary suspension is expected to last until September 10, 2018 and applies only to FY2019 cap-subject petitions, meaning those that are being filed as cap-exempt, including requests for change of H-1B employer, extension of H-1B status, and H-1B petition amendments, for example, will continue to be eligible for premium processing service. 

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Department of State April 2018 Visa Bulletin Summary

The Department of State has released the April 2018 Visa Bulletin.  D&S provides a Monthly Summary of the family and employment-based priority dates.  

With respect to Final Action Dates, the EB-1 China and India have each retrogressed significantly to January 1, 2012. All other areas of chargeability remain current under EB-1. EB-2 China has progressed by nearly eight months to August 1, 2014 and EB-2 India has progressed by one week to December 22, 2008. All other EB-2 areas of chargeability remain current. EB-3 China has progressed nearly 7 months to June 1, 2015, EB-3 India has progressed by more than one year to February 1, 2008, and EB-3 Philippines has progressed by eight months to January 1, 2017. All other areas of chargeability remain unchanged. Similarly, Other Workers remain unchanged across all areas of chargeability with the exceptions of China, which has progressed to April 1, 2007, India, which has progressed to February 1, 2008, and the Philippines, which has progressed to January 1, 2017. EB-4 El Salvador/Guatemala/Honduras has progressed slightly to December 15, 2015 and EB-4 Mexico has progressed slightly to August 8, 2016. All other areas of chargeability remain unchanged. Certain Religious Workers are now unavailable across all areas of chargeability. EB-5 for non-regional centers remains unchanged and EB-5 for regional centers is now unavailable across all areas of chargeability in light of the pending legislative deadline.

Application Filing Dates for all categories and across all areas of chargeability are unchanged in April 2018, with the exceptions of EB-3 India and Other Workers India, which have each progressed to April 1, 2008, and EB-3 Philippines and Other Workers Philippines, which have both progressed to July 1, 2017.

As of today, March 13, 2018, USCIS has not advised whether, in April 2018, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

 

Travel Advisory for F-1 Students Undergoing H-1B Sponsorship

Foreign nationals who are currently employed pursuant to F-1 Optional Practical Training (OPT) and for whom and H-1B petition is being submitted under this year’s H-1B cap are advised to proceed with caution when planning international travel leading up to and during the H-1B cap filing window (which starts April 2, 2018).  Depending upon when their OPT expires, when and how they plan to commence H-1B status, and whether they will require a new F-1 visa stamp before October 1st, travel may not be possible or may come at increased risk.  

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USCIS Issues New Policy Memo on Third Party Placement for H-1B Petitioners

This week the United States Citizenship and Immigration Service (USCIS) issued a new Policy Memorandum (PM) titled “Contracts and Itineraries Requirements for H-1B Petitions Involving Third-Party Worksites” which increases the amount and type of documentation that must be submitted in support of H-1B petitions involving third-party worksite placement (H-1B petitions in which the the H-1B beneficiary will be employed at the worksite of a third-party client).  Common examples of such placements include consultants placed at a client site in order to provide consulting services, certain staffing agencies/IT service vendors, and some subcontractor arrangements.

The PM supersedes prior policy memoranda on this issue and clarifies and consolidates the documentary requirements for H-1B petitioners submitting petitions for third-party placement. The PM makes clear that such petitions must include additional documentation, namely contracts and itineraries, showing that the beneficiary will be employed in a specialty occupation and that the petitioner will maintain an employer-employee relationship with the beneficiary throughout the requested petition validity period.

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Department of State March 2018 Visa Bulletin Summary

The Department of State has released the March 2018 Visa Bulletin.  D&S provides a Monthly Summary of the family and employment-based priority dates.  

With respect to Final Action Dates, the EB-1 category remains current across all areas of chargeability. EB-2 China and EB-2 India have progressed slightly to December 8, 2013 and December 15, 2008 respectively. All other EB-2 areas of chargeability remain current. EB-3 China has progressed by two months to November 15, 2014, EB-3 India has progressed by one month to January 1, 2007, and EB-3 Philippines has progressed by two months to May 1, 2016. All other areas of chargeability remain unchanged. Similarly, Other Workers remain unchanged across all areas of chargeability with the exceptions of China, which has progressed to March 1, 2007, and India, which has progressed to January 1, 2007. EB-4 Mexico has progressed slightly to July 1, 2016. All other areas of chargeability remain unchanged. Certain Religious Workers are now current across all areas of chargeability, with the exceptions of El Salvador/Guatemala/Honduras, which has progressed to December 1, 2015, and Mexico, which has progressed to July 1, 2016. EB-5 for non-regional centers remains unchanged and EB-5 for regional centers is now current across all areas of chargeability with the exception of China, which has returned to July 22, 2014.

Application Filing Dates for all categories and across all areas of chargeability are unchanged in March 2018, with the exception of EB-2 China, which has progressed nearly four months to February 1, 2015, EB-3 Philippines and Other Workers Philippines, which have both progressed to October 1, 2016.

As of today, February 12, 2018, USCIS has not advised whether, in March 2018, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

 

Impact of Potential Government Shutdown on U.S. Immigration Services

Following the passage of several continuing resolutions, Congress now has until midnight tonight (January 19, 2018) to pass a spending bill or another continuing resolution to keep the Federal government funded.  If Congress is not able to come to an agreement this would result in a government shutdown that would impact several government agencies responsible for administering parts of various immigration and visa programs.  While the situation continues to develop, we outline below the impact of a government shutdown on the various Federal immigration functions should Congress fail to take action prior to the deadline:

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Department of State February 2018 Visa Bulletin Summary

The Department of State has released the February 2018 Visa Bulletin.  D&S provides a Monthly Summary of the family and employment-based priority dates.  

With respect to Final Action Dates, the EB-1 category remains current across all areas of chargeability. EB-2 China and EB-2 India have progressed slightly to October 1, 2013 and December 8, 2008 respectively. All other EB-2 areas of chargeability remain current. EB-3 remains unchanged across all areas of chargeability, with the exceptions of EB-3 China, which has progressed five months to September 15, 2014, EB-3 India, which has progressed one month to December 1, 2006, and EB-3 Philippines, which has progressed two weeks to March 1, 2016. Similarly, Other Workers remain unchanged across all areas of chargeability with the exceptions of China, which has progressed to February 1, 2007, India, which has progressed to December 1, 2006, and Philippines, which has progressed to March 1, 2016. EB-4 Mexico has progressed by less than a month to June 22, 2016. All other areas of chargeability remain unchanged. Certain Religious Workers remain unavailable across all areas of chargeability. EB-5 for both non-regional centers and regional centers remains unchanged.

Application Filing Dates for all categories and across all areas of chargeability are unchanged in February 2018, with the exception of EB-2 China, which has progressed one year to November 15, 2014, EB-3 China, which has progressed four months to January 1, 2016, and EB-5 China, which has retrogressed one month to September 1, 2014 for both regional centers and non-regional centers.

As of today, January 16, 2018, USCIS has not advised whether, in February 2018, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

 

Media Reports Suggest Changes to AC-21

1/9/2018 UPDATE: USCIS has confirmed with news sources that it is NOT currently considering changing its interpretation of AC-21.

Media reports have been circulating which suggested that new regulations eliminating H-1B extensions beyond the six-year limit under The American Competitiveness in the 21st Century Act (AC-21) may be proposed.

While D&S is closely monitoring the situation, it is important to stress that as today, January 8, 2018, these reports remain unsubstantiated.  At this point, there has been no confirmation from the Department of Homeland Security (DHS) or any other government agency that the current administration is planning to take action to restrict or eliminate AC-21 benefits. Note that it would be unlikely and difficult for DHS to implement this change without going through the formal rulemaking process, which can take several months and requires a period of public notice and comment. Further, as of today, no rules have been proposed and no AC-21 related immigration rules appear on the agency’s recently-published regulatory agenda. Therefore, individuals with approved I-140 petitions or labor certifications filed more than one year before their final date in H-1B status continue to be eligible for H-1B extensions beyond the six-year limit at this time.

Again, D&S continues to review and monitor all actual proposed changes and will be updating clients in the coming days, weeks and months as any proposed immigration-related regulatory changes are introduced and reviewed.

 

 

USCIS Issues Policy Memo Limiting Use of TN Economist Classification

This week the United States Citizenship and Immigration Service (USCIS) announced the issuance of a new Policy Memorandum titled “TN Nonimmigrant Economists Are Defined by Qualifying Business Activity.” The memorandum is part of USCIS’s effort to align its adjudication practices with the directives of the President's "Buy American, Hire American" Executive Order and seeks to clarify, and limit, eligibility for TN nonimmigrant status under the occupational category for Economists. In particular, the memo states that, for purposes of TN classification, the profession of Economist must not primarily include the activity of other occupations, including, but not limited to, those performed by Financial Analysts, Market Research Analysts, or Marketing Specialists, and notes explicitly that those three specialties do not qualify for TN visa issuance.

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Department of State January 2018 Visa Bulletin Summary

The Department of State has released the January 2018 Visa Bulletin.  D&S provides a Monthly Summary of the family and employment-based priority dates.  

With respect to Final Action Dates, the EB-1 category remains current across all areas of chargeability. EB-2 China and EB-2 India have progressed slightly to August 8, 2013 and November 22, 2008 respectively. All other EB-2 areas of chargeability remain current. EB-3 remains unchanged across all areas of chargeability, with the exceptions of EB-3 China, which has progressed slightly to April 15, 2014. EB-3 India, which has progressed two weeks to November 1, 2006, and EB-3 Philippines, which has progressed one month to February 15, 2016. Similarly, Other Workers remain unchanged across all areas of chargeability with the exceptions of China, which has progressed to December 22, 2006, India, which has progressed to November 1, 2006, and the Philippines, which has progressed to

February 15, 2016. EB-4 El Salvador/Guatemala/Honduras has progressed less than a month to December 1, 2015 and EB-4 Mexico has progressed by less than two months to June 1, 2016. All other areas of chargeability remain unchanged. Certain Religious Workers are unavailable across all areas of chargeability. EB-5 for non-regional centers remain current across all areas of chargeability, with the exception of China, which has progressed slightly to July 22, 2014. EB-5 for regional centers are unavailable across all areas of chargeability at this time in light of the continuing resolution extending the availability of the regional center program only through December 22, 2017, until Congress passes more long-term legislation.

Application Filing Dates for all categories and across all areas of chargeability are unchanged in January 2018.

As of today, December 14, 2017, USCIS has not advised whether, in January 2018, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

 

Department of State December 2017 Visa Bulletin Summary

The Department of State has released the December 2017 Visa Bulletin.  D&S provides a Monthly Summary of the family and employment-based priority dates.  

With respect to Final Action Dates, the EB-1 category remains current across all areas of chargeability. EB-2 China and EB-2 India have progressed slightly to July 1, 2013 and November 1, 2008 respectively. All other EB-2 areas of chargeability remain current. EB-3 remains unchanged across all areas of chargeability, with the exceptions of EB-3 China, which has progressed slightly to March 8, 2014. Similarly, Other Workers China has progressed 3 months to July 1, 2006 while all other areas of chargeability remain unchanged. EB-4 also remains unchanged across all areas of chargeability, with the exceptions of EB-4 El Salvador/Guatemala/Honduras, which has progressed 7 days to November 8, 2015, and EB-4 Mexico, which has progressed 21 days to April 22, 2016. EB-5 for both regional centers and non-regional centers remains current across all areas of chargeability, with the exception of China, which has progressed slightly to July 15, 2014.

Application Filing Dates for all categories and across all areas of chargeability are unchanged in December 2017.

As of today, November 13, 2017, USCIS has not advised whether, in December 2017, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

 

USCIS Issues Policy Memorandum Rescinding Prior Guidance Directing That Deference Be Given To Prior Visa Approvals

This week United States Citizenship and Immigration Service (USCIS) issued a Policy Memorandum titled “Rescission of Guidance Regarding Deference to Prior Determinations of Eligibility in the Adjudication of Petitions for Extension of Nonimmigrant Status” which rescinds prior USCIS policy guidance permitting USCIS adjudicators to give deference to certain previously approved nonimmigrant visa petitions where the material facts underlying the petition remained unchanged. This policy had been in place since 2004 and was reaffirmed by USCIS in 2015.

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Department of State November 2017 Visa Bulletin Summary

The Department of State has released the November 2017 Visa Bulletin.  D&S provides a Monthly Summary of the family and employment-based priority dates.  

With respect to Final Action Dates, the EB-1 category remains current across all areas of chargeability. EB-2 China and EB-2 India have progressed slightly to June 15, 2013 and October 8, 2008 respectively. All other EB-2 areas of chargeability remain current. EB-3 remains unchanged across all areas of chargeability, with the exceptions of EB-3 China, which has progressed 1 month to February 1, 2014, and EB-3 Philippines, which has progressed 1.5 months to January 15, 2016. Similarly, Other Workers China has progressed 3 months to April 1, 2006 and Other Workers Philippines has progressed 1.5 months to January 15, 2016. All other areas of chargeability remain unchanged. EB-4 also remains unchanged across all areas of chargeability, with the exception of EB-4 Mexico, which has progressed 1 month to April 1, 2016. EB-5 for both regional centers and non-regional centers remains current across all areas of chargeability, with the exception of China, which has progressed slightly to July 1, 2014.

Application Filing Dates for all categories and across all areas of chargeability are unchanged in November 2017.

As of today, October 12, 2017, USCIS has not advised whether, in November 2017, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

 

Newest Trump Administration Travel Restrictions to Begin October 18th, 2017

On Sunday, September 24th, 2017, President Trump signed a new Proclamation entitled Enhancing Vetting Capabilities And Processes For Detecting Attempted Entry Into The United States By Terrorists Or Other Public-Safety Threats effectively revising his earlier Travel Ban, which expired earlier the same day.  The Trump Administration’s prior Travel Ban is currently pending review by the Supreme Court, with oral argument scheduled for October. 

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FY2019 Diversity Visa Lottery Opens at 12 noon (EDT) On Tuesday, October 3, 2017

WHAT'S HAPPENING

The Fiscal Year 2019 Diversity Visa lottery (DV-2019), which makes 50,000 green card numbers available each year to nationals of countries among six different geographic regions with low rates of immigration to the U.S., will be open for entries beginning noon Eastern Daylight Time (EDT) on Tuesday, October 3, 2017, and will close for entries at noon Eastern Standard Time (EST) on Tuesday, November 7, 2017. Eligible individuals who wish to participate in the program must apply in advance of the November 7th deadline and are encouraged to do as close to October 3rd as possible as heavy demand may result in website delays. No late entries or paper entries will be accepted.

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Department of State October 2017 Visa Bulletin Summary

The Department of State has released the October 2017 Visa Bulletin.  D&S provides a Monthly Summary of the family and employment-based priority dates.  

With respect to Final Action Dates, the EB-1 category is now current across all areas of chargeability.  The EB-2 category is now current across all areas of chargeability, with the exception of EB-2 China, which has progressed 1 week to May 22, 2013, and EB-2 India, which has progressed by less than 1 month to September 15, 2008. There has been significant progression of 2 years for EB-3 China, while EB-3 India remains unchanged at October 15, 2006. EB-3 Philippines progressed mone month to December 1, 2015, while all other areas of chargeability remain unchanged. EB-4 India is now current and EB-4 Mexico progressed nearly 5 months to March 1, 2016. All other areas of chargeability are now current.

EB-5 for both regional centers and non-regional centers remains current, with the exception of China, which has progressed by 1 week to June 22, 2014.

Application Filing Dates for EB-1, EB-2 and EB-3 Worldwide are current, as are Application Filing Dates for EB-1 across all areas of chargeability. EB-2 China has progressed by 1.5 months to November 15, 2013 and EB-2 India has progressed by 1 week to February 2, 2009.  All other categories remain current. EB-3 China remains unchanged at September 1, 2015 and EB-3 India, which has progressed by 1 year to January 1, 2008. EB-3 Philippines has progressed by 7 months to August 1, 2016, and all other areas of chargeability remain current. EB-4 El Salvador/Guatemala/Honduras retrogressed to April 15, 2016, while all other areas of chargeability are now current, and both regional center and non-regional center EB-5 remains current across all areas of chargeability with the exception of China, which has progressed 1 month to October 1, 2014.

As of today, September 12, 2017, USCIS has not advised whether, in October 2017, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.