USCIS Completes the H-1B Cap Random Selection Process for FY2020

USCIS has confirmed that they have received a sufficient number of petitions projected as needed to reach the congressionally-mandated H-1B Cap (including the U.S. advanced degree exemption or “Master’s” cap) for Fiscal Year 2020. USCIS previously announced on April 5 that it had received enough petitions to reach the congressionally mandated H-1B regular cap of 65,000.

USCIS received 201,011 H-1B petitions during the filing period, which began on April 1, 2019.

USCIS will begin to reject and return filing fees for all unselected cap-subject petitions (with the exception of fees for cases rejected as prohibited multiple filings).

USCIS Reaches FY 2020 H-1B Regular Cap

USCIS has confirmed that they have received a sufficient number of petitions projected as needed to reach the congressionally-mandated 65,000 H-1B visa “regular” or “Bachelor’s” cap for Fiscal Year 2020.

USCIS will next determine if they have also received a sufficient number of petitions to meet the 20,000 H-1B visa U.S. advanced degree exemption, the “Master’s” cap.

As a reminder, the agency recently implemented a new rule amending the regulations governing the H-1B cap. Under the new rule, USCIS runs petitions through the lottery process by first selecting all individuals through the regular cap of 65,000 visas and then selecting the projected number of petitions needed to reach the advanced degree exemption through the second lottery among only U.S. advanced degree holders who were not selected in the regular cap lottery. The agency has stated that this new order in which the lottery is run will likely increase the probability of selection for H-1B advanced degree beneficiaries.

Once both caps have been met, USCIS will reject and return filing fees for all unselected cap-subject petitions (with the exception of fees for cases rejected as prohibited multiple filings).

USCIS Delays Implementation of NTA Policy Memo

USCIS has announced that the Policy Memorandum (PM) titled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens”  which directs USCIS to issue Notices to Appear (NTAs) when denying certain applications for benefits has been temporarily suspended in order to allow for the issuance of operational guidance regarding implementation of the new policy.

USCIS did not provide a timeline for when the NTA Issuance policy will ultimately become effective and D&S will continue to monitor this situation closely.

UPDATE: On September 26, 2018 USCIS announced that it would be rolling out implementation of the NTA Policy Memo starting on October 1, 2018, after which time USCIS may issue NTAs on denied status-impacting applications, including but not limited to, Form I-485, Application to Register Permanent Residence or Adjust Status, and Form I-539, Application to Extend/Change Nonimmigrant Status.

USCIS has indicated that it will send denial letters for status-impacting applications that ensures applicants are given adequate notice when an application for a benefit is being denied. If applicants are no longer in a period of authorized stay, and do not depart the United States, USCIS has stated that it may issue an NTA.

USCIS has further stated that the NTA Policy Memo will not be implemented with respect to employment-based petitions and humanitarian applications and petitions at this time. Existing guidance for these case types will remain in effect.

USCIS Grants Adjudicators Full Discretion to Deny Filings Without Issuing a Request for Evidence

Today, Friday, June 13, 2018 U.S. Citizenship and Immigration Services (USCIS) posted a policy memorandum (PM) that provides USCIS adjudicators full discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when required initial evidence was not submitted or the evidence of record fails to establish eligibility.

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USCIS Policy Memo Expands USCIS's Ability to Place Foreign Nationals in Removal Proceedings

The United States Citizenship and Immigration Service (USCIS) recently issues a new Policy Memorandum (PM) titled Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.”  This new guidance stems from the January 25, 2017 Executive Order “Enhancing Public Safety in the Interior of the United States” and it seeks to expand the instances in which USCIS must issue Notices to Appear (NTAs) when denying certain applications for benefits, such as requests for extensions of status, changes of status, and adjustment of status.  

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USCIS Announces that Data Entry for all FY2019 H-1B Cap Cases is Complete

USCIS has confirmed that data entry for all fiscal year 2019 H-1B cap-subject petitions selected in the computer-generated random selection process ("the lottery") has been completed. The Agency will now begin returning all H-1B cap-subject petitions that were not selected in the lottery. 

USCIS has indicated that, due to the high volume of H-1B filings, the Agency cannot provide a definite time frame for returning unselected petitions but that they will issue an announcement once all the unselected petitions have been returned. 

USCIS Letter to Senator Grassley Provides Details of Planned Immigration Regulatory Changes on the Horizon

On April 4, 2018, United States Citizenship and Immigration Service (USCIS) Director L. Francis Cissna wrote a letter to Senator Charles Grassley, Chairman of the Senate Judiciary Committee, to provide him with an update on measures USCIS is taking to improve the integrity of the nonimmigrant employment visa program following the April 18, 2017 “Buy American, Hire American” Executive Order.  Director Cissna indicated that changes have and will continue to be made in the form of regulations, policy memoranda, and operational changes.

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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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USCIS Announces Temporary Suspension of Premium Processing for All H-1B Petitions Filed On or After April 3, 2017

Today the United States Citizenship and Immigration Service (USCIS) issued a statement confirming that the agency will be temporarily suspending premium processing service for all H-1B nonimmigrant visa petitions filed on or after April 3, 2017 and has indicated that the temporary suspension may last up to six (6) months.  The agency confirmed that this will apply to all H-1B petitions, including those filed under both the regular and master's cap and those that are cap-exempt.

USCIS indicated that while H-1B premium processing is suspended it will not accept Forms I-907, Request for Premium Processing Service filed with an H-1B petition. USCIS also confirmed that they will reject the entire H-1B petition for cases where the premium processing fee is combined in one check with the standard Form I-129 filing fees.  Therefore, individuals submitting H-1B petitions should not file any cases with a request for premium processing and should issue separate checks for each filing fee in order to avoid any issues with rejection of the petition.

USCIS has indicated that it has temporarily suspended premium processing service in order to reduce overall H-1B processing times, including long-pending cases and unadjudicated H-1B extension requests that are approaching 240 days since filing (after which the beneficiary would lose their automatic extension of employment authorization until the new petition is approved).  The agency confirmed that it will notify the public before resuming premium processing for H-1B petitions.

D&S is continuing to monitor this developing situation and will provide updates as they become available.

Reminders to Students and Employers as H-1B Cap Effective Date Approaches on October 1

As October 1st is fast-approaching, individuals with H-1B petitions that were selected in this year’s H-1B cap and employers of H-1B visa holders should remain aware of some important facts:

CAP-GAP EXTENSIONS END ON SEPTEMBER 30th - For those whose H-1B is still pending and who are relying on the automatic cap-gap for F-1 students, keep in mind that that your cap-gap employment authorization ends on September 30th, even if the H-1B remains pending after this date. Therefore, employees whose H-1B visas are not approved by October 1st will have to stop working and be removed from payroll. Because of this, we recommend considering upgrading to premium processing as soon as possible in order to avoid this consequence or, at the very least, minimize the amount of time you or your employee will be unable to work.

VALID H-1B VISA STAMP REQUIRED FOR REENTRY TO U.S. - While an H-1B employee is not required to have a valid H-1B visa in his or her passport for purposes of employment, they must have a valid H-1B visa stamp for entry or reentry to the U.S. Therefore, following approval of the H-1B petition, an H-1B employee should be mindful of the fact that they will be required to apply for an H-1B visa stamp prior to returning to the U.S. the next time they travel internationally, absent certain limited exceptions, including trips of under 30 days to Canada, Mexico, or adjacent islands (note individuals should vet any such travel with immigration counsel prior to making travel plans to ensure an exception applies in their case).  

I-9 REVERIFICATION MAY BE REQUIRED - Employers should also keep in mind that for current employees with an approved H-1B “Change of Status” petition, whose current status will expire on October 1, including all F-1 students working pursuant to cap-gap employment authorization, the individual’s employment authorization will need to re-verified on Form I-9.

ALWAYS ADVISE IMMIGRATION ATTORNEY OF ANY CHANGES TO H-1B EMPLOYMENT - Finally, employers and employees should be aware that certain changes to the terms of an H-1B visa holder’s employment could impact their continued eligibility for H-1B status and/or could necessitate the filing of an H-1B amendment.  Employers are therefore encouraged to speak to immigration counsel prior to making any changes to the terms of an H-1B visa holder’s employment to ensure compliance with these requirements.

USCIS Proposes Parole Program for Entrepreneurs

U.S. Citizenship and Immigration Services (USCIS) is proposing a parole program for entrepreneurs who would provide a “significant public benefit” to the United States. Under the proposed rule, which is in line with the initiatives put in place in President Obama’s November 2014 memorandum on “Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century,” and the July 2015 White House report on improving the current immigration system, certain international entrepreneurs would become eligible for parole into the United States in order to start or grow a U.S.-based businesses.

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USCIS Releases Policy Memorandum on “AC21” Green Card Portability

USCIS released a Draft AC21 Policy Memorandum which seeks to clarify what constitutes “the same or similar occupational classification” for purposes of portability under The  American Competitiveness in the Twenty-First Century Act of 2000 (“AC21”) in order to provide more predictability, efficiency, and consistency in AC21 portability determinations.

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USCIS Announces Adjustment of Status Filing Dates for December

USCIS has announced that for December, Family-Based Adjustment of Status applicants can use the "Filing Dates" listed on the Department of State's December 2015 Visa Bulletin. Employment-Based Applicants, however, can only use the "Final Action Dates" to determine when they are eligible to submit Adjustment of Status applications. 

This announcement comes after USCIS issued updated instructions regarding the use of the Revised Visa Bulletin, implemented in September 2015, which contains two sets of dates for both family-based and employment-based immigrant visas. 

Updated Instructions for Using the Revised Visa Bulletin

USCIS issued updated instructions for utilizing the new Visa Bulletin System which are a departure from the original process. Beginning with the November 2015 Visa Bulletin, applicants can only use the "Filing Dates" to determine whether they are able to file their adjustment of status applications if USCIS specifically indicates this option is available for that month. Unless otherwise stated, the "Final Action" dates will control. 

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Department of State Issues Revised October Visa Bulletin, EB-2 China and India Filing Dates Retrogress

Today, September 25, 2015, the Department of State (DOS) released a revised October Visa Bulletin. The revised version supersedes the version that was originally published only a few weeks ago, on September 9, 2015. The changes come on the heels of the announcement made by USCIS and DOS earlier this month, implementing revised procedures for determining immigrant visa availability.  The agencies indicate that the revisions have been made to "better reflect a timeframe justifying immediate action in the application process."

The revisions impact the Family-Based Filing Dates for F-1 and F-3 Mexico, the Employment-Based Filing Dates for EB-2 China and India, as well as EB-3 and "Other Workers" for the Philippines, and delay when individuals in these categories will become eligible to file an application for adjustment of status.

D&S has updated the monthly Summary of the family and employment based priority dates to reflect these changes, including the new dates in bold


USCIS & DOS Announce Revised Procedures for Determining Visa Availability with Release of October 2015 Visa Bulletin

U.S Citizenship and Immigration Services (USCIS) and the Department of State (DOS) have formally announced that the agencies will be revising their procedures for determining visa availability for applicants waiting to file for employment-based or family-based applications for permanent residence (“green card”).  This announcement comes in conjunction with DOS’s release of the October 2015 Visa Bulletin.  

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USCIS Releases Final L-1B Adjudications Policy Memorandum

This week, USCIS released a policy memorandum which consolidated previously issued guidance related to the L-1B nonimmigrant visa classification which permits multinational companies to transfer employees who possess “specialized knowledge” to the United States.  

The policy memo, which supersedes and rescinds certain prior L-1B guidance, is applicable to all USCIS employees and directs officers adjudicating L-1B petitions to "apply the statutory and regulatory criteria for L-1B classification in a manner consistent with this guidance."

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USCIS Modifies Preparer's Declaration on Form I-129

Today, August 17, 2015, USCIS published a new version of Form I-129, Petition for a Nonimmigrant Worker, which includes a revised version of the "Preparer's Declaration" section.

The revisions come following changes made to in the Preparer's Declaration in the version of the Form I-129 with an an edition date of October 23, 2014. In that version, the I-129 Preparer's Declaration included the following language:

By my signature, I certify, swear or affirm, under penalty of perjury, that I prepared this form on behalf of, at the request of, and with the express consent of, the petitioner. I completed the form based only on responses the petitioner provided to me. After completing the form, I reviewed it and all of the petitioner's responses with the petitioner, who agreed with every answer provided for every question on the form and, when required, supplied additional information to respond to a question on the form.

Many practitioners felt this wording, which appeared to dictate the procedures used by preparers and their clients to gather the information required to complete petitions for immigration benefits, imposed an undue burden on preparers and petitioners alike. The revised Preparer's Declaration now reads:

By my signature, I certify, swear, or affirm, under penalty of perjury, that I prepared this petition on behalf of, at the request of, and with the express consent of the petitioner or authorized signatory.
The petitioner has reviewed this completed petition as prepared by me and informed me that all of the information in the form and in the supporting documents, is complete, true, and correct.

The new language appears to be more in line with the applicable regulations which require that preparers and petitioners certify that the documentation and information submitted to USCIS is true and correct but does not mandate any specific procedures for preparation and review.