USCIS Extends and Expands Temporary Suspension of Premium Processing

USCIS announced that it will be expanding the temporary suspension of premium processing for H-1B petitions.  As, background on March 20, 2018, USCIS announced that it was temporarily suspending premium processing service for cap-subject H-1B petitions for FY2019. At that time, the Agency indicated that premium processing service was expected to  resume for these petitions on September 10, 2018.

Today, however, USCIS announced that premium processing for H-1B cap petitions will not resume on September 10th and, rather, USCIS will be expanding the suspension to apply to other H-1B petitions, including petition amendments and change of employer requests filed on or after September 11, 2018. The update also suggests USCIS might refund premium processing fees and proceed with standard process for cases filed before the new suspension becomes effective but which remain pending beyond this date.  Premium processing service will remain available to H-1B extension requests where there is no change in the petitioning employer as well as to petitions filed by certain qualifying cap-exempt non-profits and research organizations.

For impacted cases filed during the suspension, note that USCIS will still review and consider expedite requests if they meet the agency’s standard Expedite Criteria. However, expedited processing does not guarantee a certain processing timeline and is entirely discretionary.

USCIS has stated that it expects this expanded premium processing suspension to continue until February 19, 2019 and D&S will closely monitor this.  

USCIS Dials Back New Policy Limiting STEM OPT to In-House Employment

Earlier this year, USCIS updated its STEM OPT website with a more narrow interpretation of the STEM OPT regulations, indicating that all STEM OPT training must take place on-site at the employer’s place of business, thereby limiting an employer's ability to place STEM OPT workers at third-party worksites.  However, the STEM OPT website has once again been updated and USCIS appears to have scaled back this new interpretation. The most recent update removed the the pertinent language from the earlier update which suggested that off-site placement, including placement at a client site, was prohibited. The website now clarifies that employers are not prohibited from placing F-1 workers on STEM OPT at third-party worksites provided that a bona fide employer-employee relationship exists and all other STEM OPT training obligations are met.

More specifically, the updated guidance makes clear that, where an employer and the F-1 student working pursuant to STEM OPT have a valid employer-employee relationship, and that same employer provides the practical training experience and signs the STEM training plan, third party placement would not be prohibited under the STEM OPT regulations.

Employers and employees should continue to ensure all training and reporting obligations are met and F-1 students are reminded that status violations or a failure to maintain their status will result in the accrual of Unlawful Presence under USCIS’s new policy.

Department of State September 2018 Visa Bulletin Summary

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

EB-1, EB-2, and EB-3 Worldwide will no longer be current in September, retrogressing to June 1, 2016, January 1, 2013, and November 1, 2016 respectively. They are expected to become progress or become current again at the start of the new fiscal year in October.  EB-1 China remains unchanged, EB-2 China retrogressed more than 2 years to January 1, 2013, and EB-3 China progressed 4 months to November 1, 2014. EB-1 India remained unchanged, EB-2 India retrogressed more than 2 years to January 1, 2007, and EB-3 India retrogressed 6 years to January 1, 2003.  EB-5 regional center and non-regional center filings remain current except for China and Vietnam, both of which progressed one week to April 8, 2014.

Application Filing Dates remain unchanged across all areas of chargeability for September 2018, with exception of F2B Worldwide, China and India, which progressed over 2 years from January 8, 2012 to March 22, 2014.

As of today, August 9, 2018, USCIS has not advised whether, in September 2018, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

 

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.

Read More

Department of State August 2018 Visa Bulletin Summary

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

The EB-1 category has retrogressed by more than two years to May 1, 2016 for all areas of chargeability with the exception of EB-1 China and EB-1 India, which remain unchanged. EB-2 China has progressed by 2 months to March 1, 2015. EB-3 China has progressed by 1.5 years to July 1, 2014, while EB-3 India and Other Workers India have progressed by 2 months to January 1, 2009. EB-4 India and Certain Religious Workers India have retrogressed by just under 2 years to February 8, 2016. All other categories remain unchanged across all areas of chargeability.

Application Filing Dates remain unchanged across all areas of chargeability for August 2018.

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

 

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.  

Read More

Department of State July 2018 Visa Bulletin Summary

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

With respect to Final Action Dates, EB-1 China and EB-1 India will both retrogress significantly to January 1, 2012. EB-2 China has progressed by 4 months to January 1, 2015. EB-3 China has retrogressed by nearly 2.5 years to January 1, 2013.  EB-2 India has progressed by nearly 2.5 months to March 15, 2009. EB-3 India and Other Workers India have both progressed by 5 months to November 1, 2008. EB-4 El Salvador/Guatemala/Honduras and Religious Workers El Salvador/Guatemala/Honduras have each progressed by nearly 2 months to February 8, 2016. EB-4 Mexico and Religious Workers Mexico have retrogressed by 8 months to February 8, 2016. All other categories remain unchanged across all areas of chargeability.

With respect to Application Filing Dates, EB-2 China has progressed by 2 months to April 1, 2015, and EB-2 India has progressed nearly 2 months to May 22, 2009. EB-3 India and Other Workers India have each progressed by 8 months to May 1, 2009. EB-4 El Salvador/Guatemala/Honduras and Religious Workers El Salvador/Guatemala/Honduras have both progressed by two weeks to May 1, 2016. EB-5 China has progressed by 1 month to October 1, 2014 for both Regional Centers and Non-Regional Centers. All other categories remain unchanged across all areas of chargeability.

As of today, June 15, 2018, USCIS has not advised whether, in July 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 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 Policy Memo on Accrual of Unlawful Presence and F, J and M Nonimmigrants

On May 11, 2018, United States Citizenship and Immigration Service (USCIS) posted a draft policy memorandum announcing a change in policy regarding the accrual of Unlawful Presence by Nonimmigrant Students and Exchange Visitors.

The policy seeks to change how USCIS will calculate unlawful presence for students and exchange visitors in F, J, and M nonimmigrant status (including F-2, J-2, or M-2 dependents) who fail to maintain their status in the United States.

Read More

Department of State June 2018 Visa Bulletin Summary

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

With respect to Final Action Dates, EB-2 India has progressed by 4 days to December 26, 2008. Similarly, EB-5 China and EB-5 Vietnam have progressed slightly to August 1, 2014 for both regional centers and non-regional centers. All other categories remain unchanged across all areas of chargeability.

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

As of today, May 10, 2018, USCIS has not advised whether, in June 2018, it will accept adjustment of status applications for family and employment-based petitions based on final action dates or application filing dates.

 

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.

Read More

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.  

Read More

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.

Read More

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. 

Read More

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.  

Read More