DHS Proposes Merit-Based Rule for More Effective and Efficient H-1B Visa Program

The Department of Homeland Security (DHS) has announced a notice of proposed rulemaking which allows for public comment beginning today, December 3, 2018 until Wednesday, January 2, 2019.

This proposed rulemaking arises from President Trump’s “Buy American and Hire American Executive Order” which instructed DHS to propose new rules and guidance to protect the interests of U.S. workers in the administration of the immigration system. The order specifically mentioned the H-1B program.

This proposal would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. Once more than enough petitions had been received to reach the congressionally mandated H-1B cap, USCIS would then conduct its lottery, a computer-generated random selection process. In conducting its lottery, USCIS would reverse its selection order to allow for the first selections to be made from the H-1B cap and then proceed to the advanced degree selection. USCIS is expecting that this would increase the number of beneficiaries with a master’s or higher degree from a U.S. institution and introduce a more meritorious selection of beneficiaries. It also expects that the shift to electronic registration would reduce overall costs for petitioners and create a more efficient and cost effective process for USCIS. As USCIS would no longer receive and handle H-IB petitions and supporting documents prior to conducting the selection process, the wait times for cap selections would be reduced. The new rule would also limit the filing of H-1B cap-subject petitions to the beneficiary named on the original selected registration.

USCIS is actively working to develop and test the electronic registration system for the FY 2020 (April 2019 submissions) cap selection process. However, if the requisite testing and vetting is insufficient for that deadline then the registration requirement may be suspended for FY 2020 (April 2019 submissions).

NOTE – This is proposed law and is still in the comment period. Therefore, until the law is finalized and implemented, the H-1B cap selection process will remain the same in April 2019. We will continue to provide updates.

Link to USCIS announcement: https://www.uscis.gov/news/news-releases/dhs-proposes-merit-based-rule-more-effective-and-efficient-h-1b-visa-program

DHS Moves Closer Toward Removing the Rule that Extends Employment Authorization to Certain H1-B Dependent Spouses

In May 2015, USCIS put into effect a final rule which extended the eligibility for employment authorization to certain H-4 dependent spouses of H-1B nonimmigrant workers who have an approved I-140 or have been granted H1-B status beyond the normal six-year term. At that time, a lawsuit was filed challenging the authority of Department of Homeland Security (“DHS”) to promulgate such a rule. After holding the case in abeyance, the DHS has issued a Notice of Proposed Rulemaking with the expressed intention of removing the final rule. Revisions to its current rule are still being considered. It is the DHS’ intent to have this submitted to the Office of Management and Budget for final clearance by the end of 2018.

U.S Department of State Releases 2020 Diversity Immigrant Visa Program Application Information

The Department of State released a Notice containing information on applying for the 2020 Diversity Immigrant (DV-2020) Visa Program. This annual, statutorily-mandated program provides visas for immigrants from countries with historically low rates of immigration to the U.S. 50,000 immigrant visas will be made available through this program.

There is no cost to register. Applicants are selected by lottery and must meet simple but strict eligibility requirements in order to qualify. Diversity numbers are distributed among six geographic regions with no country receiving more then 7% of the available DVs. Due to the high numbers of immigrants in the past five years, natives of the following countries are ineligible: Bangladesh, Brazil, Canada, China (mainland-born), Columbia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories and Vietnam. (Natives of Hong Kong SAR, Macau SAR and Taiwan are eligible.)

The requirements are twofold and must both be met: a) an applicant must have been born in a qualifying country (If an applicant is native to an ineligible country, the applicant may qualify if his/her spouse is native to a qualifying country and they are both named on a selected entry and seek to enter the U.S. simultaneously; an applicant may also claim either of his/her parents’ native country if their country is eligible and the parent did not legally reside in an ineligible country at the time of the applicant’s birth) and b) an applicant must meet the education/work experience component which is completion of a high school education or its 12 year formal education equivalent OR two years of work experience in the past five years in an occupation that requires at least two years of training or experience to perform. The Department of Labor’s O*Net Online database is used to determine work experience.

Applications are submitted electronically at www.dvlottery.state.gov between noon EST on October 3, 2018 through noon EST on November 6, 2018. Late entries and paper submissions are not accepted. Only one entry may be submitted per applicant. Applications should only be submitted on this site and there is no fee. There are many sites that require a fee and are fraudulent sites so applicants are warned to ensure that they only submit their application on the government site.

Additional information, status and selection confirmation is available at www.dvlottery.state.gov.

U.S. Department of State Releases October 2018 Visa Bulletin

The October 2018 Visa Bulletin has been released. The EB-1 category has visas available for foreign nationals of all countries with priority dates of April 1, 2017 with the exception of China and India (priority dates: June 1, 2016). Most EB-2 category foreign nationals will have current priority dates and will be eligible for an immigrant visa (green card) except for EB-2 nationals of China (priority date: April 1, 2015) and India (priority date: March 26, 2009). EB-3 category foreign nationals have current priority dates with the exception again of China (priority date: June 1, 2015), India (priority date: January 1, 2009) and the addition of Philippines (priority date: June 1, 2017).

The F2A category (spouses and children under 21 of lawful permanent residents) cut-off date is August 22, 2016 except for Mexico which is August 1, 2016. Despite a movement forward, all other family-based categories have significant backlogs. The longest queues remain with the Philippines in both the F3 (married sons and daughters of U.S. citizens) and F4 (brothers and sisters of U.S. citizens) categories (priority date: June 8, 1995).

Cut-off dates on the Visa Bulletin do not always progress forward in time. A visa retrogression can occur when more people apply for a visa in a particular category or from a particular country than there are visa available for that month. Retrogression typically occurs toward the end of the fiscal year as visa issuance approaches the annual category or per-country limitations.

The October Visa Bulletin can be accessed via the U.S. Department of State website: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-october-2018.html

Premium Processing Fee Increasing from $1,225 to $1,410 starting on October 1, 2018

The Department of Homeland Security will be increasing the Premium Processing fee from $1,225 to $1,410 effective October 1, 2018.

Certain immigration petitions filed with USCIS are eligible for expedited processing in 15 calendar days by paying an extra amount. This can accelerate processing of a petition from 4 – 6 months to 15 calendar days. Petitions eligible for premium processing include non-immigrant petitions: H-1B (extension and cap exempt only starting September 11, 2018), L-1, E, O, and immigrant petitions: I-140 (based on extraordinary ability or a certified PERM).

For a complete list of eligible petitions, see https://www.uscis.gov/forms/how-do-i-use-premium-processing-service

U.S. Department of State Releases July 2018 Visa Bulletin

Under the July 2018 Visa Bulletin, most foreign nationals in the EB-1 category will have current priority dates as of July 1, 2018 and will be eligible for an immigrant visa (green card) except for EB-1 nationals of China and India (priority dates: January 1, 2012). Most EB-2 foreign nationals will also have current priority dates and be eligible for an immigrant visa except for EB-2 nationals of China (priority date: January 1, 2015) and India (priority date: March 15, 2009). EB-3 foreign nationals have current priority dates except for EB-3 nationals of China (priority date: January 1, 2013), India (priority date: November 1, 2008) and Philippines (January 1, 2017).

For family-based petitions, the F2A (spouses and children under 21 of lawful permanent residents) cut-off date is at June 22, 2016, except Mexico (June 8, 2016), while other family-based categories remain backlogged with the longest queue for F4 Philippines (brothers and sisters of U.S. Citizens) of March 22, 1995.

Cut-off dates on the Visa Bulletin do not always move forward in time. Visa retrogression occurs when more people apply for a visa in a particular category or country than there are visas available for that month. Retrogression typically occurs toward the end of the fiscal year as visa issuance approaches the annual category, or per-country limitations.
The current and upcoming July 2018 Visa Bulletin can be accessed at the U.S. Department of State website: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2018/visa-bulletin-for-july-2018.html.

DHS Proposes to Remove the International Entrepreneur Rule

The Department of Homeland Security (DHS) is proposing a rule to end the International Entrepreneur Rule (IE Final Rule), a program that allows certain foreign entrepreneurs to be considered for parole to temporarily come to the U.S. to develop and build start-up businesses in the U.S. In July 2017, DHS published a final rule to delay the implementation date of the IE Final Rule to March 2018, to give the DHS time to draft a rescission of the IE Final Rule. However, in December 2017, a federal court vacated the delay rule, requiring USCIS to begin accepting international entrepreneur parole applications consistent with the IE Final Rule. Now, DHS is proposing to eliminate the IE Final Rule because it believes that it represents an overly broad interpretation of parole authority, lacks sufficient protections for U.S. workers and investors, and is not the appropriate vehicle for attracting and retaining international entrepreneurs.

By statute, DHS has discretionary authority to parole individuals into the U.S. temporarily, on a case-by-case basis, for urgent humanitarian reasons or significant public benefit. After reviewing DHS parole programs in accordance with the Executive Order titled Border Security and Immigration Enforcement Improvements, issued in January 2017, DHS is proposing to remove regulations published as part of the IE Final Rule. DHS concluded that the IE Final Rule created a complex and highly-structured program that was best established by the legislative process rather than relying on an unorthodox use of the Secretary’s authority to “temporarily” parole, in a categorical way, aliens based on “significant public benefit.”

The Immigration and Nationality Act already provides for visa classifications that enable certain entrepreneurs to start businesses and work in the U.S., such as the E-2 nonimmigrant and EB-5 immigrant classifications. DHS is committed to reviewing all existing employment-based immigrant and nonimmigrant visa programs to ensure program integrity and protect the interests of U.S. investors and workers.

CPG Immigration Law Group will continue to monitor these developments and publish more information as they become available. Call us at (415) 371-1800 to set up an appointment with an attorney to discuss your specific concerns. You can also subscribe to our blog to receive updates.

USCIS Revises Accrual of Unlawful Presence for F, J, and M Nonimmigrants

On May 10, 2018, United Citizenship and Immigration Services (USCIS) released a policy memorandum that will fundamentally change the rules regarding “unlawful presence” as they apply to students (F-1), exchange visitors (J-1), and vocational students (M-1) nonimmigrants and their dependents in the U.S. The changes are designed to reduce the number of nonimmigrants who overstay their periods of admission and clarify how USCIS implements the unlawful presence grounds of inadmissibility. USCIS states that this new policy aligns with President Trump’s Executive Order: Enhancing Public Safety in the Interior of the United States.

According to the new policy guidance, F, J, and M nonimmigrants and their dependents, admitted or otherwise authorized to be present in the U.S. in duration of status (D/S) or admitted until a specific date, start accruing unlawful presence as outlined below:

F, J, or M Nonimmigrants Who Fail to Maintain Nonimmigrant Status Before August 9, 2018
An individual in F, J, or M nonimmigrant status who has failed to maintain his or her status before August 9, 2018, will start accruing unlawful presence based on that failure on August 9, 2018, unless he or she already started accruing unlawful presence on the earliest of the following:
• The day after DHS denied the request for the immigration benefit, if DHS made a formal finding that the individual violated his or her nonimmigrant status while adjudicating a request for another immigration benefit;
• The day after their I-94 expired; or
• The day after an immigration judge, or in certain cases, the Board of Immigration Appeals (BIA), ordered them excluded, deported, or removed (whether or not the decision is appealed).

F, J, or M Nonimmigrants Who Fail to Maintain Nonimmigrant Status on or After August 9, 2018
An F, J, and M nonimmigrant begins accruing unlawful presence due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:
• The day after they no longer pursue the course of study or the authorized activity, or the day after they engage in an unauthorized activity;
• The day after completing the course of study or program, including any authorized practical training plus any authorized grace period;
• The day after the I-94 expires; or
• The day after an immigration judge, or in certain cases, the BIA, orders them excluded, deported, or removed (whether or not the decision is appealed).

Under the new policy immigration officers are instructed to consider the following to determine the accrual of unlawful presence:
• Information contained in the systems available to USCIS;
• Information contained in the alien’s record; and
• Information obtained through a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), if any.

The policy will go into effect on August 9, 2018. USCIS is accepting public comments on this memo until June 11, 2018. CPG Immigration Law Group will continue to monitor these developments and publish more information as they become available. Call us at (415) 371-1800 to set up an appointment with an attorney to discuss your specific concerns. You can also subscribe to our blog to receive updates.

Automatic Termination of OPT for F-1 Students If They Transfer to a Different School or Begin Study at Another Educational Level

Under current regulations, F-1 students on Optional Practical Training (OPT) face automatic termination of their OPT and corresponding employment authorization document (EAD) if they transfer to another school or begin study at another educational level. Although the transfer to a different school or commencement of study at another educational level automatically terminates OPT authorization, F-1 students who continue to comply with all requirements to maintain their status will not be otherwise affected. These requirements include not working with a terminated EAD, since termination results in a lack of work authorization to work in the U.S. Failing to comply with this and other requirements has serious immigration consequences such as removal from the U.S. and bars on reentry to the U.S. Under the Immigration and Nationality Act, additional set of penalties apply to those who remain in the U.S. in violation of lawful nonimmigrant status who accrue unlawful presence. Please see USCIS Changing Policy on Accrued Unlawful Presence by Nonimmigrant Students and Exchange Visitors for more information regarding termination of your employment authorization under OPT and any impacts on your student status, including the possible accrual of unlawful presence.

Currently, U.S. Immigration and Customs Enforcement’s (ICE) Student and Exchange Visitor Program (SEVP) informs USCIS of the termination date, and the OPT termination is automatic under current regulations. Under the new process, USCIS will enter the EAD termination date into these systems after being notified by SEVP and notify students to provide them with an opportunity to correct any errors in the record via their designated school official (DSO). By implementing this new process, United States Citizenship and Immigration Services (USCIS) intends to strengthen the integrity of the F-1 and OPT programs, ensure consistency between SEVP and USCIS systems, and inform students of possible consequences of working with a terminated EAD.

CPG Immigration Law Group will continue to monitor these developments and publish more information as they become available. Call us at (415) 371-1800 to set up an appointment with an attorney to discuss your specific concerns. You can also subscribe to our blog to receive updates.