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Immigration Newsletter
April 2019 | Volume 11, Issue 1
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Greetings!
Now that we're through most of April, we've seen the end of the FY2020 H-1B cap filing season - likely the final cap season as we know it, given recent changes to cap filing procedures which will take effect next year. As with everything immigration-related over the past couple of years, there are numerous proposed changes in rules and policies, but not all details have been finalized. We will provide more information about the FY2021 cap procedures once USCIS announces the specific details.
In the meantime, USCIS announced that the FY2020 H-1B cap was met during the April 1 to April 5 filing period. The computerized lottery has been run, and petitioners are beginning to receive receipt notices for selected cases. We expect it will take USCIS several weeks to receipt all selected cases before it begins returning the unselected petitions from among the 201,011 total petitions that were received.
Below are summaries of the most recent immigration-related developments. Please note that our newsletter is primarily distributed to our employer clients, so we encourage you to share this information with your employees.
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Changes to the I-539 Form, New Biometrics Fee
Last month, USCIS made several changes to Form I-539, Application to Extend or Change Nonimmigrant status. This form is often used by our nonimmigrant clients' dependents to change to or extend H-4 or L-2 status, but can also be used to change or extend B-1 or B-2 status (among others). A single I-539 application can be filed for multiple family members requesting the same status.
The new I-539 form requires a separate supplement (Form I-539A) for each co-applicant which must be signed by the co-applicant or a parent (if under 14). Furthermore, USCIS has instituted a new $85 biometric services fee for every applicant and co-applicant, regardless of their age. All applicants and co-applicants on an application will be scheduled to have their biometrics gathered at the USCIS Application Support Center closest to the primary applicant's address, and those biometrics will need to be processed (i.e. background checks run) before the I-539 can be adjudicated.
In the past, USCIS expeditiously processed I-539 applications which were concurrently-filed with a premium processed H-1B or L-1 application as a courtesy. It is unlikely that this practice will continue, given the new biometrics requirement. In general, we anticipate that the new biometrics requirement will significantly lengthen processing times for I-539 applications.
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H-1B Premium Processing Update
After suspending large portions of the H-1B Premium Processing program for much of the last year, USCIS finally resumed premium processing for all cases beginning March 12. However, with regard to FY2020 cap-subject petitions, USCIS has restricted premium processing to select cases. Petitions which were filed requesting a change of status could be filed with a concurrent request for premium processing. The Premium Processing "clock" for those petitions which are selected in the random lottery will begin on May 20. Change of status petitions which are selected in the cap lottery and were not initially filed via premium processing cannot be converted to premium processing until May 20. USCIS anticipates that premium processing for other cap-subject petitions will not resume until at least June.
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Increased Scrutiny of F-1 Practical Training
Practical Training is available to F-1 students who need to work during school as part of their degree program or after graduation to gain on-the-job experience in their field. Curricular Practical Training (CPT) allows F-1 students to work off-campus as an integral part of their established degree curriculum. Students must maintain full-time enrollment during CPT employment, and CPT employment may not delay completion of the academic program. Optional Practical Training (OPT) allows F-1 undergraduate and graduate students to work for one year in a field related to their degree program, with an additional 24-month extension available to students who receive a Science, Technology, Engineering or Mathematics (STEM) degree. There are restrictions on cumulative amounts of CPT and OPT employment that are allowed, and individuals on OPT cannot be unemployed for more than 90 days of the OPT period (150 days under STEM extensions).
Over the past several months, we have seen an increase in RFEs requesting evidence of an H-1B beneficiary's earlier CPT and/or OPT employment, particularly where the employment occurred during a graduate-level program. The RFEs generally require proof that the student maintained their status during the Practical Training period (i.e. maintained a full course load during CPT employment; was not unemployed for more than 90/150 days during an OPT period). Such proof can include transcripts, employment verification letters, SEVIS status documents, and additional evidence that the CPT or OPT employment was authorized by the school and required for or related to the program of study.
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Additional H-1B and L-1-Related News
USCIS continues to closely scrutinize all H-1B petitions, particularly with regard to whether the subject position qualifies as a specialty occupation. For this purpose, USCIS refers to the Department of Labor's Occupational Outlook Handbook (OOH) to determine the educational requirements to enter a given occupation. If the OOH does not unequivocally state that a minimum of a bachelor's degree in a specific field of study is normally required to enter the particular occupation, then USCIS will likely issue an RFE. Common occupations that fall into this scenario are Computer Systems Analysts, Computer Programmers, and Market Research Analysts, among others. The attorneys at RSST Law Group will work with employers to identify potential alternative occupational categories in these situations, to structure a stronger initial H-1B case, and to identify a potential RFE response strategy.
Post-adjudication, we are seeing a continued increase in site inspections by the USCIS Fraud Detection and National Security division. At a recent site visit to one of our clients, the officer indicated that the division will be increasing inspections at L-1 worksites in the near future.
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Change to I-94 Numbers
Upon entering the United States, all nonimmigrants are assigned an I-94 arrival/departure record number by U.S. Customs & Border Protection (CBP). CBP has announced that, beginning in May 2019, the 11-digit I-94 number, currently numeric only, will become alphanumeric. I-94 numbers will remain 11 characters, with the first 9 assigned as numbers, the 10th a letter, and the final character a number.
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New H-1B Employer Data Hub
On April 1, USCIS launched a new
H-1B Employer Data Hub to provide information to the public regarding employers who petition for H-1B workers. Anyone can now search for H-1B petitioners by Fiscal Year (as far back as FY 2009), NAICS code (i.e. type of company), employer name, or location. USCIS anticipates that it will update the data on a quarterly basis. The stated purpose of the new data hub is to "give the public the ability to calculate approval and denial rates and to review which employers are using the H-1B program."
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Update on H-4 EAD Rescission
As we have previously reported, the Trump Administration remains intent on eliminating work authorization for select H-4 visa holders. On February 20, a Proposed Rule rescinding H-4 EADs was sent to the Office of Management and Budget (OMB) for review. USCIS has indicated it will publish the proposed rule as soon as OMB finishes its review. Once published, the public will have 30-60 days to submit comments on the proposed rule, after which point USCIS must review and incorporate all comments and proposed changes, have OMB review the final rule, then publish the Final Rule.
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Consular Changes and Updates
We wanted to make our readers aware of several recent updates with regard to Consular Services in China and India.
Beginning March 1, interviews for H and L visas in China are only being conducted at the U.S. Embassy in Beijing and the Consulates in Guangzhou and Shanghai. The Consulates in Chengdu and Shenyang are no longer offering H and L visa processing. Mission China indicates this change was made due to the volume and complexity of H and L cases, to ensure they have the proper resources and expertise to efficiently process them.
We are also seeing an increase in
Administrative Processing referrals for Indian and Chinese visa applicants. Once placed in Administrative Processing, it can take anywhere from a few days to several weeks (or longer) for security checks to clear, and for a visa to be issued. In our experience, the most common occupations of individuals sent to Administrative Processing are engineers, scientists, and dentists. We've recently seen an increase in administrative processing for software/IT engineers who work on contracted client projects, even if they are working in-house for their employer. If you have employees who will be applying for a visa stamp who may fall into one of these categories, we recommend they contact our office prior to traveling.
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E-2 Visa Extended to Israel
President Obama signed legislation to add Israel to the list of countries eligible for
E-2 treaty investor visas in June 2012, but only if Israel reciprocated; years of negotiations followed to establish the visa reciprocity conditions. Beginning May 1, the E-2 Investor Visa will finally become available to
Israeli nationals who wish to invest in a business in the United States.
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Social Security Administration Issuing No-Match Letters
In March, the Social Security Administration began issuing Employer Correction Request Notices (EDCOR, also known as "No-Match letters") to employers when it identifies at least one employee name and Social Security Number combination submitted on Form W-2 which does not match the Agency's records. The letter provides an opportunity for employers and employees to correct the inconsistency so that the employee earnings can be properly posted to the correct record. SSA has provided a
page with instructions for finding and resolving errors, along with FAQs.
The announcement of this new practice coincided with an
announcement from U.S. Immigration and Customs Enforcement (ICE) that worksite enforcement investigations and I-9 audits increased by more than 300 percent in FY2018.
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USCIS Clarifies Marijuana Policy
As more states make marijuana legal, USCIS issued a
Policy Alert last week which clarifies that violations of the Federal controlled substance law, which include violations involving marijuana, will create a conditional bar to establishing good moral character for naturalization, even where that conduct would not be an offense under state law. Federal law dictates that production, such as planting, cultivating, growing or harvesting, distribution, dispensing, or possession of marijuana may lead to immigration consequences.
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Immigrant Visa Numbers and Visa Bulletin
The Chief of the Visa Control and Reporting Division, U.S. Department of State (DOS) provides periodic analyses of current immigrant visa trends and future projections, beyond the basic visa availability updates provided in the monthly Visa Bulletin. Following is a synopsis of the current trends in immigrant visa number availability, as of April 2019:
- EB-1: Demand for EB-1 visas remains extraordinarily high - the category has used up to 25% more visa numbers this fiscal year than EB-2 or EB-3. Since EB-1 worldwide is using its allocation of visas for the year, this negatively impacts EB-1 India and EB-1 China, which historically have benefited from those otherwise-unused numbers. At this point, no movement in EB-1 China and India should be expected for the remainder of this Fiscal Year (which ends in October) - and the dates could, in fact, retrogress further. EB-1 worldwide may see minimal movement, potentially up to two months if demand decreases somewhat.
- EB-2 and EB-3 China: Demand for EB-3 China remains higher than demand for EB-2, so the EB-2 priority dates are still ahead of EB-3. EB-2 is expected to advance at a pace of up to several months, while EB-3 is expected to advance up to 3 weeks per month.
- EB-2 and EB-3 India: As expected, EB-3 India continues to advance more rapidly than EB-2, thus visa number availability for EB-3 India is now greater than EB-2, leading to the possibility of downgrade petitions should petitioners wish to file new EB-3 petitions for those with pending or approved EB-2 petitions.
There are five preference categories for the allotment of employment-based immigrant visa numbers, and four preference categories for family-based immigrant visa numbers. For purposes of this newsletter, we are including only the categories most applicable to our business clients. For additional information on other preference categories not included below, please contact the attorney with whom you work, or visit the
State Department's website.
Employment-Based Preference Categories
- First (EB-1): Priority Workers. Includes Persons of Extraordinary Ability, Outstanding Professors and Researchers, and Multinational Managers or Executives.
- Second (EB-2): Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability. Also includes National Interest Waiver (NIW) applicants.
- Third (EB-3): Skilled Workers, Professionals, and Other Workers.
Immigrant visa numbers are available only to an applicant whose priority date is earlier than the cut-off date listed in the charts below. "C" means current, i.e., numbers are available for all qualified applicants.
Following are the relevant Visa Bulletin
Final Action Dates
for May 2019 (i.e. dates that allow an application to be adjudicated):
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Employment-Based
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All Chargeability
Areas Except Those Listed
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China - mainland born
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India
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Philippines
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1st
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01MAR18
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22FEB17
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22FEB17
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01MAR18
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2nd
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C
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15MAY16
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16APR09
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C
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3rd
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C
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22AUG15
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01JUL09
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01JUN18
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Other Workers
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C
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01SEP07
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01JUL09
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01JUN18
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Family-Based Preference Category
- FB-2A: Spouses and Children of Permanent Residents.
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Family-Sponsored
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All Other Chargeability
Areas
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Mexico
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F2A
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15MAY17
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01MAY17
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Processing Times
While processing times at USCIS and the Department of Labor (DOL) fluctuate, both agencies attempt to adjudicate cases on a first in - first out basis and in the order in which they were received. Based on reported processing times from those agencies and recent case adjudications at RSST Law Group, following are the average processing times for the most commonly-filed employment-based applications and petitions:
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Application /
Petition Type
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Current Reported
Processing Times
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H-1B
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CSC: 7 - 10 months
VSC: 7 - 8 months
NSC: 4 - 6 months
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PERM
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3 - 4 months
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PERM Prevailing
Wage Requests
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3 - 4 months
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PERM audits
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7 - 8 months from
initial date of filing
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I-140
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4 - 6 months
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I-485
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6 - 13 months
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EAD
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3 - 4 months
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Advance Parole
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3 - 4 months
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Please keep in mind that these are average processing times, and there are always some outliers (i.e. cases that are approved more quickly, and some which take longer).
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Please Note that this newsletter does not constitute legal advice and is not a substitute for consulting with an attorney. Please contact us by phone or email if you have questions about any of the topics discussed here or if you have any other immigration or naturalization questions.
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RSST Law Group
50 Congress Street, Suite 200, Boston, MA 02109 | (617) 542-5111 |
www.rsstlawgroup.com
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