As USCIS increases scrutiny of immigration filings, processing times for nearly all immigration categories has increased, as has the margin of error at agency service centers.  Liz Stern discusses changes within the agency, and how those changes are impacting employers and foreign nationals applying for US immigration benefits in a recent Law360 article.

USCIS has announced that starting February 19, 2019, it will resume premium processing service for all H-1B petitions (including change of employer or “port” petitions) filed on or before December 21, 2018.  Petitioners seeking to upgrade their pending H-1B petitions to premium processing must submit their request to the service center where the petition is pending.  In some instances petitions have been transferred to a service center other than the office where the petition was originally filed.  The premium processing request must be filed at the service center where the petition was transferred and a copy of the transfer notice must be submitted with the request.  If the premium processing request is sent to the wrong service center, USCIS will forward the request to the correct location.  However, the 15-day premium processing clock will not start until the premium processing request has been received at the correct center.  If a petitioner was issued a request for evidence (RFE) for a pending petition, it should include the RFE response with the premium processing request.  This follows last month’s USCIS announcement to resume premium processing for FY 2019 cap-subject H-1B petitions filed in April 2018.  There has been no update, yet, regarding the availability of premium processing for this year’s cap-subject petitions, which will be filed in April 2019.

Earlier this week USCIS published its final rule introducing an online pre-registration process for H-1B cap petitions and changing the order of the two lotteries for visa beneficiaries.  In reaction to USCIS’s announcement, Law360 spoke with immigration practitioners, including Mayer Brown’s Paul Virtue, about the impact of these changes on employers and the business community.  Read more at Law360.

The Department of Homeland Security (“DHS”) has posted a final rule regarding the H-1B cap selection process. The rule will be published in the Federal Register on January 31, 2019 and will go into effect on April 1, 2019.

The Final Rule

The posted rule is the final version of the proposed rule titled “Registration Requirement for Petitions Seeking to File H-1B Petitions on Behalf of Cap-Subject Aliens,” which was published for public comments on December 3, 2018.  During the 30-day comment period, the proposed rule received over 800 public comments. Continue Reading Department of Homeland Security Posts Final Rule Regarding H-1B Cap Filings

On January 25, 2019, US Citizenship and Immigration Services (USCIS) announced that the agency would reinstate premium processing for H-1B petitions filed last April under the FY 2019 annual quota (the “cap”), including those eligible for the advanced degree exemption (i.e., holders of US master’s degrees or higher). This reinstatement of premium processing is only available for pending petitions and will not apply to new submissions, as the FY 2019 cap quota has already been met.

The premium processing service permits employers to pay an additional fee of $1,410 to have an immigration benefit adjudicated within 15 days, and USCIS will return the additional fee to the employer if the benefit application is not timely adjudicated. Continue Reading USCIS to Resume Premium Processing for H-1B Cap-Subject Petitions Filed in April 2018 That Remain Pending

As the longest federal government shutdown in United States history endures, Law360 discusses how the lack of government funding has impacted the field of business immigration.  Although most business immigration processes remain largely unaffected, US Citizenship and Immigration Services, the State Department, the Department of Labor, Customs and Border Protection, and US immigration courts have all felt the strain of the shutdown.  To find out more, including Paul Virtue’s comments on the shutdown, read the article here.

Every January, employers go into high gear to prepare H-1B cap-subject petitions for filing on the first business day of April.  This year, employers must also monitor for potential regulatory changes to the filing process.  On December 3, 2018, the Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register titled “Registration Requirement for Petitioners Seeking To File H-1B Petitions on Behalf of Cap-Subject Aliens.”  The 30-day public comment period closed January 2, 2019, and employers remain in wait for the impact to this year’s cap-subject filings.  While President Trump tweeted about H-1B changes that “are soon coming,” it is not clear whether they relate to the proposed rule.

The proposed rule seeks to accomplish two goals: streamline the H-1B selection and filing process by creating a pre-registration system, and increase the chances of selection for H-1B petitions eligible for the advanced degree exemption by reversing the order in which the cap lotteries are run.

US Citizenship & Immigration Services (the agency responsible for immigration benefits within DHS) received over 800 comments on the proposed regulation, including comments from the US Chamber of Commerce, the American Medical Association, and the American Immigration Lawyers Association.  The public comments criticize the proposed timeline and logistics, identify impacts stretching beyond immigration law, and suggest that the proposed rule may face court challenges if implemented:

Continue Reading Impact of Proposed H-1B Rule on Annual Cap Filings

In a recent Bloomberg Law article discussing what 2019 has in store on the immigration front, Liz Stern remarks on the changing landscape of business immigration as USCIS challenges and narrows the definition of the H-1B specialty occupation visa category.  Although comprehensive immigration reform is not likely, Stern anticipates more litigation as businesses become increasingly frustrated with the shift in adjudication patterns, new regulations, and changes to specific immigration categories and benefits.  For more on what’s in store in the new year, read the article.

Mayer Brown attorneys, including partner Paul Hughes, filed a lawsuit in the US District Court of the Middle District of North Carolina, challenging the legality of the August 9, 2018 USCIS policy memorandum on the accrual of unlawful presence for F, J, and M visa holders.

If an individual accrues more than 180 days of unlawful presence, she is subject to a 3-year reentry bar. That bar grows to 10 years if the individual is unlawfully present for 365 days or more. Previously, USCIS calculated unlawful presence as beginning the day after an immigration officer or immigration judge determined that the holder of an F, J, or M visa is out of status. That policy provided necessary notice to individuals, providing them an opportunity to cure any status violation prior to the imposition of a reentry bar. This policy has controlled for more than 20 years.

On August 9, USCIS issued a policy memorandum that purports to create a fundamentally different policy regarding unlawful presence. Now, USCIS will backdate unlawful presence, beginning the clock on the date of the factual situation which rendered an individual out of status. Thus, when an immigration officer or judge determines that an individual is out of status, the result is an automatic 3- or 10-year reentry bar if more than 180 days have elapsed from the underlying factual circumstances, which is often the case.

Plaintiffs include Haverford College, The New School, Guilford College, and Foothill-De Anza Community College District, among others.  The universities argue that the revised policy is “intentionally designed to impose tens of thousands of reentry bars” of up to 10 years on holders of visas typically granted for academic purposes.  The complaint states that now it is “impossible for an individual to know with certainty what conduct will trigger such a reentry bar. An individual may commit conduct that he or she has no reasonable way of knowing will later cause an USCIS officer or immigration judge to later declare him or her ‘out-of-status,’ and—because of the new policy of backdating—will be immediately subject to a reentry bar once that decision is made.”

Read more here

In June 2018, USCIS circulated a new policy memo providing guidance on when cases should be referred for deportation proceedings and when Notices to Appear (“NTAs”) should be issued in instances where applicants are deemed inadmissible or deportable.  Implementation of the new policy was delayed as USCIS determined how exactly the new policy would be put into action.  While we have yet to see how implementation will take shape, the policy is now in force and will be incrementally rolled out.

Law360 discusses what the new policy means for foreign nationals whose status-bearing applications are denied.  The article quotes Paul Virtue who states that the memo is “clearly designed to ensure that a decision not to issue an NTA should rarely be taken.”  Read the article here.  USCIS has also released Q&As from its September 27, 2018 stakeholder teleconference on the new policy memo.