In this issue
- DHS Prioritizes U.S. Advanced Degrees in H-1B Final Rule; Electronic Registration Requirement Postponed
- USCIS Resumes Premium Processing for FY 2019 H-1B Cap Petitions
- USCIS Announces Countries Eligible for H-2A and H-2B Visa Programs
- State Dept. Suspends Visa Services in Caracas, Venezuela
- Trump Administration Implements Remain-in-Mexico Asylum Procedure
- USCIS Launches New Online Fee Calculator
- State Dept. Releases Outlook for Visa Number Availability Through May
- Interview Waiver Guidance Revised for Petitions to Remove Conditions on Residence
- State Dept. Issues Travel Advisory for China
- New Publications and Items of Interest
DHS Prioritizes U.S. Advanced Degrees in H-1B Final Rule; Electronic Registration Requirement Postponed
The Department of Homeland Security has published a final rule amending regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption and introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. The rule is effective April 1, 2019, although the electronic registration requirement will be suspended for one year, USCIS said.
Starting on April 1, USCIS will first select H-1B petitions (or registrations, once the registration requirement is implemented) submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions a number projected to reach the advanced degree exemption. Changing the order in which USCIS counts these allocations will likely increase the number of petitions for beneficiaries with a master's or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations, USCIS said. Specifically, the agency noted, the change will result in an estimated increase of up to 16 percent (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master's degree or higher from a U.S. institution of higher education.
USCIS will begin accepting H-1B cap petitions for fiscal year (FY) 2020 on April 1, 2019. The reverse selection order will apply to petitions filed for the FY 2020 H-1B cap season. Petitioners may file an H-1B petition no more than six months before the employment start date requested for the beneficiary. USCIS said it will provide H-1B cap filing instructions in advance of the filing season.
As noted above, after considering public feedback, USCIS has suspended the electronic registration requirement for the FY 2020 cap season "to complete user testing and ensure the system and process are fully functional." Once implemented, the electronic registration requirement will require petitioners seeking to file H-1B cap petitions, including those that may be eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. Only those whose registrations are selected will be eligible to file an H-1B cap-subject petition. USCIS said it expects that the electronic registration requirement, once implemented, "will reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS and petitioners."
Additionally, USCIS said it will publish a notice in the Federal Register to announce the initial implementation of the H-1B registration process in advance of the cap season in which it will implement the requirement. Before implementation, USCIS "will conduct outreach to ensure petitioners understand how to access and use the system." USCIS said it will announce the designated electronic registration period at least 30 days in advance for each fiscal year it is required.
According to reports, DHS pushed through the proposed rule to finalization quickly. The agency had published a notice of proposed rulemaking on December 3, 2018. Public comments were due January 2; USCIS was not closed during the federal government shutdown because it is funded by fees.
Hodkinson Law Group recommends that employers assess their need for H-1B employees and begin working on their H-1B petitions now. Annual demand typically far outstrips availability, so the visas are snapped up immediately.
Contact us for advice and help with preparing H-1B petitions. We recommend the following ways for employers to maximize their H-1B chances:
- Apply based on a master's degree from a U.S. nonprofit university as long as all degree requirements were completed before April 1
- Ensure a close match between the course of study and job duties
- Apply concurrently for optional practical training (OPT) or STEM OPT and H-1B
- Apply for "consular notification," not change of status, to preserve OPT if OPT lasts beyond October 1
- Apply for "change of status" if OPT expires before October 1 to preserve work eligibility under "cap gap" policy, but avoid travel
- Choose O*NET code and wage level carefully
- If more than one field of study could qualify a person for the position, explain task by task how the position requires the education
- Be careful of Level 1 wages. Instead, obtain an acceptable prevailing wage from a legitimate source other than the Department of Labor, offer to pay a higher wage from the outset, or explain why this particular job is both entry level and qualifies as a "specialty occupation"
- Consider other visa options if your employee is not selected in the H-1B lottery
- Check the USCIS website for changes to form, fee, and filing location
USCIS Resumes Premium Processing for FY 2019 H-1B Cap Petitions
U.S. Citizenship and Immigration Services (USCIS) announced that it has resumed premium processing as of Monday, January 28, 2019, for all fiscal year (FY) 2019 H-1B cap petitions, including those eligible for the advanced degree exemption (master's cap). Petitioners who have received requests for evidence (RFEs) for pending FY 2019 cap petitions should include their RFE response with any request for premium processing they may submit.
When a petitioner requests the agency's premium processing service, USCIS guarantees a 15-day processing time. If USCIS does not take certain adjudicative action within the 15-calendar day processing time, the agency refunds the petitioner's premium processing service fee and continues with expedited processing of the petition. USCIS said this service is only available for pending petitions, not new submissions, "because we have already received enough petitions to meet the FY 2019 cap."
The previously announced temporary suspension of premium processing remains in effect for all other categories of H-1B petitions to which it applied. USCIS said it plans "to resume premium processing for the remaining categories of H-1B petitions as agency workloads permit."
Read the USCIS announcement.
Read the previous notice about the suspension of premium processing and who is affected.
USCIS Announces Countries Eligible for H-2A and H-2B Visa Programs
U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS), in consultation with the Department of State (DOS), have announced the list of countries whose nationals are eligible to participate in the H-2A and H-2B visa programs in 2019.
For 2019, the agencies have agreed to:
- Add Mozambique and Samoa to the list of countries eligible to participate in the H-2A and H-2B visa programs;
- Add Paraguay to the list of countries eligible to participate in the H-2A visa program;
- No longer designate Ethiopia and the Philippines as eligible countries because they no longer meet the regulatory standards for the H-2A and H-2B visa programs; and
- No longer designate the Dominican Republic as an eligible country for the H-2B visa program because it no longer meets the regulatory standards for that program.
USCIS said factors that could result in the exclusion of a country or the removal of a country from the list include but are not limited to fraud, abuse, denial rates, overstay rates, human trafficking concerns, and other forms of noncompliance with the terms and conditions of the H-2 visa programs by nationals of that country.
Read the USCIS announcement.
Read the related Federal Register notice.
State Dept. Suspends Visa Services in Caracas, Venezuela
The U.S. Embassy in Caracas has suspended routine visa services due to the ordered departure of non-emergency personnel.
Due to the unrest in Venezuela, on January 24, 2019, the U.S. Department of State ordered non-emergency U.S. government employees to leave Venezuela. The U.S. embassy said the U.S. government has limited ability to provide emergency services to U.S. citizens in Venezuela. U.S. citizens are directed to contact U.S. Embassy Caracas for consular assistance. U.S. citizens residing or traveling in Venezuela "should strongly consider departing Venezuela," the embassy said. Commercial flights remained available. U.S. citizens in Venezuela are advised that if they stay in Venezuela, they ensure that they have adequate supplies to shelter in place, review personal security plans, and monitor local media for updates. The embassy's Twitter account notes that demonstrations are scheduled to take place throughout Venezuela on February 2, 2019, and may continue in the following days. Movement of U.S. government personnel will be restricted to the vicinity of the U.S. embassy.
Read the Department's announcement.
Read the U.S. embassy's security alert.
Trump Administration Implements Remain-in-Mexico Asylum Procedure
According to reports, the Trump administration is implementing a procedure to force certain asylum-seekers wishing to come to the United States to remain in Mexico while their cases are processed. The plan, to begin at the San Ysidro border crossing, reportedly includes busing asylum-seekers to their hearings at a courthouse in San Diego, California, from Tijuana, Mexico.
This activity follows a December 2018 announcement by Homeland Security Secretary Kirstjen Nielsen of a new "Migration Protection Protocols (MPP)," which will apply to individuals arriving in or entering the United States via Mexico without documentation. " 'Catch and release' will be replaced with 'catch and return,' " the announcement states.
The Department of Homeland Security (DHS) released information on the MPP on January 24, 2019. Among other things, the information notes that:
With certain exceptions, MPP applies to aliens arriving in the U.S. on land from Mexico (including those apprehended along the border) who are not clearly admissible and who are placed in removal proceedings under INA § 240. This includes aliens who claim a fear of return to Mexico at any point during apprehension, processing, or such proceedings, but who have been assessed not to be more likely than not to face persecution or torture in Mexico. Unaccompanied alien children and aliens in expedited removal proceedings will not be subject to MPP. Other individuals from vulnerable populations may be excluded on a case-by-case basis.
The December announcement outlines the following process:
- "Aliens trying to enter the U.S. to claim asylum will no longer be released into our country, where they often disappear before a court can determine their claim's merits.
- Instead, those aliens will be processed by DHS and given a 'Notice to Appear' for their immigration court hearing.
- While they wait in Mexico, the Mexican government has made its own determination to provide such individuals humanitarian visas, work authorization, and other protections. Aliens will have access to immigration attorneys and to the U.S. for their court hearings.
- Aliens whose claims are upheld by U.S. judges will be allowed in. Those without valid claims will be deported to their home countries."
It is unclear how many are expected to follow this process or whether Tijuana has sufficient capacity to keep asylum seekers safe while they await their proceedings in the United States. Litigation is considered likely. The American Immigration Lawyers Association called the new policy a "due process disaster for asylum seekers" and said that asylum seekers waiting in Mexico "would encounter substantial barriers to accessing U.S. attorneys."
Read Secretary Nielsen's December announcement.
Read a related Department of Homeland Security announcement.
Read the DHS released U.S. Customs and Border Protection data about apprehensions along the southwest border with the United States and related demographics.
USCIS Launches New Online Fee Calculator
U.S. Citizenship and Immigration Services (USCIS) has launched the Online Fee Calculator to assist in calculating the correct fee amount to include when filing forms with USCIS at an agency Lockbox facility.
USCIS said it developed the new Online Fee Calculator to help reduce the number of applications rejected due to incorrect fee amounts. Fee issues, including incorrect fee amounts, are consistently a leading cause of rejection. For applications that require fees, USCIS rejects forms submitted with an incorrect payment amount. The Online Fee Calculator will determine the exact filing and biometric fees to include with forms and "will always have the most up-to-date fee information," the agency said.
When using the Online Fee Calculator, filers select a form or combination of forms and answer a series of questions. The calculator then calculates the correct fee amount that the filer must submit.
USCIS said the Online Fee Calculator works on all browsers and on both desktop and mobile devices. To protect privacy, the agency noted, "it does not collect user data."
For forms filed at Lockbox facilities, USCIS accepts payment via check, money order, or credit card with Form G-1450, Authorization for Credit Card Transactions.
Click here for the Online Fee Calculator.
Read the USCIS announcement.
Click here for more information on payment, see the USCIS webpage on paying USCIS fees.
Click here for form G-1450.
State Dept. Releases Outlook for Visa Number Availability Through May
The Department of State's Visa Bulletin for the month of February 2019 notes the following with respect to employment-based visa number availability on a monthly basis through May:
EMPLOYMENT-based categories (potential monthly movement)
- WORLDWIDE (most countries): Up to two months
- China and India: Up to one month
- Worldwide: Current for the foreseeable future
- China: Up to three months
- India: Up to one week
- Worldwide: Current
- China: Up to three weeks
- India: Up to three months
- Mexico: Current
- Philippines: Rapid movement to generate demand
Employment Fourth: Current for most countries
- El Salvador, Guatemala, and Honduras: Up to one week
- Mexico: Rapid forward movement until limit is reached
Employment Fifth: The category will remain "Current" for most countries.
- China-mainland born: Up to one week
- Vietnam: Up to three weeks
The above final action date projections for the [employment-based category] indicate[s] what is likely to happen on a monthly basis through May. The determination of the actual monthly final action dates is subject to fluctuations in applicant demand and a number of other variables. It is also important to remember that by no means has every applicant with a priority date earlier than a prevailing final action date been processed for final visa action, with applicants often processing at their own initiative and convenience.
Click here for the Visa Bulletin for February 2019.
Interview Waiver Guidance Revised for Petitions to Remove Conditions on Residence
U.S. Citizenship and Immigration Services (USCIS) has released a policy memorandum revising interview waiver guidance for Form I-751, Petition to Remove Conditions on Residence. The guidance applies to all USCIS officers adjudicating Forms I-751, and supersedes previous guidance issued in 2005. The memo explains that in general, officers must interview a conditional permanent resident who has obtained lawful permanent resident status on a conditional basis and who is the principal petitioner on an I-751, unless the interview is waived. The new guidance addresses when officers may consider interview waivers.
The memo explains that USCIS officers may consider waiving an interview if they are satisfied that:
- They can make a decision based on the record because it contains sufficient evidence about the bona fides of the marriage and that the marriage was not entered into for the purpose of evading the immigration laws of the United States;
- For Form I-751 cases received on/after December 10, 2018, USCIS has previously interviewed the I-751 principal petitioner (for example, for a Form I-485 or Form I-130);
- There is no indication of fraud or misrepresentation in the Form I-751 or the supporting documentation; and
- There are no complex facts or issues that require an interview to resolve questions or concerns.
When determining whether to waive an interview, the considerations listed above apply regardless of whether the I-751 is filed as a joint petition or as a waiver of the joint filing requirement, the memo states. Cases involving fraud or national security concerns must be referred to the Fraud Detection and National Security Directorate according to local procedures.
Read the memo, which includes additional information.
State Dept. Issues Travel Advisory for China
The Department of State warned U.S. citizens on January 3, 2019, to exercise increased caution when traveling to China due to "arbitrary enforcement of local laws as well as special restrictions on dual U.S.-Chinese nationals." The travel advisory states that Chinese authorities have asserted broad authority to prohibit U.S. citizens from leaving China by using "exit bans," sometimes "keeping U.S. citizens in China for years."
The travel advisory states that China uses exit bans coercively to compel U.S. citizens to participate in Chinese government investigations, to lure individuals back to China from abroad, and to aid Chinese authorities in resolving civil disputes in favor of Chinese parties. In most cases, U.S. citizens become aware of the exit ban only when they attempt to leave China, the advisory states, and there is no way to find out how long the ban may continue. "U.S. citizens under exit bans have been harassed and threatened," the advisory notes.
The advisory warns that U.S. citizens may be detained without access to U.S. consular services or information about their alleged crimes. U.S. citizens may be subjected to prolonged interrogations and extended detention for reasons related to "state security." Security personnel may detain and/or deport U.S. citizens for sending private electronic messages critical of the Chinese government.
The advisory also notes that China does not recognize dual nationality. U.S.-Chinese citizens and U.S. citizens of Chinese heritage may be subject to "additional scrutiny and harassment," and China may prevent the U.S. Embassy from providing consular services, the advisory states.
Among other things, the advisory recommends that those traveling to China enter on their U.S. passports with a valid Chinese visa; enroll in the Smart Traveler Enrollment Program; and have a contingency plan.
Click here for the advisory, which includes additional information.
New Publications and Items of Interest
The latest E-Verify webinar schedule from USCIS is available.
Advisories and tips:
- Community Advisory: Social Media, Criminalization, and Immigration has been published by the National Lawyers Guild's National Immigration Project. This advisory summarizes ways in which immigration agents may use social media against those in removal proceedings or involved in criminal cases.
- How to safeguard your data from searches at the border is the topic of several recent articles and blogs. See examples here and here.
- Listings and links to cases challenging executive orders, and related available pleadings
Government Agency Links
Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State's latest Visa Bulletin with the most recent cut-off dates for visa numbers: