March 2019 Newsletter
In This Issue
Trump Administration Moves Ahead on Reversing H-4 EADs
On February 20, 2019, the Trump administration sent a proposed rule to the Office of Management and Budget (OMB) for review that would halt work authorization for H-4 spouses of H-1B visa holders in the United States. If OMB approves, the administration is expected to move forward with the regulatory process, including publication of the proposed rule in the Federal Register and requesting public comments. Publication of a final rule could take months, and new legislation or lawsuits could have an impact. It is also unclear whether the more than 90,000 current H-4 spouses with work authorization, mostly women from India, will be exempted from the final rule. Historically, in similar situations, the Department of Homeland Security (DHS) has allowed current EADs to expire. As of now, H-4 visa holders can still apply for and work under H-4 EADs.
According to information DHS filed with OMB, "DHS anticipates that there would be two primary impacts [of the rule] that DHS can estimate and quantify: the cost-savings accruing to forgone future filings by certain H-4 dependent spouses, and labor turnover costs that employers of H-4 workers could incur when their employees' EADs [employment authorization documents] are terminated. Some U.S. workers would benefit from this proposed rule by having a better chance at obtaining jobs that some of the population of the H-4 workers currently hold, as the proposed rule would no longer allow H-4 workers to enter the labor market early."
The Trump administration has long vowed to rescind the H-4 work authorization program, which has allowed certain H-4 spouses to apply for EADs since 2015. It is unclear what prompted the sudden move forward with the rule, after a long delay. In December, the D.C. Circuit Court of Appeals allowed a lawsuit against the H-4 program to proceed. That case was filed by "Save Jobs USA," a group of technology workers who say the H-4 program takes away jobs from U.S. workers. Natalie Tynan, a former DHS employee, said, "In general from an agency's perspective, the agency prefers to issue its regulations rather than have the courts opine on what the regulations should say. So any opportunity to moot out litigation is a positive one for the agency."
Read the details on the proposed rule.
Read the OMB notice.
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Premium Processing Resumes for H-1B Petitions Filed by December 21
U.S. Citizenship and Immigration Services (USCIS) announced that it has resumed premium processing for all H-1B petitions filed on or before December 21, 2018.
Those who received a transfer notice for a pending H-1B petition and are requesting premium processing service must submit the premium processing request to the USCIS service center now handling the petition. They should also include a copy of the transfer notice with the premium processing request to avoid possible delays, USCIS said. Additionally, those who received a request for evidence (RFE) for a pending petition should also include the RFE response with the premium processing request. If the petition was transferred and the premium processing request is sent to the wrong center, USCIS said it will forward it to the petition's current location. However, the premium processing clock will not start until the premium processing request has been received at the correct center.
USCIS noted that when an H-1B petitioner properly requests the agency's premium processing service, the agency guarantees a 15-day processing time. "If we do not take certain adjudicative action within the 15-calendar day processing time, USCIS refunds the petitioner's premium processing service fee and continues with expedited processing of the petition," USCIS said.
A previously announced temporary suspension of premium processing remains in effect for H-1B petitions to which it applied that were filed on or after December 22, 2018. On January 28, 2019, USCIS resumed premium processing for FY 2019 cap-subject petitions, including those eligible for the advanced degree exemption. USCIS said it plans to resume premium processing for the remaining categories of H-1B petitions "as agency workloads permit."
Read the USCIS announcement, which includes instructions on where to send a premium processing request if USCIS has transferred the petition.
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Trump Administration Increases Scrutiny, RFEs for H-1B Petitions
According to statistics released by U.S. Citizenship and Immigration Services, the percentage of H-1B cases with requests for evidence (RFEs) has greatly increased. In the first quarter of fiscal year (FY) 2017, the rate of H-1B RFEs was less than 30%. In the first quarter of FY 2019, that rate skyrocketed to 60%. At the same time, the percentage of H-1B completions with an RFE that were approved has fallen, from almost 80% in the first quarter of FY 2017 to about 60% in the first quarter of FY 2019.
Approval rates were much higher for certain large companies; Apple, Facebook, Google, Intel, and Microsoft reportedly all had 99% approval rates; Amazon and Cisco had a 98% approval rate.
According to reports, a frequent reason for the RFEs was asking companies to prove that the offered job was in a "specialty occupation." Other questions related to valid employer-employee relationships and specific assignments. Numerous lawsuits have been filed in federal court challenging recent H-1B denials.
Click here for the USCIS statistics.
Read an article about several lawsuits.
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USCIS to Issue New Version of Form I-539 and New I-539A on March 8
U.S. Citizenship and Immigration Services (USCIS) has announced that the revised Form I-539, Application to Extend/Change Nonimmigrant Status, and new Form I-539A, will be published on March 8, 2019, not March 11 as previously reported. USCIS will accept the old form through March 21.
Form I-539 is used for a variety of application types, including:
Read the USCIS announcement.
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House Representatives Send USCIS Inquiry re "Alarming Growth in Processing Delays"
Eighty-six Democratic members of the House of Representatives sent a letter on February 12, 2019, to U.S. Citizenship and Immigration Services (USCIS) Director Lee Francis Cissna, expressing their "grave concerns about the alarming growth in processing delays" at USCIS and requesting "prompt and detailed" responses to a series of related questions. "Clearly, policy changes implemented by the current administration in 2017 and 2018 have increasingly shifted the agency away from its service-oriented mission," the letter states. "Rather than continuing to seek ways to simplify and streamline its benefit-delivery systems, USCIS now appears more focused on erecting barriers to the benefits it administers, including by significantly delaying adjudications."
The letter notes that as of the end of fiscal year (FY) 2017, the Department of Homeland Security reported a net backlog of more than 2.3 million USCIS cases, which was more than double the backlog reported after FY 2016.
The letter asks for responses to questions about, among other things, the causes of the backlog; the use of "extreme vetting"; USCIS's reversal of longstanding guidance on deference toward prior determinations regarding nonimmigrant employment extension petitions; and USCIS's proposed FY 2019 budget, which requested the transfer of over $200 million from USCIS to U.S. Immigration and Customs Enforcement.
The letter, which notes that USCIS was created by congressional mandate, asks USCIS how it intends to reduce and eliminate processing delays while ensuring fairness and quality and not passing costs for "the agency's inefficiencies" on to the applicants and petitioners "experiencing hardship due to USCIS's crisis-level delays."
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March Visa Bulletin Shows Progress
The Department of State (DOS) has released the Visa Bulletin for March 2019, showing modest progress for EB-1 for all chargeability areas as well as EB-2 for China and India; EB-3 and Other Workers China, India, and the Philippines; and EB-5 China and Vietnam, with the remainder of the priority dates remaining Current.
The specific changes in the Final Action Cut-Off Dates, or priority dates, from the February to the March Visa Bulletin are:
Click here for the March 2019 Visa Bulletin.
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H-2B Cap Reached for FY 2019
U.S. Citizenship and Immigration Services (USCIS) announced that it has received enough petitions to meet the congressionally mandated H-2B cap for the second half of fiscal year (FY) 2019. February 19, 2019, was the final receipt date for new cap-subject H-2B temporary nonagricultural worker petitions requesting an employment start date before October 1, 2019. USCIS will reject new cap-subject H-2B petitions received after February 19 that request an employment start date before October 1, 2019.
On February 19, the number of beneficiaries USCIS received petitions for surpassed the total number of remaining H-2B visas available for the H-2B cap for the second half of FY 2019. In accordance with regulations, USCIS said it determined that it was necessary to use a computer-generated process, commonly known as a lottery, to ensure the fair and orderly allocation of H-2B visa numbers to meet, but not exceed, the remainder of the FY 2019 cap. On February 21, USCIS conducted a lottery to randomly select petitions from those received on February 19. As a result, USCIS assigned all petitions selected in the lottery the receipt date of February 22. Premium processing service for petitions selected in the lottery also began on that date.
USCIS continues to accept H-2B petitions that are exempt from the congressionally mandated cap. This includes petitions for:
Also, a new letter sent on February 22, 2019, from the H-2B Workforce Coalition urges the Department of Homeland Security to add H-2B numbers as authorized by the Fiscal 2019 Consolidated Appropriations Act. The 40-page letter, endorsed by hundreds of employers and organizations, notes:
Without immediate action, many employers across the country will be without the critical workforce they need to operate this spring and summer. These businesses will not be able to fulfill contracts. They will be forced to turn away customers and may need to lay off American workers whose jobs are supported by H-2B workers. In some cases, they will be compelled to shut down their operations entirely. ... The H-2B program is essential to employers who cannot find local temporary workers to fill jobs in seafood processing, horse training, hospitality and amusement parks, forestry, landscaping, circuses, carnivals, food concessionaires, swimming pool maintenance, golf courses, stone quarries and other seasonal industries. These seasonal businesses need H-2B workers to supplement their American workforce. The H-2B program relies on well-vetted returning workers who come to the U.S. for seasonal employment and then go home. These workers are not immigrants. They provide an opportunity for U.S. businesses to operate at a greater capacity, retain their full-time workers and contribute to their local economy.Read the USCIS notice.
Read the letter from the H-2B Workforce Coalition.
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Applicants Can Now Request Certificates of U.S. Citizenship Online
U.S. Citizenship and Immigration Services (USCIS) announced that applicants can now complete and file online Forms N-600, Application for Certificate of Citizenship, and N-600K, Application for Citizenship and Issuance of Certificate Under Section 322.
Applicants can file Form N-600 to obtain a Certificate of Citizenship for themselves or their minor children if they:
Other forms available for online filing include:
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New Publications and Items of Interest
The latest E-Verify webinar schedule from USCIS is available.
Advisories and tips:
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:
Hodkinson Law Group News
Kehrela's current challenge is preparing for her daughter's wedding in April. Her older daughter married in November last year so planning two weddings in six months has kept her very busy outside business hours. While Kehrela has been busy wedding planning, in February Sharon hiked the Paige Big Circuit, an 86 mile challenging hike in Patagonia, Chile. Tasha's exciting news is that she and her husband are buying their first home and are preparing for their upcoming move.