REMINDER: H-1B CAP STRATEGY TELECONFERENCE

In anticipation of the H-1B cap filing date of April 1, 2019, MU Law will be holding a free teleconference for our clients and friends on Wednesday February 6, 2018 at 2PM / 11AM PT.  Interested clients and friends can register for our webinar by clicking on the link below.

 

REGISTER HERE

Last year the H-1B cap was reached in the first week.  We expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2019.

 

H-1B Teleconference Agenda

 

   • H-1B Cap Basics and Projections
   • H-1B Dependency
   • H-1B issues for Staffing Companies and Third Party Placements
   • What is Third- Party Placement v. In-House work?
   • Employer-Employee relationships
   • The New H-1B lottery
   • H-1B electronic filing

 

Hot issues:

 
• Cap-gap for F-1s
• CPT / OPT maintenance
• NIV maintenance
• H-4 EAD rule
• H-1B amendments: lengthy processing times
• Top 10 things H-1B employers can do to stay compliant
• Legislative Update
• What we can expect from the Trump administration and the Republican congress.

 

Q&A

 

USCIS TO IMPLEMENT H-1B CAP RULE CHANGING MASTER’S CAP IN APRIL 2019 AND ADDING PRE-REGISTRATION REQUIREMENT IN APRIL 2020

The USCIS posted for public inspection a final rule changing the regulations governing H-1B cap-subject petitions.  This new makes two key changes to the H-1B cap:

 

1.  Master’s Cap Allocation.  The new rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the master’s cap. USCIS will technically re-engineer the way that it conducts the H-1B lottery.  The result of the re-engineering should mean that a slightly greater number of H-1B petitions will be approved for US master’s degree H-1B beneficiaries than under the current H-1B lottery system.  We previously explained this process on an earlier blog.  This change will be implemented on April 1, 2019.

 

2. Pre-Registration Requirement.  The rule introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions.  Under the new rule, all H-1B lottery petitions will need to be electronically pre-registered during the H-1B pre-registration period from April 1-7.  After the pre-registration period has concluded, USCIS will run the H-1B lottery.  All H-1B lottery winners will then submit the actual H-1B petition.  If implemented properly, this should save petitioners and the industry significant expense.

 

After considering public feedback, USCIS decided to suspend the electronic pre-registration requirement until the April 2020 cap season in order to complete user testing and ensure the system and process are fully functional.

USCIS will begin accepting H-1B cap petitions on April 1, 2019.

H-1B CAP STRATEGY TELECONFERENCE

In anticipation of the H-1B cap filing date of April 1, 2019, MU Law will be holding a free teleconference for our clients and friends on Wednesday February 6, 2018 at 2PM / 11AM PT. Interested clients and friends can register for our webinar by clicking on the link below.

 

REGISTER HERE

 

Last year the H-1B cap was reached in the first week.  We expect that the demand will be even greater this year.  It is imperative that all H-1B cap-subject petitions are filled on April 1, 2019.

 

H-1B Teleconference Agenda

 

·       H-1B Cap Basics and Projections

·       H-1B Dependency

·       H-1B issues for Staffing Companies and Third Party Placements

·       What is Third- Party Placement v. In-House work?

·       Employer-Employee relationships

·       The New H-1B lottery

·       H-1B electronic filing

 

Hot issues:  

 

·       Cap-gap for F-1s

·       CPT / OPT maintenance

·       NIV maintenance

·       H-4 EAD rule

·       H-1B amendments: lengthy processing times

·       Top 10 things H-1B employers can do to stay compliant

·       Legislative Update

·       What we can expect from the Trump administration and the Republican congress.

 

Q&A

 

USCIS WILL RESUME PREMIUM PROCESSING ON H-1B CAP CASES FILED IN APRIL 2018

USCIS will resume premium processing effective January 28, 2019 for all H-1B cap petitions filed in April 2018.  If a request for evidence (RFE) has been issued, the case can be upgraded to premium processing upon submission of the RFE Reply.

 

At present, H-1B extensions filed with the Nebraska Service Center are eligible for premium processing.
 

The previously announced suspension of premium processing for all other categories of H-1B petitions remains in effect. The USCIS plans to resume premium processing for the remaining categories of H‑1B petitions as agency workloads permit.

 

 

H-1B COMMENT PERIOD CLOSED

Last month USCIS published two proposed rules to the H-1B cap process.  As we noted on December 5, 2018:

 The two rules are:

1.    Electronic pre-registration for the H-1B cap.  This is a proposed rule that has been considered by USCIS since 2011.  Under the proposal, all H-1B lottery petitions will need to be electronically pre-registered during the H-1B pre-registration period from April 1-7.  After the pre-registration period has concluded, USCIS will run the H-1B lottery.  All H-1B lottery winners will then have 60 days to submit the actual H-1B petition.  If implemented properly, this should save petitioners and the industry significant expense.

2.    H-1B Masters Cap Allocation Preference.  USCIS will technically re-engineer the way that it conducts the H-1B lottery.  The result of the re-engineering should mean that a slightly greater number of H-1B petitions will be approved for US Masters Degree H-1B Beneficiaries than under the current H-1B lottery.  We previously explained this process on an earlier blog.

Now that the comment period has ended the USCIS must read and consider all of the comments, which were plentiful.  Many of the comments focused on the fact that rushing this proposal forward for the April 1, 2019 H-1B cap is a bad idea.  MU Law agrees that the USCIS is moving too fast with these recommendations.

The USCIS has not announced a timetable for a decision as to whether the proposed changes will be adopted and, if so, whether they will go into effect for April 2019.  It is however expected that they will make a decision by February.

JANUARY 2019 VISA BULLETIN

The Department of State has just issued the January 2019 Visa Bulletin. This is the fourth Visa Bulletin of Fiscal Year 2019. This blog post analyzes this month's Visa Bulletin.

January 2019 Visa Bulletin

Table A: Final Action Dates -- Applications with these dates may be approved for their Green Card (Permanent Residency card) or Immigrant Visa appointment.

EB  Class  All Other   CHINA        INDIA      PHIL'PNES     EB-1 01OCT17 15DEC16 01DEC16 01OCT17 EB-2 C 01AUG15 01APR09  C EB-3 C 08JUN15 01MAR09  22JUN17

Table B: Dates for Filing -- The DOS may work on applications with these dates. But the Visa cannot be approved until the date is current per Table A.

EB  Class	All Other	CHINA	INDIA	PHIL'PNES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	08SEP15	22MAY09	C
EB-3	C	01JAN16	01JAN10	01AUG17

MU Law Analysis (all references are to Table A unless noted)

All Other, Mexico: As we expected, the EB-1 category again moved several months. We expect continued steady movement in this category for All Other. We do not see any retrogression in the future for EB2 or EB3, other than the usual retrogression at the end of the Fiscal Year.

China: Likewise, the China EB-1 category progressed several months. This category may not move as fast as All Other in the next few Visa Bulletins. China EB-2 moved two months,
EB-3 did not advance, reflecting high demand. Still, we expect EB-3 to slightly outpace EB-2 in the next few Visa Bulletins.

India: India EB-2 and EB-3 did not move. We expect the slow/no progress to be standard for EB-2 in the first part of FY 2019. We are slightly more optimistic about India EB-3.

Philippines: The EB-3 date again also only moved up by week, which is slower than we would have liked to have seen. While over the course of FY2019, we should eventually see the EB-3 priority date extend into FY2018, we do not expect too much movement in the next few Visa Bulletins.

TWO PROPOSED H-1B CAP MODIFICATIONS

The USCIS has published two proposed rules that will change H-1B cap processes.  While the USCIS hopes that these two rules are finalized in time for the April 2019 H-1B cap, the USCIS has not yet committed to a timeline.  The public may comment on the two proposed rules until January 2, 2019.

The two rules are:

1. Electronic pre-registration for the H-1B cap.  This is a proposed rule that has been considered by USCIS since 2011.  Under the proposal, all H-1B lottery petitions will need to be electronically pre-registered during the H-1B pre-registration period from April 1-7.  After the pre-registration period has concluded, USCIS will run the H-1B lottery.  All H-1B lottery winners will then have 60 days to submit the actual H-1B petition.  If implemented properly, this should save petitioners and the industry significant expense.

2. H-1B Masters Cap Allocation Preference.  USCIS will technically reengineer the way that it conducts the H-1B lottery.  The result of the reengineering should mean that a slightly greater number of H-1B petitions will be approved for US Masters Degree H-1B Beneficiaries than under the current H-1B lottery.

US DEPARTMENT OF LABOR (DOL) RELEASES NEW LABOR CONDITION APPLICATION (LCA)

 Effective Monday, November 19, 2018, the DOL released a new LCA (Form ETA-9035) which must be used on all immigration filings going forward. A certified LCA must be included in immigration filings for H-1B, H-1B1, and E-3 status.  The DOL generally certifies an LCA approximately 7-10 days after submission of the LCA to the DOL.    

Certified and date-valid LCAs in the old format can still be used in immigration filings, provided the LCAs have unused slots in the appropriate filing category, e.g. new employment, continuation of employment without change, etc. 

For all immigration filings, the new LCA requires the legal business name of the end-client(s) as well as the street address of the worksite(s) where the employee will physically work.

For H-1B masters cap petitions, the new LCA requires:

o   The name of the institution that awarded the employee’s master’s degree;

o   The field of study in which the employee’s master’s degree was awarded;

o   The date on which the employee’s master’s degree was awarded; and

o   Documentation substantiating the employee’s master’s degree information.

MU’s employer checklists for H-1B, H-1B1, and E-3 filings have been updated to request this information from employers at case initiation. 

USCIS WILL NO LONGER ACCEPT PPS FOR H-1Bs EXCEPT EXTENSIONS, CAP EXEMPT INSTITUTIONS

In an unexpected move (although all-too-common for an increasingly erratic agency), the USCIS will no longer accept Premium Processing Service (PPS) for all H-1Bs, except for H-1B extensions with the same employer or H-1Bs for cap-exempt institutions, such as Universities or research organizations.

Effective September 11, 2018, PPS will not be available for H-1B cap petitions and H-1B amendments.  The ban on PPS will continue until February 19, 2019. 

The justification for the ban on PPS is to reduce overall H-1B processing times.  

If you are asking yourself how eliminating a fee-based premium processing service will reduce processing times, you are not alone.  The PPS is supposed to pay for itself.  This is yet another example of an agency that cannot get out of its own way.

USCIS BACKTRACKS: STEM OPT EMPLOYMENT AT THIRD-PARTY WORK-SITES IS NOW PERMITTED

USCIS has updated its Optional Practical Training Extension for STEM Students (STEM OPT) webpage indicating STEM OPT participants may engage in training experience at third party worksites as long as the all of the training obligations are met.  The employer must maintain a bona fide employer/employee relationship with the student.  Previously the USCIS had said that STEM OPTs could not work at third-party locations.

Any material changes in the student’s employment must be reported to the Designated School Official (DSO) within 5-10 business days.  These changes include any modifications to the training listed on the I-983, a change in the employer’s name or address, and termination of the student’s employment.

The USCIS’ backtracking was likely a result of a lawsuit filed in federal court.  That lawsuit, ITServe Alliance v. Nielsen, was filed by Attorney Jon Wasden.  Jon, who is a friend of MU Law, previously worked for the USCIS’ AAO Office.  He has filed several lawsuits on behalf of H-1B employees and H-1B employers.  If you have an egregious denial decision and would like to have Jon review your case, please contact him or contact MU and we an put you in touch with him.

CAN STEM OPTs WORK AT THIRD PARTY WORKSITES?

Because of two recent USCIS interpretive changes, Musillo Unkenholt LLC (MU Law) advises that STEM OPT workers do not work at third-party worksites under their SETM OPT work authorization until the USCIS issues better and clearer guidance on the issue. 

Working and training at third-party worksites is probably legal.  However, by working at the third-party worksite the STEM OPT trainee puts himself at risk for enormous negative immigration consequences, including a ten-year bar from entering or living in the United States.

USCIS’ APPARENT THIRD-PARTY WORKSITE PROHIBITION

Earlier this year, and without any warning or notice, the USCIS changed its webpage to include this key change:

the training experience may not take place at the place of business or worksite of the employer’s clients or customers because ICE would lack authority to visit such sites.

The USCIS’ justification for the third-party worksite prohibition is, apparently, because ICE (Immigration Customs Enforcement) would lack the authority to investigate at the third-party worksite. 

Curiously, ICE has not produced any guidance on this point.  ICE likely would be surprised to learn that they do not have the authority to investigate a worksite where it believed immigration fraud was being committed.

The website change alone is probably not good law.  There has been no regulatory change.  There has been no notice and comment period, something required for regulatory change.  The “ICE lacks investigative authority” justification for the prohibition against third-party worksites is weak.

If the only thing that USCIS had done was updated their webpage, then MU Law’s position might be that STEM workers could continue to work at third-party worksites, provided that the other qualifications of the program were being met, however, this is not the only change for F-1 students.

F-1 STUDENTS NOW ACCRUE UNLAWFUL PRESENCE FOR FAILURE TO MAINTAIN STATUS

A brand new USCIS policy, effective August 9, 2018, says that F-1 students including STEM OPTs will now accrue “unlawful presence” “the day after he or she engages in an unauthorized activity.”  Accordingly, after August 9, 2018, the USCIS is expected to find that STEM OPTs working at third-party worksites are engaging in “unauthorized activity” and are therefore “unlawfully present”.

Even worse, a USCIS official can retroactively find that an F-1 student engaged in “unauthorized activity”.  A number of leading university administrators have made this point directly to USCIS Director James Cissna.

This is a massive change in long-standing USCIS policy.  Under the prior interpretation, an F-1 student or OPT did not accrue unlawful presence until an immigration judge said so.  Engaging in “unauthorized activity” meant that an F-1 worker “failed to maintain status,” which is a lesser finding.

The distinction between “failing to maintain status” and “unlawful presence” is enormous:

• When someone fails to “maintain status” they must immediately leave the US but can ordinarily immediately reenter the US. 
• When someone is “unlawfully present” for more than 180 days, they must immediately leave the US and are barred from reentering the US for 3 years.  When someone is “unlawfully present” for more than 365 days, they must immediately leave the US and are barred from reentering the US for 10 years. 

Consider this hypothetical scenario:

August 9, 2018 – STEM OPT continues to work at a third-party worksite

April 1, 2019 – STEM OPT worker files an H-1B cap petition

May 1, 2019 – STEM OPT worker’s H-1B cap cases is selected in the H-1B lottery

August 10, 2019 – STEM OPT worker receives an RFE from USCIS asking for proof that he has only engaged in authorized activity.

September 20, 2019 -  H-1B is denied.  USCIS finds that STEM OPT worker’s third-party work was “unauthorized activity”.  USCIS also finds that the STEM OPT worker was “unlawfully present” from August 9, 2018 until September 20, 2019, a period of more than 365 days.  Consequently, the STEM OPT worker must immediately leave the US and cannot reenter the US for 10 years.

CONCLUSION

At this time, MU Law recommends that STEM OPT workers are not placed at third party worksites unless comprehensive analysis is done regarding the viability of the assignment.  STEM OPT workers at third party worksites run the risk of 3 and 10 year bars from reentry into the US.  It is our hope that USCIS provides greatly clarity on these points and engages the public on the issue, rather than creating law by fiat.

USCIS WILL RESUME PPS FOR ALL H-1B PETITIONS ON OCTOBER 3

AILA is reporting that USCIS will resume Premium Processing Service (PPS) for H-1B petitions, effective October 3.  Accordingly, PPS will again be allowed for H-1B transfers, amendments, and extensions.

USCIS previously restarted PPS for H-1B cap-subject petitions on September 18.  Earlier this summer, USCIS resumed PPS for H-1Bs for cap-exempt employers (e.g. research entities and universities), and H-1Bs for doctors.

USCIS allows an upgrade for previously filed a petition.  If you have filed an H-1B petition and would like your petitioned upgraded to PPS, please contact your MU attorney or staff member.

POST H-1B CAP 2017 & TRUMP ADMINISTRATION WEBINAR

MU VISA ADVISOR: POST H-1B CAP 2017 & TRUMP ADMINISTRATION WEBINAR 

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Come join us as MU Law explores the latest legal topics on the H-1B Cap 2017 & the Trump Administration by hosting a free educational webinar

Who's Invited?

Clients & Friends

When?

June 29, 2017 @ 3PM / 12PM PT

Where? 

The Webinar will take place on Livestorm.co 

Please click the link below to register

Please register for the conference at Livestorm.co

You will be provided a link for the event once registered! 

______________________________________________________________________________________________

This year, the H-1B cap was reached in the first week with approximately 199,000 petition filings. Our webinar will feature in a range of topics including:

Alternatives for employees not chosen in this year’s CAP; Preparing your employee for the consulate interview; H-1B Dependency Rule & Issues with staffing companies; H1-B Amendments; Site Visits, and more.

The webinar will also have a special update on the new Trump Administration. MU Law’s Chris Musillo, who has recently traveled to Washington DC, will provide an update on what potential changes will be coming to employment-based immigration considering the new administration and recently issues memos.

The webinar will last for approximately 90 minutes, including a live Q&A session at the end.

We hope to see you there! 

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For more information on the agenda of the webinar, please see below. Thank you.

1. H-1B Cap 
• Alternatives for employees not chosen in this year's CAP
• Preparing your employee for the consulate interview
• On-boarding an employee
2. H-1Bs in 2017
• H-1B Dependency Rule (LCA & 50/50 rule) 
• H-1B issues for Staffing Companies and Third-Party Placements
• What is Third-Party Placement v. In-House work?
• March 31, 2017 Computer Programmer Memo
• Rescinds the December 22, 2000 Terry Way memo issues to the Nebraska Service Center 
• Implications for future H-1B filings 
• H-1B Amendments 
• Short Term Placement Rule (30-day rule)
• Amendment pending but employee is now moving to new work site. What is the Employer's strategy? 
• Employee is still abroad but work site changes
• Pending H-1B CAP case but the assignment no longer exists 
• Site visits
• How can the Employer prepare for a site visit? 
• How can you prepare your employee for a site visit? 
3. Immigration in the era of the Trump Administration
• Traveling and Consular Process
• Potential regulatory changes 
• Potential legislative changes 
4. Q&A

USCIS COMPLETES DATA ENTRY OF H-1B CAP PETITIONS

USCIS has just announced that it has completed data entry of all fiscal year 2018 H-1B cap-subject petitions selected in their computer-generated random process.  It may take a week or so for all of the H-1B cap receipts to be delivered.  If a Beneficiary has not received an H-1B receipt notice in the next week or so, it stands to reason that they have not “won” the H-1B lottery.

Shortly, USCIS will begin returning all H-1B cap-subject petitions that were not selected.  USCIS is unable to provide a definite time frame for returning these petitions.  USCIS will issue an announcement once all of the unselected petitions have been returned.

In order to balance the distribution of H-1B cap cases, USCIS is transferring some Form I-129 H-1B cap subject petitions from the Vermont Service Center to the California Service Center.