USCIS BLOCKED FROM ENFORCING UNLAWFUL PRESENCE MEMO AGAINST F-1 AND OTHER STUDENTS

A federal district court judge has issued a nationwide preliminary injunction, effective immediately, which prohibits the USCIS from enforcing its "Accrual of Unlawful Presence and F, J, and M Nonimmigrants” Guidance Memo.  That memo penalized F, J, and M international students for overstaying or violating the terms of their visas in extremely harsh, unprecedented ways.  MU Law detailed that Guidance Memo in September. 

This is great news for F, J, and M nonimmigrants, including those who trained under CPT and OPT.

DOS: “CONTINUED AGGRESSIVE ADVANCEMENT” IN PHILIPPINE EB-3

The Department of State’s Visa Bulletin guru, Charlie Oppenheim, hosts monthly meetings with the American Immigration Lawyers Association.  Charlie Oppenheim is the Department of State’s Chief of the Control and Reporting Division. He is the officer who is responsible for producing the Visa Bulletin each month.

In this month’s “Check In With Charlie,” Mr. Oppenheim discussed Philippine EB-3, saying that Beneficiaries “should expect continued aggressive advancement in this category for the foreseeable future.”  He noted that there has not been an increase in demand for these visas.  Because of this lack of demand, “retrogression is unlikely to happen this FY since there are numerous visa numbers available in this category and it is already the third quarter of the federal FY.”

Other notes of interest:

EB-1: there should be little or no movement in any EB-1 category.

EB-2 Worldwide: will continue to be Current for the foreseeable future.

EB-2 and EB-3 India: slow or little progressions of one week or less, although EB-3 could move a little faster.  There has not yet been a surge of EB-2s “downgrading” to EB-3.

EB-2 and EB-3 China:  EB-2 could advance several months at a time, while EB-3 will advance a few weeks at a time.

MAY 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

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

May 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	PHILIPPINES
EB-1	01MAR18	22FEB17	22FEB17	01MAR18
EB-2	C	15MAY16	12APR09	C
EB-3	C	22AUG15	22JUN09	01JUN18

  

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	PHILIPPINES
EB-1	01SEP18	01OCT17	01OCT17	01SEP18
EB-2	C	01SEP16	01JUN09	C
EB-3	C	01JAN16	01APR10	01OCT18

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

All Other: The EB-1 category moved one month.  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: China EB-2 moved six weeks, moving about one year in 2019’s calendar months.  EB-3 moved ahead half as fast – about three weeks -- which reflects continued demand in EB-3, likely related to the many EB-3 “downgrades”.

India: There was very little movement in any of the Indian categories.  EB-1 will almost surely not move in FY 2019.  We are slightly more optimistic about India EB-3, which should continue to progress faster than EB-2.

Philippines: The EB-3 date showed great progress, improving three more months.  This continues a great year for EB3.  We expect continued accelerated progress in June’s Visa Bulletin.

USCIS RECEIVES 201,011 H-1B CAP PETITIONS

USCIS announced that it received 201,011 petitions during the filing period, including petitions filed for the advanced degree exemption.  This is notably more than the 190,000 H-1B petitions received during the April 2018 filing period).

USCIS is in the process of running the H-1B lottery and notifying H-1B cap winners.  Petitioners should expect about 36% of their H-1B cap filings (non-US masters degrees) to be H-1B cap winners.  Based on prior years, we will receive H-1B lottery winner receipts throughout April and May.  Starting in June, we will receive the H-1B lottery loser petitions.  Traditionally if you do not receive a winner receipt notice by June 1, you have probably lost the H-1B lottery.

H-1B CAP 2019 HAS BEEN REACHED

As expected, USCIS has received more than 85,000 H-1B cap-subject petitions on the very first day of H-1B cap filings.  They did not specify how many H-1B cap-subject petitions were received.  We expect to know the overage within the next few weeks.  Last year, the announcement happened on April 13.

USCIS will continue to accept and process petitions that are otherwise exempt from the cap. Petitions filed on behalf of current H-1B workers who have been counted previously against the cap. USCIS will continue to accept and process petitions filed to:

• Extend the amount of time a current H-1B worker may remain in the United States;
• Change the terms of employment for current H-1B workers;
• Amend the H-1B petition to notify the USCIS of the filing of a new LCA and/or geographic change in employment;
• Allow current H-1B workers to change employers; and
• Allow current H-1B workers to work concurrently in a second, contemporaneous part-time H-1B position. 

SEVEN THINGS TO REMEMBER ABOUT THE H-1B CAP

All H-1B cap cases must be filed by April 1, 2019.  In anticipation of that deadline, here are seven things to remember about the H-1B cap.

 

1. These types of cases are subject to the H-1B cap: 

·    International students working on an EAD card under an OPT or CPT program after having attended a U.S. school;

·     International employees working on a TN may need an H-1B filed for them in order for them to pursue a permanent residency (green card) case;

·     Prospective international employees in another visa status e.g. H-4, L-2, J-1, F-1;- H-1B workers with a cap exempt organization; and

·     Prospective international employees currently living abroad.

 

2. These types of cases that are not subject to H-1B cap: 

·     H-1B amendments/extensions/transfers

·     When the employee has been in H-1B status for less than 6 years

·    Trade Visas (H-1B1, E-3, TN-1) Chile, Singapore, Australia, Canada,  Mexico

·     MDs who have received a J-waiver of their 2 years foreign residency requirement.

·     H-1Bs filed by institution of higher education (or its affiliated or related nonprofit entities), a nonprofit research organization, or a government research organization.

 

3.  Employees with a U.S. master’s degree or higher get two chances at the H-1B cap.  The USCIS first runs an H-B cap lottery, including all cases.  This is for the 65,000 H-1B regular cap slots.  Then, the USCIS runs a Masters Cap H-1B lottery to determine 20,000 lottery winners. 

 

4.  Cap-Gap Rule: USCIS automatically extends the H-1B status of OPT F-1 students who win the H-1B lottery.  The OPT F-1 status is extended through October 1, at which point the status converts to H-1B by operation of law.

 

5. An Employee does not have to hold H-1B status for the employer to initiate green card process. This can be started while the employee is on F-1 or most other statuses.

 

6.  We do not recommend that F-1 students travel outside the US while their H-1B cap petition is pending at USCIS.  USCIS may consider the petition to be abandoned.  If the F-1 student does travel, the employee is required to apply for an H-1B visa abroad before re-entering the US.

 

7. The employee’s proposed worksite may not change until the H-1B CAP petition is approved.  If the worksite changes the USCIS is inclined to deny the case.  If possible, the H-1B cap petition should be upgraded via Premium Processing.  Upon approval of the H-1B, the employer can file an H-1B amendment.

STAFFING AND SERVICE COMPANIES UNDER ATTACK FROM USCIS

Staffing companies are under attack from the USCIS.  H-1B denial rates at service and staffing companies greatly exceed H-1B denial rates at non-staffing companies.  For instance, a recent Forbes article points out that,
 

“In FY 2018, USCIS denied 80% of the H-1B petitions for new (initial) employment for Capgemini, a French multinational, 61% for U.S. company Cognizant, and between 34% and 54% for IT services companies Syntel, Infosys, Mindtree and HCL America. To put these figures in perspective, major U.S. tech companies, including Amazon, Facebook and Apple, had 1% or 2% of their new H-1B petitions denied in FY 2018.”

The problem was once limited to IT staffing companies, but MU is aware of many healthcare staffing companies who are also seeing unprecedented RFEs.  A recent change to the LCA form now requires all H-1B employers to reveal client names and worksites. 

Adding to the concern is the long-rumored H-1B regulatory change that will cement current H-1B policies against third-party placement of H-1B workers, make a stricter definition of specialty occupation, and raise prevailing wages.  If past changes are any guide, these regulatory changes will probably have little basis in Congressional statute.

 

H-4 EAD ELIMINATION REGULATION TO BE ANNOUNCED SHORTLY

As we have mentioned several times, the Trump Administration  is seeking to eliminate 90,000 lawful jobs by ending the H-4/EAD rule.  This rule, which was first passed in February 2015, provides work authorization to spouses of H-1B workers, provided that the H-1B worker has an approved I-140. 

USCIS sent the new regulation, "Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization," to the Office of Management and Budget on February 20, 2019.  It is currently pending review. OMB is expected to publish a Notice of proposed rulemaking in the near future, although OMB has not released a timeline.  The publication of the notice will allow the public to offer notice and comment.  

After the notice and comment period, USCIS must review and consider the public’s comments, before publication of the final rule.  Unfortunately, it is not expected that the public’s comments will materially change the new rule’s core goal: the elimination of the H-4/EAD.

This needless attack against lawful workers is further proof that the Trump Administration is not at all interested in legal immigration, despite the President’s public statements.  The reality is that the President and his administration are only interested in harming immigrants: lawful and otherwise.

MARCH 2019 VISA BULLETIN: ANALYSIS AND PREDICTIONS

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

 

March 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	PHILIPPINES
EB-1	01JAN18	22FEB17	22FEB17	01JAN18
EB-2	C	01JAN16	09APR09	C
EB-3	C	08JUL15	22MAY09	01DEC17

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	PHILIPPINES
EB-1	01JUN18	01OCT17	01OCT17	01JUN18
EB-2	C	01MAY16	22MAY09	C
EB-3	C	01JAN16	01APR10	01MAR18

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

All Other: The EB-1 category moved one month.  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: China EB-2 moved three months, moving a total of a half year in just two calendar months.  EB-3 only moved one week, as demand continues in EB-3, likely related to the many EB-3 “downgrades”. 

India: There was very little movement in any of the Indian categories.  We are slightly more optimistic about India EB-3, which could continue to progress faster than EB-2.

 
Philippines: The EB-3 date showed great progress, improving four more months.  By next month, we should see the EB-3 priority date extend into FY2018.

MARIA SCHNEIDER BECOMES AN MU PARTNER

Musillo Unkenholt (MU) is pleased to welcome Maria T. Schneider as a partner to the law firm.  Schneider’s practice is focused on immigration matters, primarily in assisting US employers in hiring foreign workers for specialized positions and shortage occupations.  Schneider has been an attorney with MU since 2011 and will continue to represent clients from a range of industries, including healthcare, information technology, recruitment, staffing, construction, engineering, finance, and consulting in all phases of the immigration process.  Schneider’s clients include large public and private companies as well as small start-up, entrepreneurial ventures.  Schneider is a life-long resident of Cincinnati, attending Northern Kentucky University as an undergraduate and the University of Cincinnati College of Law.  Schneider currently serves on the Cincinnati Bar Association, Board of Trustees and teaches immigration law as an adjunct at the University of Cincinnati College of Law.

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.