News & Events 2018-07-13T18:17:29+00:00

News & Events

Your source for immigration news and information.

H-1B Notice of Proposed Rule-making

On November 30, 2018, USCIS issued a notice of proposed rulemaking which could affect the H-1B Lottery for new filings in April. A Notice of Proposed Rulemaking is the first step in changing Federal administrative procedure so this is very early in the process but it indicates a real change. We would like to explain the changes since it could be a significant change in processing.  Briefly, according to the notice, USCIS intends to implement a system whereby an H-1B employer seeking a new H-1B would register the company, the position, and the prospective employee with USCIS for purposes of the H-1B cap lottery in an abbreviated application.  The lottery would then be conducted based on these abbreviated filings.  Only those cases selected in the lottery would need to file a complete petition. This could be a welcome change to the H-1B lottery process, lowering the costs of filing, depending on how it is implemented. In addition, USCIS would complete the Master’s Cap lottery before the Regular Cap lottery, which could increase the chances of success for Master’s degree candidates.

How Should Petitioners and Beneficiaries Prepare for the Upcoming H-1B Cap Season?

To be clear, the timing of this change is very uncertain. It seems very unlikely that USCIS can finalize and implement the proposed regulation before next April, given the notice and comment requirements and technical challenges to implementation. So that we are not left unprepared to file for this critical deadline, Christoffersen Law will plan to prepare H-1B cap subject petitions for FY2020 on March 29, 2019 for an April 1 filing as we have in the past.

Summary:
For those of you who are interested in the details of the proposed rule, the following summary has been provided by the American Immigration Lawyer’s Association (AILA):

“On November 30, 2018, the Department of Homeland Security (DHS) announced a notice of proposed rulemaking that would require petitioners seeking to file H-1B cap-subject petitions to register electronically with the U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. Under the proposed rule, USCIS would also reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced degree exemption. The proposed regulation was published in the Federal Register on Monday, December 3, 2018. USCIS will accept public feedback on the proposed regulation until January 2, 2019.

Electronic Registration Process

Under the proposed regulation, petitioners seeking to file H-1B cap-subject petitions would be required to register electronically with USCIS during a designated registration period. The electronic registration period would begin at least 14 calendar days before the first date the H-1B filing window opens each fiscal year, commonly April 1, and would remain open for at least 14 calendar days. USCIS would give at least 30 calendar days’ notice of the registration period on the USCIS website.

USCIS would then conduct the annual H-1B lottery from the pool of timely-filed electronic registrants. The rule proposes that petitioners whose petitions are selected will be notified that they are eligible to file an H-1B petition within a designated filing period. The duration of the filing period for registrants who are selected would be at least 60 days. According to the proposal, a registrant therefore could wait until they have been notified of selection before submitting the corresponding H-1B petition on behalf of the beneficiary named in the selected registration. USCIS would hold some unselected H-1B registrations in reserve so that additional cases could be filed if the quota is not reached due to petition rejections, denials or withdrawals, or if an employer does not file an H-1B petition on behalf of selected beneficiary. USCIS could reopen registrations if more cases are needed to fulfill the annual quota.

The registration process would require basic information from both the employer and the beneficiary, including:

  • the employer’s name, identification number (EIN), and address;
  • the employer’s authorized representative’s name, job title, and contact information;
  • the beneficiary’s name, date of birth, country of birth, country of citizenship, gender, and passport number, as well as whether the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education;
  • the employer’s attorney or accredited representative, if applicable; and
  • any additional basic information requested by the registration system or USCIS.

Employers would also be required to attest that they intend to file an H-1B petition for the beneficiary in the position for which the registration is filed, among other attestations.

Petitioners would need to file a separate registration for each beneficiary and would be limited to one registration per beneficiary for the same fiscal year. USCIS is not proposing to charge a fee for electronic registration at this time.

Allocation of H-1B Cap Numbers

The second major change proposed by DHS is to reverse the order by which the agency selects H-1B petitions under the H-1B cap and the advanced degree exemption. Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days in which H-1B cap petitions may be filed, the advanced degree exemption beneficiaries are selected before the H-1B cap beneficiaries.

The proposed rule would reverse the selection order and count all applicants towards the number projected as needed to reach the regular H-1B cap first. Once a sufficient number of applicants have been selected for the H-1B cap, USCIS would then select applicants towards the advanced degree exemption. USCIS projects that this change in the process would result in a 16% increase in the number of selected beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

Severability Clause

The proposed rule contains a severability clause which provides that DHS could continue to implement either the electronic registration system or the allocation process by which the agency would select H-1B petitions under the H-1B cap and the advance degree exemption independently in the event it cannot implement the both together, for example, if one of the processes is enjoined or invalidated by a court.

Timeline for Finalizing the Regulation

USCIS has indicated it would like to finalize and implement the regulation and the electronic registration system in time for the opening of the upcoming Fiscal Year (FY) 2020 H-1B cap filing season on April 1, 2019. However, the likelihood that USCIS will finalize both by April 1, 2019 is slim, given the tight timeframe by which the agency must complete the regulatory process.

The 30-day notice and comment period opened on December 3, and will remain open until January 2, 2019. USCIS must then review the comments and any final version of the regulation must address concerns raised by the public. Before a final rule can be published, it would first be reviewed by the Office of Management and Budget (OMB). Once the rule is finalized, the government would identify a date for the rule to go into effect.

In the notice of proposed rulemaking, USCIS acknowledges that it might not be possible to implement the electronic registration process in time for FY2020 H-1B cap filing season, particularly if additional user testing and vetting of the new system is required. Thus, if the rule is finalized as proposed, but there is insufficient time to implement the registration system in time for the FY2020 cap selection process, USCIS could suspend the electronic registration system for the upcoming H-1B filing season, and continue to accept complete H-1B petitions with supporting documents as it has done in the past.”

December 11th, 2018|

Opinion Piece: America is Rejecting More Legal Immigrants than Ever Before

An opinion piece from the New York Times, dated November 15, 2018, discusses increasing and often arbitrary H-1B denials and RFEs from USCIS: https://www.nytimes.com/2018/11/15/opinion/trump-legal-immigrants-reject.html.

November 26th, 2018|

December 2018 Visa Bulletin

Final Action Dates for EB1 remain backlogged for the month of December, 2018: The final action date for EB1 shifted slightly to July 1, 2017 for all areas except China and India, which are backed up to September 1, 2016.  For individuals who are not current but who are interviewed at USCIS during this time, post-interview the file will be sent to the National Benefits Center awaiting a current visa number.

The December 2018 visa bulletin lists the following EB2 and EB3 final action dates:

EB-2 Worldwide and all areas except India and China: Action Date = current
EB-2 India: Action Date = April 1, 2009 (1 week movement)
EB-2 China: Action Date = July 1, 2015

EB-3 Worldwide and all areas except India and China: Action Date = current
EB-3 India: Action Date = March 1, 2009 (slight forward movement)
EB-3 China: Action Date = June 8, 2015 (movement of only one week)

It is notable that USCIS has indicated that adjustment of status applicants may use the filing dates for the month of December. This date allows for filing but not approval, which is still a benefit to applicants.  For applicable dates, see the complete visa bulletin at: https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2019/visa-bulletin-for-december-2018.html.

For Family Cases, the F2A final action date shifted slightly to October 8, 2016 for all areas, except Mexico, which moved to September 22, 2016.

November 26th, 2018|Tags: , , , |

November 2018 Visa Bulletin

The visa bulletin hardly moved for the month of November 2018.

EB1 remains backlogged. The final action date for EB1 remains April 1, 2017 for all areas except China and India, which are still backed up to June 1, 2016.  For individuals who are interviewed at USCIS during this time, post-interview the file will be sent to the National Benefits Center awaiting a current visa number.  Note that this is consistent with the September Visa Bulletin, which suggested that little forward movement is anticipated before December.

The November 2018 visa bulletin hardly jumped forward in other areas. It lists the following EB2 and EB3 final action dates:

EB-2 Worldwide and all areas except India and China: Action Date = current
EB-2 India: Action Date = March 26, 2009 (same)
EB-2 China: Action Date = May 15, 2015

EB-3 Worldwide and all areas except India and China: Action Date = current
EB-3 India: Action Date = January 1, 2009 (same)
EB-3 China: Action Date = June 1, 2015 (same)

For Family Cases, the F2A final action date shifted slightly to September 15, 2016 for all areas, except Mexico, which moved forward one month to September 1, 2016.

October 11th, 2018|Tags: , , , |

CBP Statement on Legalization of Marijuana in Canada

CBP Statement on Canada’s Legalization of Marijuana and Crossing the Border

Release Date:
September 21, 2018

UPDATED: 10/09/2018

 

U.S. Customs and Border Protection enforces the laws of the United States and U.S. laws will not change following Canada’s legalization of marijuana. Requirements for international travelers wishing to enter the United States are governed by and conducted in accordance with U.S. Federal Law, which supersedes state laws. Although medical and recreational marijuana may be legal in some U.S. States and Canada, the sale, possession, production and distribution of marijuana or the facilitation of the aforementioned remain illegal under U.S. Federal Law. Consequently, crossing the border or arriving at a U.S. port of entry in violation of this law may result in denied admission, seizure, fines, and apprehension.

 

CBP officers are thoroughly trained on admissibility factors and the Immigration and Nationality Act, which broadly governs the admissibility of travelers into the United States.  Determinations about admissibility and whether any regulatory or criminal enforcement is appropriate are made by a CBP officer based on the facts and circumstances known to the officer at the time.

 

Generally, any arriving alien who is determined to be a drug abuser or addict, or who is convicted of, admits having committed, or admits committing, acts which constitute the essential elements of a violation of (or an attempt or conspiracy to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance, is inadmissible to the United States.

 

A Canadian citizen working in or facilitating the proliferation of the legal marijuana industry in Canada, coming to the U.S. for reasons unrelated to the marijuana industry will generally be admissible to the U.S. however, if a traveler is found to be coming to the U.S. for reason related to the marijuana industry, they may be deemed inadmissible.

 

CBP officers are the nation’s first line of defense in preventing the illegal importation of narcotics, including marijuana. U.S. federal law prohibits the importation of marijuana and CBP officers will continue to enforce that law.

Last modified:
October 9, 2018
https://www.cbp.gov/newsroom/speeches-and-statements/cbp-statement-canadas-legalization-marijuana-and-crossing-border
October 11th, 2018|Tags: , |

October 2018 Visa Bulletin

EB1 is backed up for everyone. The priority date is April 1, 2017 for all areas except China and India, which are backed up to June 1, 2016.  For individuals who are interviewed at USCIS during this time, post-interview the file will be sent to the National Benefits Center awaiting a current visa number.  The September Visa Bulletin suggested that little forward movement is anticipated before December.

The October 2018 visa bulletin jumped forward in EB2 as is common at the beginning of the visa year. It lists the following EB2 and EB3 final action dates:

EB-2 Worldwide and all areas except India and China: Action Date = current
EB-2 India: Action Date = March 26, 2009
EB-2 China: Action Date = April 1, 2015

EB-3 Worldwide and all areas except India and China: Action Date = current
EB-3 India: Action Date = January 1, 2009
EB-3 China: Action Date = June 1, 2015

For Family Cases, the F2A final action date shifted to August 22, 2016 for all areas, except Mexico, which is August 1, 2016.

September 13th, 2018|Tags: , , , |

Accrual of Unlawful Presence for F, J, and M Students and Exchange Visitors

On August 9, 2018, USCIS implemented a revised policy memorandum entitled “Accrual of Unlawful Presence and F, J, and M Nonimmigrants.”

Under this memo, individuals in F, J, or M status begin to accrue unlawful presence at the earliest of the following dates:

  • The day after they no longer pursue the course of study or authorized activity
  • The day they engage in unauthorized activity
  • The day after completing the course of study or program, including practical training and any authorized grace period
  • The day after the period of authorized stay expires if admitted until a date certain (most students are admitted for D/S “duration of status” or for as long as they are in the program, rather than a date certain)
  • The day an immigration judge orders the F, J, or M nonimmigrant removed, whether or not the decision is appealed

Violations of student status include exceeding authorized days of unemployment during the period of OPT, working more than 20 hours per week at a qualifying on-campus job, or working without authorization, such as after OPT or cap gap work authorization has expired.

Unlawful Presence

This change is significant as the penalties can be severe: a person who overstays by even one day must return to his/her own country to obtain a visa.  A person who accrues more than 180 days of unlawful presence and who departs the United States is barred from re-entering the United States for three years. A person who accrues one year or more of unlawful presence is barred from reentering the United States for ten years. A person who attempts to enter the United States during the bar will be permanently barred from the United States.

Cap Gap

An F-1 student whose OPT EAD expires between April 1 and October 1, and who is selected in the H-1B lottery may continue to work in the United States after the EAD expires until the start of the new visa year on October 1 pursuant to “cap gap” authorization. Cap gap extends OPT EAD authorization until September 30. If the student’s H-1B has not been approved by October 1, the student may not continue to work in the United States based on cap gap. Instead, he or she must stop work and must be removed from the payroll.

It is important that any student whose cap gap has expired and whose H-1B has not yet been adjudicated by USCIS stop work on October 1 as work would be a violation of status and he/she will begin to accrue unlawful presence under the new memorandum referenced above.

September 11th, 2018|Tags: , |