Premium Processing Resumes for Cap-Subject FY 2019 H-1B Petitions

On January 26, 2019, USCIS announced that Premium Processing will resume on January 28, 2019 for all cap-subject FY2019 H-1B petitions;  in other words, for any H-1B lottery application filed last April that is still pending with the agency. But shouldn’t all of those petitions have already been approved? Well, um…. yes. But wasn’t the employment start for all of those petitions October 1, 2018? Another, Yes. In spite of these facts there are several thousand  H-1B cap-subject petitions still un-adjudicated or waiting for a decision months after employers responded to USCIS requests for additional information. Better late than never, as the old adage goes.

The announcement means that employers who have any of those thousands of petitions still at the agency can upgrade them to premium processing and receive a decision or a request for additional information within 15 days. Employers who are currently compiling responses to requests for information can also submit their response with a premium processing upgrade and $1410 to obtain a decision on their petition within 15 days.

The USCIS announcement is only applicable to cap-subject FY2019 H-1B applications. Premium processing remains suspended for the following H-1B categories, at least until February 19, 2019.

  • H1B Extension Petitions that include changes to the original position
  • H1B Petitions where there is a change of employer
  • H1B Petitions that request amendments with changes to the original petition

The continued ban on premium processing, especially for petitions where there is a change of employer is burdensome to both employers and H-1B status holders. With current adjudications taking as long a six months and denial rates higher than ever, it is often too risky for an H-1B nonimmigrant to make an employer switch until the H-1B petition is approved, and for employers waiting six months or more for a new hire to start is untenable.

Premium processing continues to be available for H-1B cap exempt petitions filed by institutions of higher education, government research entities and some qualified non-profit organizations that file petitions at the California Service Center.  It is also still available for H-1B extension petitions where there are no changes or amendments. These are applications that are filed with the Nebraska Service Center.

USCIS states that the agency will update the availability of premium processing for other categories once the workload of the agency permits. It is unclear whether the original deadline for the lifting of the premium processing ban of February 19, 2019 will be honored, or whether the ban will be further extended.

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I-9 Compliance more important than ever during E-Verify Outage

By: Valentine Brown

The government has been shut down for 29 days,  with no signs of reopening anytime soon. Although USCIS has continued to operate due to being self-funded by application filing fees, E-Verify’s funding was discontinued by the shutdown, so the system has been inoperable since December 22, 2018. For many employers, using E-Verify as part of an immigration compliance scheme is voluntary, however for federal contractors and employers in several states, E-Verify is mandatory. In either case, losing the availability of this valuable double check on employee eligibility to work leaves an employer relying on the I-9 process. Below are a few reminders to get employers through the shutdown and to make sure they are ready when the E-Verify system is back up and running:

Make copies of employee documents used for I-9 completion: To be sure, copying an employee’s identity documents is not required for the I-9 process, however it has increasingly become considered as a best practice for employers, especially in our new age of 6000+ ICE I-9 audits per year. (But remember, for E-Verify employers, photo matching  requires employers to make copies of green cards, work permits and U.S. passports when they are presented for verification purposes.) Keeping copies of documents with the I-9 form has several benefits in the shutdown context. At some point the government will reopen and the employee’s information will have to be inputted to the E-Verify system. Having copies of the employee’s documents will serve to ensure that the employer has the correct employee information, for submission and as a double check on the information entered on the I-9 form. Having copies will reduce the likelihood that the employer will have to go back to the employee for additional information once E-Verify is back up and running. Reducing the number of employee contacts during the I-9/E-Verify process reduces the opportunities for unwitting I-9 discrimination to occur, including document abuse and citizenship status discrimination.

Conduct careful review of all  documents presented for I-9 purposes: Without the E-Verify check available, employers will be relying on their own judgment as to the validity and veracity of immigration-related documents presented during the shutdown. While it is not necessary for employers to be a fake document expert, it is required that they review the presented documents to make sure they appear valid and relate to the person who is presenting them. Immigration documents, such as work permits and green cards have changed over the years, so determining what is a valid document is not always as easy as it seems it should be. In the M-274  Handbook for Employers, there are many samples of what the various immigration documents look like as well as descriptions of their security features. Employers should use information in the handbook to compare to documents presented if they have questions.

Store shutdown period I-9s together: Best practice is to store I-9s separately from employee files in order to ensure that information on the I-9 forms remains private and is not inadvertently, or purposely used to make employment decisions. I recommend three I-9 files: (1) active employees with no reverification required (2) active employees with reverification required (3) terminated employees stored in order by termination date. I would add another temporary category of I-9s prepared during the shutdown. This will allow employers to easily identify those I-9s that will have to be entered into E-Verify once it is back up and running. After the shutdown is over, the I-9s can be folded back into the three standing files as described above.

With no signs of stopping, the shutdown maybe with us for a while. Taking extra care now with your I-9 forms will ease the burden of catching up on E-Verify entries, once the system is back up and running.

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E-Verify Total Shutdown

E-Verify Funding was not renewed due to the government shutdown on 12/22/18. As a result, all E-verify functions and requirements are temporarily suspended.  USCIS provides more information below:

E-Verify Accounts Inaccessible

While E-Verify is unavailable, employers will not be able to access their E-Verify accounts to:

  • Enroll in E-Verify;
  • Create an E-Verify case;
  • View or take action on any case;
  • Add, delete or edit any user account;
  • Reset passwords;
  • Edit company information;
  • Terminate accounts; and
  • Run reports.

Also, employees will be unable to resolve E-Verify Tentative Nonconfirmations (TNCs).

E-Verify Policies Implemented to Minimize Impact

We understand that E-Verify’s unavailability may have a significant impact on employer operations. To minimize the burden on both employers and employees, the following policies have been implemented:

  • The “three-day rule” for creating E-Verify cases is suspended for cases affected by the unavailability of E-Verify.
  • The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs.
  • We will provide additional guidance regarding “three-day rule” and time period to resolve TNCs deadlines once operations resume.
  • Employers may not take adverse action against an employee because the E-Verify case is in an interim case status, including while the employee’s case is in an extended interim case status due to the unavailability of E-Verify.
  • Federal contractors with the Federal Acquisition Regulation (FAR) E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

Available E-Verify Resources

For your convenience, several free E-Verify resources are still available:

Form I-9 Requirements

The lapse in government appropriations does not affect Form I-9, Employment Eligibility Verification requirements. Employers must still complete Form I-9 no later than the third business day after an employee starts work for pay, and comply with all other Form I-9 requirements outlined in the Handbook for Employers (M-274) and on I-9 Central.

myE-Verify Accounts Inaccessible

myE-Verify is unavailable and employees will not be able to access their myE-Verify accounts to use:

  • Self Check
  • Self Lock
  • Case History
  • Case Tracker

However, employees may visit the Resource Center and Employee Rights Toolkit for information on their rights and roles in the Form I-9 and E-Verify processes.

Webinars are Cancelled

The following webinars are cancelled:

  • Form I-9
  • E-Verify Overview
  • E-Verify in 30
  • E-Verify for Web Services Users
  • Federal Contractor E-Verify
  • E-Verify for Existing Users
  • myE-Verify, and Employee Rights

However, employers and employees may view our Form I-9 On-Demand Webinar.

Telephone and Email Support Unavailable

Form I-9, E-Verify and myE-Verify support representatives are not available to respond to inquiries.

We apologize for any inconvenience and look forward to serving you once we resume operations.

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USCIS Petition Operations Not Impacted by Government Shutdown

12/22/18

Update from USCIS:

The current lapse in annual appropriated funding for the U.S. government does not affect USCIS’s fee-funded activities. Our offices will remain open, and all individuals should attend interviews and appointments as scheduled. USCIS will continue to accept petitions and applications for benefit requests, except as noted below.

Some USCIS programs, however, will either expire or suspend operations, or be otherwise affected, until they receive appropriated funds or are reauthorized by Congress. These include:

  • EB-5 Immigrant Investor Regional Center Program (not the EB-5 Program). Regional centers are a public or private economic unit in the U.S. that promotes economic growth. USCIS designates regional centers for participation in the Immigrant Investor Program. The EB-5 Program will continue to operate.
  • E-Verify. This free internet-based system allows businesses to determine the eligibility of their employees to work in the U.S.
  • Conrad 30 Waiver Program for J-1 medical doctors. This program allows J-1 doctors to apply for a waiver of the two-year residence requirement after completing the J-1 exchange visitor program. The expiration only affects the date by which the J-1 doctor must have entered the U.S.; it is not a shutdown of the Conrad 30 program entirely.
  • Non-minister religious workers. This special immigrant category allows non-ministers in religious vocations and occupations to immigrate or adjust to perm
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USCIS Proposes Changes to H-1B Lottery

11/30/2018

From USCIS:

WASHINGTON—The Department of Homeland Security (DHS) announced today a notice of proposed rulemaking that would require petitioners seeking to file H-1B cap-subject petitions to first electronically register with U.S. Citizenship and Immigration Services (USCIS) during a designated registration period. Under the proposed rule, USCIS would also reverse the order by which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption, likely increasing the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected for an H-1B cap number, and introducing a more meritorious selection of beneficiaries.

The H-1B program allows companies in the United States to temporarily employ foreign workers in specialty occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelors or higher degree in the specific specialty, or its equivalent. When USCIS receives more than enough petitions to reach the congressionally mandated H-1B cap, a computer-generated random selection process, or lottery, is used to select the petitions that are counted towards the number of petitions projected as needed to reach the cap.

The proposed rule includes a provision that would enable USCIS to temporarily suspend the registration process during any fiscal year in which USCIS may experience technical challenges with the H-1B registration process and/or the new electronic system. The proposed temporary suspension provision would also allow USCIS to up-front delay the implementation of the H-1B registration process past the fiscal year (FY) 2020 cap season, if necessary to complete all requisite user testing and vetting of the new H-1B registration system and process. While USCIS has been actively working to develop and test the electronic registration system, if the rule is finalized as proposed, but there is insufficient time to implement the registration system for the FY 2020 cap selection process, USCIS would likely suspend the registration requirement for the FY 2020 cap season.

Currently, in years when the H-1B cap and the advanced degree exemption are both reached within the first five days that H-1B cap petitions may be filed, the advanced degree exemption is selected prior to the H-1B cap. The proposed rule would reverse the selection order and count all registrations or petitions towards the number projected as needed to reach the H-1B cap first. Once a sufficient number of registrations or petitions have been selected for the H-1B cap, USCIS would then select registrations or petitions towards the advanced degree exemption. This proposed change would increase the chances that beneficiaries with a master’s or higher degree from a U.S. institution of higher education would be selected under the H-1B cap and that H-1B visas would be awarded to the most-skilled and highest-paid beneficiaries. Importantly, the proposed process would result in an estimated increase of up to 16 percent (or 5,340 workers) in the number of selected H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

USCIS expects that shifting to electronic registration would reduce overall costs for petitioners and create a more efficient and cost-effective H-1B cap petition process for USCIS. The proposed rule would help alleviate massive administrative burdens on USCIS since the agency would no longer need to physically receive and handle hundreds of thousands of H-1B petitions and supporting documentation before conducting the cap selection process. This would help reduce wait times for cap selection notifications. The proposed rule also limits the filing of H-1B cap-subject petitions to the beneficiary named on the original selected registration, which would protect the integrity of this registration system.

On April 18, 2017, President Trump issued the Buy American and Hire American Executive Order, instructing DHS to “propose new rules and issue new guidance, to supersede or revise previous rules and guidance if appropriate, to protect the interests of U.S. workers in the administration of our immigration system.” The EO specifically mentioned the H-1B program and directed DHS and other agencies to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

Additional information on the proposed rule is available in the Federal Register. Public comments may be submitted starting Monday, December 3, when the proposed rule publishes in the Federal Register, and must be received on or before January 2, 2019.

For more information on USCIS and our programs, please visit uscis.gov or follow us on Twitter (@uscis), Instagram (/uscis), YouTube (/uscis), and Facebook(/uscis).

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DHS Finalizes Minor Regulatory Improvements for E, H, L and O Visa Holders

On November 18, 2016, the U.S. Department of Homeland Security (DHS) issued the final rule, Retention of EB-1, EB-2, and EB-3 Immigrant Workers and Program Improvements Affecting High-Skilled Nonimmigrant Workers, to take effect on January 17, 2017. The final rule establishes additional security and flexibility for high-skilled immigrants in the United States while working to ease some of the current programmatic challenges. This Alert highlights key components of the final rule.

Grace Periods

The final rule establishes a one-time 60-day grace period (or the duration of the existing work authorization, whichever is shorter) for non-immigrant workers when their underlying employment ends. DHS has authorized this grace period for workers in E-1, E-2, E-3, H-1B, H-1B1, L-1, O-1 and TN status. The grace period does not allow for employment authorization; however, this provides a proscribed duration of time in which the non-immigrant may either wrap up affairs in the United States or seek other employment and employment sponsorship.

In addition, the final rule extends the 10-day grace period to E-1, E-2, E-3, L-1 and TN nonimmigrants (and their dependents), which is presently available to H-1B workers. Workers would have 10 days before the petition validity period (or other authorized validity period) and 10 days after the end of the validity period in which they may apply for and be granted an extension of stay or change of status. They may also start employment under H-1B portability provisions.

H-1B Extension Beyond the Sixth Year

The final rule confirms that a foreign worker may rely on a current I-140 approval and qualifying I-140 petition to extend his or her stay in H-1B status beyond the sixth year consistent with the regulations under the American Competitiveness Act of the 21st Century. The final rule clarifies that the foreign worker must apply for adjustment of status within one year of priority date eligibility to remain eligible for the extension of H-1B status.

Clarification of H-1B Portability

Provided that the foreign worker remains eligible for H-1B status and that each petition meets the individual requirements to qualify for H-1B status, a foreign worker may have successive change of employer petitions filed on his or her behalf.

Expansion of H-1B Cap Exemption

Under the new rule, H-1B petitions filed by a nonprofit entity affiliated with an institution of higher education will be considered cap exempt on the basis of a written affiliation agreement with an institution of higher education, provided the agreement establishes an active working relationship between the nonprofit entity and the institution for purposes of research or education and that one of the nonprofit entities may directly contribute to the education or research mission of the institution.

Eligibility for Employment Authorization in Compelling Circumstances

Non-immigrant workers (E-3, H-1B, H-1B1, L-1 and O-1) with approved Form I-140 petitions who cannot obtain an immigrant visa due to priority date retrogression will be allowed under the final rule to apply for separate employment authorization for a limited period if there are compelling circumstances that, in the discretion of DHS, justify the issuance of employment authorization. The final rule does not define compelling circumstances, but gives such examples as a serious illness or disability, an employer dispute or retaliation, substantial harm to the applicant and family or a significant disruption to the employer.

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Trump Names Gen. Kelly To Head DHS

President-elect Donald J. Trump on Monday officially nominated Gen. John Kelly to serve as secretary of the U.S. Department of Homeland Security, saying his decades of military service and deep commitment to fighting the terrorism threat inside the nation’s borders make him ideal. He is the third general chosen for the Trump administration, following the selection of Lt. Gen. Michael Flynn as national security adviser and former Marine Corps Gen. James Mattis as defense secretary.

Trump said in a statement that Kelly is the right person to spearhead the “urgent mission” of stopping illegal immigration and securing the nation’s borders, streamlining the Transportation Security Administration and improving coordination between the country’s intelligence and law enforcement agencies.

“With Gen. Kelly at the helm of DHS, the American people will have a leader committed to our safety as well as one who will work hand-in-hand with America’s rank-and-file TSA, [Immigration and Customs Enforcement] and Border Patrol officers,” Trump said.

 

Kelly previously led the U.S. Southern Command, which handles U.S. military activity in the Caribbean and Latin America, and has raised alarms about border security. In testimony to the Senate Armed Services Committee in 2015, Kelly said he was worried that smuggling networks are “a vulnerability that terrorists could seek to exploit.”

As the head of DHS, Kelly would oversee three major agencies impacting immigration: U.S. Citizenship and Immigration Services, U.S. Customs and Border Patrol and U.S. Immigration and Customs Enforcement. There’s no word yet on who will lead those agencies, and it’s unclear whether Kansas Secretary of State Kris Kobach — an immigration hardliner who appeared to be in the running for the DHS top post — is being considered for other positions.

 

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