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USCIS announced the start of the fiscal year (FY) 2020 H-1B cap season, start dates for Premium Processing of cap-subject H-1B petitions, and the launch of its new H-1B Data Hub

Washington, D.C., March 19, 2019 U.S. Citizenship and Immigration Services (USCIS) today announced the start of the fiscal year (FY) 2020 H-1B cap season, start dates for premium processing of cap-subject H-1B petitions, and the launch of its new H-1B data hub, while reminding petitioners of its new H-1B cap selection process.

Start of FY 2020 Cap Season

USCIS will begin accepting H-1B petitions subject to the FY 2020 cap on April 1, 2019 and through April 5, 2019, and will reject any FY 2020 cap-subject H-1B petitions filed before April 1. H-1B petitioners must follow all statutory and regulatory requirements as they prepare petitions to avoid delays in processing and possible requests for evidence. Form M-735, Optional Checklist for Form I-129 H-1B Filings (PDF, 262 KB), provides detailed information on how to complete and submit an FY 2020 H-1B petition.

Premium Processing for FY 2020 Cap-Subject Petitions

Premium processing will be offered in a two-phased approach during the FY 2020 cap season so USCIS can best manage the premium processing requests without fully suspending it as in previous years. The first phase will include FY 2020 cap-subject H-1B petitions requesting a change of status and the second phase will include all other FY 2020 cap-subject petitions.

Starting April 1, FY 2020 cap-subject H-1B petitioners requesting a change of status on their Form I-129, Petition for a Nonimmigrant Worker, may request premium processing by concurrently filing Form I-907, Request for Premium Processing Service. However, to prioritize data entry for cap-subject H-1B petitions, USCIS will not begin premium processing for these petitions immediately. USCIS will begin premium processing for these petitions no later than May 20, 2019, and will notify the public before premium processing begins for these petitions.

If a petitioner does not file Form I-907 concurrently with an FY 2020 H-1B cap-subject petition requesting a change of status, the petitioner must wait until premium processing begins to submit Form I-907. Until premium processing begins for these petitions, USCIS will reject any Form I-907 that is not filed concurrently with a cap-subject Form I-129. Petitioners must appropriately select response “b” for Item 4 in Part 2 of Form I-129 to be eligible to concurrently file Form I-907.

Premium processing for all other FY 2020 cap-subject H-1B petitions will not begin until at least June 2019. Cap-subject petitioners not requesting a change of status may not submit their premium processing request concurrently with their H-1B petition. These petitioners will be eligible to upgrade to premium processing by filing Form I-907 once premium processing begins for this group. USCIS will notify the public with a confirmed date for premium processing for cap-subject petitioners not requesting a change of status.

At this time, premium processing for H-1B petitions that are exempt from the cap, such as extension of stay requests, remains available.

New H-1B Data Hub

USCIS is also announcing the new H-1B Employer Data Hub that will be available on uscis.gov on April 1. The data hub is part of USCIS’ continued effort to increase the transparency of the H-1B program by allowing the public to search for H-1B petitioners by fiscal year, NAICS industry code, company name, city, state, or zip code. This will give the public the ability to calculate approval and denial rates and to review which employers are using the H-1B program.

New H-1B Cap Selection Process

In January, the Department of Homeland Security announced a final rule amending regulations governing cap-subject H-1B petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, which will be in effect for the FY 2020 cap season. This simple change increases the chances that more of these visas will be granted to those with an advanced degree from a U.S. institution of higher education.

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require the application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. Congress has set a cap of 65,000 H-1B visas per fiscal year. An advanced degree exemption from the H-1B cap is available for 20,000 beneficiaries who have earned a U.S. master’s degree or higher from a U.S.

institution of higher education. The agency will monitor the number of petitions received and notify the public when the H-1B numerical allocations have been met.

For more information on the H-1B cap, and to subscribe to H-1B cap season email updates, visit the H-1B FY 2020 Cap Season page. For current Form I-129 processing times, visit the Check Case Processing Times page

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If you or your employer want to learn more about H-1B visa program or work visa and immigration programs do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

USCIS published the final rule on Cap-subjet H-1B visa program which changes how the petitions are selected in lottery and requires a pre-registration

January 31, 2019. Washington, DC. Today the Department of Homeland Security (DHS) posted the Final Rule. The final rule will amend the regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption. The final rule reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and it introduces an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions.

Earlier in January Adhikari Law PLLC, an immigration law firm in Greater Washington DC region serving all fifty States, had supported the USCIS’ proposed rule on H-1B visa program. The firm’s Managing Attorney, Niranjan Adhikari, wrote to the Chief of Regulatory Coordination Division, Office of Policy and Strategy at USCIS, Ms. Samantha Deshommes, giving his support to the proposed rule and provided some suggestions. Mr. Adhikari maintained that the current lottery system is not scientific and requires a reform, and argued that the proposed rule including the change in lottery process and the pre-registration process should be implemented soon.

USCIS issued a news release on Jan 30, 2019 stating that the rule will be published in the Federal Register on Jan. 31, and will go into effect on April 1, though the electronic registration requirement will be suspended for the fiscal year (FY) 2020 cap season. 

USCIS has said the U.S. employers seeking to employ foreign workers with a U.S. master’s or higher degree will have a greater chance of selection in the H-1B lottery in years of excess demand for new H-1B visas.

Effective April 1, 2019 USCIS will first select H-1B petitions (or registrations, once the registration requirement is implemented) submitted on behalf of all beneficiaries, including those that may be eligible for the advanced degree exemption. USCIS will then select from the remaining eligible petitions, a number projected to reach the advanced degree exemption. 

Changing the order in which USCIS counts these allocations will likely increase the number of petitions for beneficiaries with a master’s or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations. Specifically, the change will result in an estimated increase of up to 16% (or 5,340 workers) in the number of selected petitions for H-1B beneficiaries with a master’s degree or higher from a U.S. institution of higher education.

USCIS will begin accepting H-1B cap petitions for FY 2020 on April 1, 2019. The reverse selection order will apply to petitions filed for the FY 2020 H-1B cap season. Petitioners may file an H-1B petition no more than six months before the employment start date requested for the beneficiary. USCIS will provide H-1B cap filing instruction on uscis.gov in advance of the filing season.

After considering public feedback, USCIS will be suspending the electronic registration requirement for the FY 2020 cap season to complete user testing and ensure the system and process are fully functional.

Additionally, USCIS will publish a notice in the Federal Register to announce the initial implementation of the H-1B registration process in advance of the cap season in which it will implement the requirement. Prior to implementation, USCIS will conduct outreach to ensure petitioners understand how to access and use the system. Once implemented, USCIS will announce the designated electronic registration period at least 30 days in advance for each fiscal year it is required.

(Last updated Feb 11, 2019.)


If you or your employer want to learn more about H-1B visa program or work visa and immigration programs do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

Plan early to timely file a strong H-1B petition on April 1 to 5, 2019 to meet FY 2020 H-1B numerical cap

USCIS will accept H-1B petitions on April 1, 2019 for the Fiscal Year (FY) 2020 H-1B  quota cases. If the petition is approved the H-1B beneficiary can start working on October 1, 2019 or earlier if he/she is eligible for H-1B cap-gap. It is very important to start the H-1B sponsorship process well in advance to make sure all the petitions are timely prepared and filed.

It is important that a complete and strong petition is prepared in light of increased RFEs and denial rates by USCIS for poorly prepared petitions. You need attorneys who are experienced, thorough, pay close attention to detail, have deep knowledge about industries, know about the persuasive evidence which USCIS often agrees, stay up to date on recent trends, and have great success rates.

On Jan 31, 2019 USCIS published the final rule on Cap-subjet H-1B visa program which changes how the petitions are selected in lottery and requires a pre-registration. The final rule reverses the order by which USCIS selects H-1B petitions under the H-1B regular cap and the advanced degree exemption, and it introduces an electronic pre-registration requirement for petitioners seeking to file H-1B cap-subject petitions BUT electronic pre-registration will be suspended for 2019 (FY 2020) quota cases.

FY 2020 H-1B Cap and Cap Amounts

Last year, USCIS received a sufficient number of H-1B petitions to reach the statutory cap for FY 2019 in first week of April, 2018. After the numerical cap is reached, USCIS will reject petitions subject to the H-1B. The current annual cap on the H-1B category is 65,000, and out this up to 6,800 visas are set aside each fiscal year for the H-1B1 program under the U.S.-Chile and U.S.-Singapore Free Trade Agreements. Unused numbers in this pool are made available for H-1B specialty occupation workers for the next fiscal year.

There is a high likelihood that the FY 2020 H-1B quota might be reached much earlier than last year. It should be noted that in the past the numerical quota was reached in a short period of time, sometimes within a week.Therefore, it is better to plan everything in advance so that all H-1B petition will be filed in a timely manner. Most importantly, USCIS will continue to accept H-1B petitions that are not subject to annual numerical limitations, (e.g. H-1B amended petitions, H-1B extensions for individuals who have already been counted against the cap within the last six years, etc.), DOD petitions and Chile/Singapore H-1B1 petitions requesting an employment start date in FY 2020.

Please note the following tips to ensure that a strong petition is filed timely:
  • Get all supporting documents ready (letters of support, necessary filing fees, right type of end-client letter, right Work/Purchase/Task Order, etc.).
  • Before filing the H-B petition the employer has to receive a certified Labor Condition Application (LCA) from the Department of Labor (DOL). It typically takes about seven business days for the DOL to certify an LCA, so the LCA should also be filed as soon as possible.
  • Evidence of Beneficiary’s Educational Qualifications: A copy of beneficiary’s final transcripts. Petition has to include evidence of the beneficiary’s educational degree at the time of filing.  If all of the requirements for the degree have been met, but the degree has not yet been awarded, the following alternate evidence may be submitted:
    • A copy of the beneficiary’s transcript and a letter from the Registrar confirming that all of the degree requirements have been met (if the educational institution does not have a Registrar, such letter must be signed by the person in charge of the educational records where the degree will be awarded).
  •  If you are indicating that the beneficiary is qualified based on a combination of education and experience, we would have to include substantiating evidence to show that.
  • ​If the beneficiary has a foreign academic degree and professional experience letters then we may need to obtain a credential evaluation, a process that can also take a few days.
  • Adequate documentation to show that the position is a specialty occupation work. A mere re-writing legal provision will not suffice, a detail explanation with relevant evidence should be provided in the petition.
  • Adequate documentation to show that there is a specific and non-speculative qualifying assignments in a specialty occupation for the beneficiary for the time requested in the petition. (See our detail article about USCIS memo about third-party placement, at https://adhikarilaw.com/uscis-policy-memo-provides-guidance-contracts-itinerary-requirements-h-1b-petitions/

Can I file H-1B petition if it was denied or currently in RFE or Motions/Appeal Stage?

Certainly yes. However, we would advise employer and the beneficiary to be extra careful about the same mistakes or oversights and do not repeat those in the petition this year. It is advisable to seek second legal opinion from other outside counsel if the employer wants to ensure a cross-check and an additional quality control. Often time a minor oversight about various aspects of the petition, be it job title, occupational code, job duties, educational requirements, requirements of end-client, status violation, could trigger RFE and subsequently a denial if the RFE is not responded
adequately.

Do consider to reach our law office if you like us to do the petition or for a second-opinion or for a review of the prepared LCA and the petition drafted by your other outside counsel or by your in-house legal team. A timely remedial action could potentially avoid the RFE or a potential denial.

(last updated January 31, 2019)


If you or your employer want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

What Happens when the Government Shuts Down

A partial government shutdown is currently in effect. Approximately 25 percent of government functions are shut down. Immigration-related agencies that are impacted by the shutdown include the Department of Homeland Security and its immigration-related components (CBP, ICE, USCIS, CIS Ombudsman), the Department of Justice (EOIR), and the Department of State.


General Shutdown Information Based on Previous Shutdowns

General Shutdown Information: Generally, if the government closes for budgetary reasons, all but “essential” personnel are furloughed and are not allowed to work. The following is an overview of how the immigration-related agencies have operated during prior shutdown periods. This assumes that:

USCIS: USCIS is a fee-funded agency so if the government shuts down, it is generally business as usual. The exception to this is those programs that receive appropriated funds – E-Verify, the EB-5 Immigrant Investor Regional Center Program, Conrad 30 J-1 doctors, and non-minister religious workers, which are suspended or otherwise impacted.

DOS: Visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and “life or death” emergencies.

CBP: Inspection and law enforcement personnel are considered “essential.” Ports of entry will be open; however, processing of applications filed at the border may be impacted.

ICE: ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.

EOIR: Immigration court cases on the detained docket will proceed during a lapse in congressional appropriations while non-detained docket cases will be reset for a later date when funding resumes. Courts with detained dockets will receive all filings but will only process those involving detained dockets. Courts with only non-detained dockets will not be open and will not accept filings. Members may want to check with their local chapters for court-specific instructions.

DOL: The OFLC would cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. OFLC’s web-based systems, iCERT and PERM, would be inaccessible, and BALCA dockets will be placed on hold.

CIS Ombudsman: The DHS Office of the CIS Ombudsman would close and would not accept any inquiries through its online case intake system.

For more information about how government shutdowns have affected agency operations in the past, see AILA’s archive of updates and related resources from the government shutdowns in 2011 and 2013 (AILA Doc. No. 11040730).


If you or your employer want to learn more about this and other immigration law topics or will have potential concern due to government shutdown, do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice.

DHS proposes pre-registration requirement and Merit-Based Rule for cap-subject H-1B Visa Program

Washington, DC. Department of Homeland Security (DHS) is going to propose a merit-based rule to benefit graduates (master’s and PhDs) of U.S. institutions of higher education and a mandatory online pre-registration requirement for cap-subject H-1B programs. In month of November, USCIS Director had said they were proposing this new rule.

On December 3rd, USCIS published a notice of proposed rule making. The proposed rule 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 reverse the order by which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption, it would 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 change will increase 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 the rule will also introduce a more meritorious selection of beneficiaries.

Foreign students with Master’s or PhD degree from U.S. public or private (not-for-profit) colleges and universities will benefit in lottery process

For the last several years, H-1B cap and the advanced degree exemption quotas are both reached within the first five business 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. USCIS claims that 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. It states that 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 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.

How the pre-registration will be conducted?

DHS proposes to establish a registration period that would begin at least fourteen calendar days before the first day of filing in each fiscal year. The registration period would last for a minimum period of fourteen calendar days. USCIS states that it would give the public at least 30 days advance notice of the opening of the initial registration period for the upcoming fiscal year via
the USCIS website. USCIS will also separately announce the final registration date in any fiscal year on the USCIS website. If USCIS determines that it is necessary to re-open the registration period, it would announce the start of the re-opened registration period on its website before the start of the re-opened registration period. With respect to the initial registration period, DHS states that it is also considering announcing the opening date of the first registration period in the final rule resulting from this proposed rule to allow for maximum visibility for the regulated public.

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. USCIS states it 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, it would likely suspend the registration requirement for the FY 2020 cap season.

About H-1B Program

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.

(last updated December 4, 2018)


If you or your employer want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

USCIS Clarifies the STEM OPT Extension Reporting Responsibilities and Training Obligations allowing off-site placement so long as long as all of the training obligations are met

Adhikari Law PLLC, Washington, DC, August 17, 2018. USCIS has said it is going to update the Optional Practical Training Extension for STEM Students (STEM OPT) page of their website to clarify the reporting responsibilities for participating in the STEM OPT program. STEM OPT participants may engage in a training experience that takes place at a site other than the employer’s principal place of business as long as all of the training obligations are met, including that the employer has and maintains a bona fide employer-employee relationship with the student. USCIS further maintains that the certain types of arrangements, including multiple employer arrangements, sole proprietorship, employment through ‘‘temp’’ agencies, employment through consulting firm arrangements that provide labor for hire, and other similar relationships may not be able to demonstrate a bona fide employer-employee relationship and, therefore, may not meet the requirements of the STEM OPT extension.

Furthermore, Students and employers must report material changes to the Designated School Official (DSO) at the earliest opportunity by submitting a modified Form I-983. Employers must report the STEM OPT student’s termination of employment or departure to the DSO within five business days. Students must report certain changes, such as changes to their employer’s name and address, to their DSO within 10 business days. Department of Homeland Security (DHS) requires prompt reporting to ensure that  it is able to exercise effective oversight of the program. Additionally, USCIS is clarifying that

Earlier USCIS had taken the position that STEM employment may not assign or contract out students to work for one of their customers or clients, and assign, or otherwise delegate, their training responsibilities to the customer or client. It had maintained that employer who signs the Form I-983 must be the same entity that provides the practical training experience to the student. It had taken the position that the student’s practical training experience must be provided by the employer’s own trained or supervisory personnel at the employer’s own place of business or worksite(s), to which ICE has authority to conduct employer site visits to ensure that the employer is meeting program requirements.

With the changed policy, the  STEM OPT participants may engage in a training experience that takes place at a site other than the employer’s principal place of business as long as all of the training obligations are met, including that the employer has and maintains a bona fide employer-employee relationship with the student.

Any employer who employs a student participating in the STEM OPT extension program must ensure that:

DHS may, at its discretion, conduct a site visit of the employer to ensure that program requirements are being met, including that the employer possesses and maintains the ability, personnel, and resources to provide structured and guided work-based learning experiences consistent with the Training Plan.

The Employer’s Training Obligation

To be eligible to employ a STEM OPT student, an employer must have and maintain a bona fide employer-employee relationship with the student. The employer must attest to this fact by signing the Form I-983, Training Plan for STEM OPT Students. To establish a bona fide relationship, the employer may not be the student’s “employer” in name only, nor may the student work for the employer on a “volunteer” basis. Moreover, the employer that signs the Form I-983 must be the same entity that provides the practical training experience to the student. 

An employer must have sufficient resources and trained or supervisory personnel available to provide appropriate training in connection with the specified training opportunity at the location(s) where the student’s practical training experience will take place, as specified in the Form I-983. The “personnel” who may provide and supervise the training experience may be either employees of the employer, or contractors who the employer has directly retained to provide services to the employer; they may not, however, be employees or contractors of the employer’s clients or customers.  Additionally, under no circumstances would another F-1 student with OPT or a STEM OPT extension (who is undergoing training in their own right) be qualified to train another F-1 student with a STEM OPT extension.

While employers may rely on their existing training programs or policies to satisfy the requirements relating to performance evaluation and oversight and supervision, the student’s Training Plan must nevertheless be customized for the individual student. For instance, every Training Plan must describe the direct relationship between the STEM OPT opportunity and the student’s qualifying STEM degree, as well as the relationship between the STEM OPT opportunity and the student’s goals and objectives for work-based learning. Moreover, a STEM OPT employer may not assign, or otherwise delegate, its training responsibilities to a non-employer third party (e.g., a client/customer of the employer, employees of the client/customer, or contractors of the client/customer). 

DHS, at its discretion, may conduct a site visit of any STEM OPT employer to ensure that the employer possesses and maintains the ability and resources to provide structured and guided work-based learning experiences consistent with the Form I-983. DHS will review on a case-by-case basis whether the student will be a bona fide employee of the employer signing the Training Plan, and verify that the employer that signs the Training Plan is the same entity that employs the student and provides the practical training experience.

How to show a bona fide employer-employee relationship? 

Generally, a bona fide employer-employee relationship means the employee is a direct employee of  the Employer at all times regardless of the client location or the project the employee is assigned. Following are some of the ways one can maintain a valid employer-employee relationship:


If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

House Committee passed FY 2019 DHS Appropriations bill that included elimination of per country caps for all employment-based immigrant visa categories

Washington, D.C. Adhikari Law PLLC sees a silver lining in a much needed reform in skilled immigration programs under Immigration and Nationality Act of 1965. On July 25th the House Appropriations Committee passed the Fiscal Year 2019 Department of Homeland Security (DHS) Appropriations bill that included an amendment from Kansas Congressman Kevin Yoder that proposes to eliminate per country caps for all employment-based immigrant visa categories (EB-1, EB-2, EB-4, EB-4 and EB-5). 
According to sources, the chances of the Homeland Security funding bill, which includes the Yoder amendment, of passing before the new fiscal year is very low.
 
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Adhikari Law PLLC is closely following this bill and other bill in Congress, and will update readers as these pass through both chambers of the Congress.  If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com
Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

USCIS Issues Revised Final Guidance on Unlawful Presence for Students and Exchange Visitors

Washington, D.C. U.S. Citizenship and Immigration Services (USCIS) has published a revised final Policy Memorandum related to unlawful presence after considering feedback received during a 30-day public comment period that ended June 11, 2018. F, J, or M nonimmigrants who failed to maintain their nonimmigrant status before August 9, 2018 start accruing unlawful presence based on that failure on August 9, 2018, unless the non-national (“alien”) had already started accruing unlawful presence.

An F, J, or M nonimmigrant begins accruing unlawful presence, due to a failure to maintain his or her status on or after August 9, 2018, on the earliest of any of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity;
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period, as outlined in 8 CFR 214.2);
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain; or
  • The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

Please do note, F-1 students are eligible for Practical Training (OPT/CPT/STEM OPT) under F-1 visa status if the eligibility criteria for practical training is met. F, J, M students also have 60 days and 30 days grace period, respectively, after completion of study program or after the completion of Practical Training in case of F-1.

Under the revised final policy memorandum, effective Aug. 9, 2018, F and M nonimmigrants who fall out of status and timely file for reinstatement of that status will have their accrual of unlawful presence suspended while their application is pending.

On May 10, 2018, USCIS had posted a policy memorandum changing the way the agency calculates unlawful presence for those who were in student (F nonimmigrant), exchange visitor (J nonimmigrant), or vocational student (M nonimmigrant) status. The revised final memorandum published today supersedes that memorandum and describes the rules for counting unlawful presence for F and M nonimmigrants with timely-filed or approved reinstatement applications, as well as for J nonimmigrants who were reinstated by the Department of State.

Foreign students who are no longer properly enrolled in school are violating the terms of their student visa would incur unlawful presence ground of inadmissibility. For purposes of counting unlawful presence, a timely reinstatement application for F or M status is one where the student has not been out of status for more than five months at the time of filing. Under the revised final policy memorandum, the accrual of unlawful presence is suspended when the F or M nonimmigrant files a reinstatement application within the five month window and while the application is pending with USCIS.

If the reinstatement application is denied, the accrual of unlawful presence resumes on the day after the denial. It is incumbent on the nonimmigrant to voluntarily leave the United States to avoid accruing more unlawful presence that could result in later inadmissibility under section 212(a)(9) of the Immigration and Nationality Act. Whether or not the application for reinstatement is timely-filed, an F, J, or M nonimmigrant whose application for reinstatement is ultimately approved will generally not accrue unlawful presence while out of status.

The Department of State administers the J-1 exchange visitor program, to include reinstatement requests. If the Department of State approves the reinstatement application of a J nonimmigrant, the individual will generally not accrue unlawful presence from the time the J nonimmigrant fell out of status from the time he or she was reinstated.

An F-2, J-2, or M-2 nonimmigrant’s period of stay authorized ends when the F-1, J-1, or M-1 nonimmigrant’s period of stay authorized ends. In addition, an F-2, J-2, or M-2 nonimmigrant’s period of stay authorized may end due to the F-2, J2, or M-2 nonimmigrant dependent’s own conduct or circumstances.

 

In addition, the revised final policy memorandum references to the Board of Immigration Appeals (BIA) issuing orders of removal in the first instance.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com

News flash: USCIS updates Policy Memorandum which provides guidance to USCIS adjudicators regarding their discretion to deny an application, petition without first issuing a RFE or NOID

Washington, D.C. U.S. Citizenship and Immigration Services (USCIS) today posted a policy memorandum (PM) that provides guidance to USCIS adjudicators regarding their discretion to deny an application, petition, or request without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when required initial evidence was not submitted or the evidence of record fails to establish eligibility.

This updated guidance will be effective from September 11, 2018 and applies to all applications, petitions, and requests, except for Deferred Action for Childhood Arrivals (DACA) adjudications, received after that date.

In its release, USCIS claims “for too long, our immigration system has been bogged down with frivolous or merit-less claims that slow down processing for everyone, including legitimate petitioners. Through this long overdue policy change, USCIS is restoring full discretion to our immigration officers to deny incomplete and ineligible applications and petitions submitted for immigration benefits,”. The release further notes, “Doing so will discourage frivolous filings and skeletal applications used to game the system, ensure our resources are not wasted, and ultimately improve our agency’s ability to efficiently and fairly adjudicate requests for immigration benefits in full accordance with our laws.”  The policy implemented in this guidance restores to the adjudicator full discretion to deny applications, petitions, and requests without first issuing an RFE or a NOID, when appropriate.

The 2013 PM addressed policies for the issuance of RFEs and NOIDs when the evidence submitted at the time of filing did not establish eligibility. In practice, the 2013 PM limited denials without RFEs or NOIDs to statutory denials by providing that RFEs should be issued unless there was “no possibility” of approval. This “no possibility” policy limited the application of an adjudicator’s discretion.

USCIS will continue issuing statutory denials when appropriate without first issuing an RFE or NOID when the applicant, petitioner, or requestor has no legal basis for the benefit/request sought, or submits a request for a benefit or relief under a program that has been terminated.
If all required initial evidence is not submitted with the benefit request, USCIS, in its discretion, may deny the benefit request for failure to establish eligibility based on lack of required initial evidence. Examples of filings that may be denied without sending an RFE or NOID include, but are not limited to:

This PM updates the USCIS Adjudicator’s Field Manual and contains an “additional considerations” section. The policy in this “additional considerations” section is not new, and is nearly identical to the policy contained in the superseded 2013 PM.


Note: This is a blog post by Adhikari Law PLLC and should NOT be construed as a legal advice. 

If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 459 2105, or email us at info@adhikarilaw.com