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DHS published the Final Rule related to the public charge ground of inadmissibility citing Section 212(a)(4) of the Immigration and Nationality Act

Washington, DC. On August 14, 2019, the U.S. Department of Homeland Security (DHS) published the Inadmissibility on Public Charge Grounds final rule that codifies regulations governing the application of the public charge inadmissibility ground under INA section 212(a)(4). On Oct. 10, 2018, DHS issued a Notice of Proposed Rulemaking (NPRM), which published in the Federal Register for a 60-day comment period. DHS received and considered over 266,000 public comments before issuing this final rule. The final rule provides summaries and responses to all significant public comments.

The final rule enables the federal government to better carry out provisions of U.S. immigration law related to the public charge ground of inadmissibility. The final rule clarifies the factors considered when determining whether someone is likely at any time in the future to become a public charge, is inadmissible under section 212(a)(4) of the INA, and therefore, ineligible for admission or adjustment of status.

The rule applies to applicants for admission, aliens seeking to adjust their status to that of lawful permanent residents from within the United States, and aliens within the United States who hold a nonimmigrant visa and seek to extend their stay in the same nonimmigrant classification or to change their status to a different nonimmigrant classification.

The final rule does not create any penalty or disincentive for past, current, or future receipt of public benefits by U.S. citizens or aliens whom Congress has exempted from the public charge ground of inadmissibility. The final rule does not apply to U.S. citizens, even if the U.S. citizen is related to a noncitizen who is subject to the public charge ground of inadmissibility. The rule also does not apply to aliens whom Congress exempted from the public charge ground of inadmissibility, such as refugees, asylees, Afghans and Iraqis with special immigrant visas, and certain  nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, special immigrant juveniles, or to those who DHS has granted a waiver of public charge inadmissibility.

In addition, this rule also clarifies that DHS will not consider the receipt of designated public benefits received by an alien who, at the time of receipt, or at the time of filing the application for admission, adjustment of status, extension of stay, or change of status, is enlisted in the U.S. armed forces, or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces, and will not consider the receipt of public benefits by the spouse and children of such service members. The rule further provides that DHS will not consider public benefits received by children, including adopted children, who will acquire U.S. citizenship under INA section 320, 8 U.S.C. 1431.

Similarly, DHS will not consider the Medicaid benefits received: (1) for the treatment of an “emergency medical condition,” (2) as services or benefits provided in connection with the Individuals with Disabilities Education Act, (3) as school-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under State or local law, (4) by aliens under the age of 21, and (5) by pregnant women and by women within the 60-day period beginning on the last day of the pregnancy.

DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person. DHS will also not attribute receipt of a public benefit by one or more members of the applicant’s household to the applicant unless the applicant is also a listed beneficiary of the public benefit.

Question (Q). Which benefits are included in public charge inadmissibility determinations? 

A. DHS will only consider public benefits as listed in the rule:

  • Any federal, state, local, or tribal cash assistance for income maintenance
  • Supplemental Security Income (SSI)
  • Temporary Assistance for Needy Families (TANF)
  • Federal, state or local cash benefit programs for income maintenance (often called “General Assistance” in the state context, but which may exist under other names)
  • Supplemental Nutrition Assistance Program (SNAP, or formerly called “Food Stamps”)
  • Section 8 Housing Assistance under the Housing Choice Voucher Program
  • Section 8 Project-Based Rental Assistance (including Moderate Rehabilitation)
  • Public Housing under section 9 the Housing Act of 1937, 42 U.S.C. 1437 et seq.
  • Federally funded Medicaid (with certain exclusions)

This rule also clarifies that DHS will not consider the receipt of designated public benefits received by an alien who, at the time of receipt, or at the time of filing the application for admission, adjustment of status, extension of stay, or change of status, is enlisted in the U.S. armed forces, or is serving in active duty or in any of the Ready Reserve components of the U.S. armed forces, and will not consider the receipt of public benefits by the spouse and children of such service members. The rule further provides that DHS will not consider public benefits received by children, including adopted children, who will acquire U.S. citizenship under INA 320, 8 U.S.C. 1431 or INA 322, 8 U.S.C. 1433.

DHS also will not consider:

  1. The receipt of Medicaid for the treatment of an emergency medical condition;
  2. Services or benefits funded by Medicaid but provided under the Individuals with Disabilities Education Act;
  3. School-based services or benefits provided to individuals who are at or below the oldest age eligible for secondary education as determined under state or local law;
  4. Medicaid benefits received by an alien under 21 years of age; or
  5. Medicaid benefits received by a woman during pregnancy and during the 60-day period beginning on the last day of the pregnancy.

The final rule also clarifies that DHS will only consider public benefits received directly by the applicant for the applicant’s own benefit, or where the applicant is a listed beneficiary of the public benefit. DHS will not consider public benefits received on behalf of another as a legal guardian or pursuant to a power of attorney for such a person. DHS will also not attribute receipt of a public benefit by one or more members of the applicant’s household to the applicant, unless the applicant is also a listed beneficiary of the public benefit.

Q. How will DHS determine whether someone is likely at any time to become a public charge for admission or adjustment purposes? 

A. Under the final rule, “likely at any time to become a public charge” means more likely than not at any time in the future to become a public charge (in other words, more likely than not at any time in the future to receive one or more of the designated public benefits for more than 12 months in the aggregate within any 36-month period, such that, for instance, receipt of two benefits in one month counts as two months).

Under this final rule, inadmissibility based on the public charge ground is determined by looking at the factors set forth in 8 CFR 212.22 and making a determination of the applicant’s likelihood of becoming a public charge at any time in the future based on the totality of the circumstances. This means that the adjudicating officer must weigh both the positive and negative factors when determining whether someone is more likely than not at any time in the future to become a public charge. As required by section 212(a)(4) of the Act, and this final rule, when making a public charge inadmissibility determination, a USCIS officer must consider the applicant’s:

Q. How will DHS determine whether someone is likely at any time to become a public charge for admission or adjustment purposes?

A. Under this final rule, inadmissibility based on the public charge ground is determined by looking at the factors set forth in 8 CFR 212.22 and making a determination of the applicant’s likelihood of becoming a public charge at any time in the future based on the totality of the circumstances. This means that the adjudicating officer must weigh both the positive and negative factors when determining whether someone is more likely than not at any time in the future to become a public charge. As required by section 212(a)(4) of the Act, and this final rule, when making a public charge inadmissibility determination, a USCIS officer must consider the applicant’s:

  • Age;
  • Health;
  • Family status;
  • Assets, resources, and financial status;
  • Education and skills;
  • Prospective immigration status;
  • Expected period of admission; and
  • Sufficient Form I-864, when required under section 212(a)(4)(C) or (D) of the INA.

If you want to learn more about this and other immigration law topics do contact us at (+1) 888 820 4430 (toll free) 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 publishes a final rule which makes a number of significant changes to its EB-5 Immigrant Investor Program

Adhikari Law PLLC, Washington, D.C. U.S. Citizenship and Immigration Services (USCIS) has published a final rule on July 24 that makes a number of significant changes to its EB-5 Immigrant Investor Program, marking the first significant revision of the program’s regulations since 1993. The final rule will become effective on Nov. 21, 2019.

New developments under the final rule include:

  • Raising the minimum investment amounts;
  • Revising the standards for certain targeted employment area (TEA) designations;
  • Giving the agency responsibility for directly managing TEA designations;
  • Clarifying USCIS procedures for the removal of conditions on permanent residence; and
  • Allowing EB-5 petitioners to retain their priority date under certain circumstances.

Under the EB-5 program, individuals are eligible to apply for conditional lawful permanent residence in the United States if they make the necessary investment in a commercial enterprise in the United States and create or, in certain circumstances, preserve 10 permanent full-time jobs for qualified U.S. workers.

Major changes to EB-5 in the final rule include:

  • Raising minimum investment amounts: As of the effective date of the final rule, the standard minimum investment level will increase from $1 million to $1.8 million, the first increase since 1990, to account for inflation. The rule also keeps the 50% minimum investment differential between a TEA and a non-TEA, thereby increasing the minimum investment amount in a TEA from $500,000 to $900,000. The final rule also provides that the minimum investment amounts will automatically adjust for inflation every five years.
  • TEA designation reforms: The final rule outlines changes to the EB-5 program to address gerrymandering of high-unemployment areas (which means deliberately manipulating the boundaries of an electoral constituency). Gerrymandering of such areas was typically accomplished by combining a series of census tracts to link a prosperous project location to a distressed community to obtain the qualifying average unemployment rate. As of the effective date of the final rule, DHS will eliminate a state’s ability to designate certain geographic and political subdivisions as high-unemployment areas; instead, DHS would make such designations directly based on revised requirements in the regulation limiting the composition of census tract-based TEAs. These revisions will help ensure TEA designations are done fairly and consistently, and more closely adhere to congressional intent to direct investment to areas most in need.
  • Clarifying USCIS procedures for removing conditions on permanent residence: The rule revises regulations to make clear that certain derivative family members who are lawful permanent residents must independently file to remove conditions on their permanent residence. The requirement would not apply to those family members who were included in a principal investor’s petition to remove conditions. The rule improves the adjudication process for removing conditions by providing flexibility in interview locations and to adopt the current USCIS process for issuing Green Cards.
  • Allowing EB-5 petitioners to keep their priority date: The final rule also offers greater flexibility to immigrant investors who have a previously approved EB-5 immigrant petition. When they need to file a new EB-5 petition, they generally now will be able to retain the priority date of the previously approved petition unless DHS revokes the petition’s approval for fraud or willful misrepresentation by the petitioner, or revokes the petition for a material error. However, once a petitioner uses that approved petition’s priority date to obtain conditional permanent residence, that priority date is no longer available for use on any later-filed petition.

If you want to learn more about EB-5 investor immigration program or other immigration law topics do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7743, 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. 

Fairness for High-Skilled Immigrants Act of 2019 Passes House of Representatives

Washington, D.C. U.S. House of Representatives (House) has passed the H.R. 1044 – Fairness for High-Skilled Immigrants Act of 2019 today. The bill will now goes to U.S. Senate (Senate). Passed/agreed to in House on motion to suspend the rules and pass the bill, as amended Agreed to by the Yeas and Nays: (2/3 required): 365 – 65 (Roll no. 437). The bill was introduced in House on February 7, 2019. This bill increases the per-country cap on family-based immigrant visas from 7% of the total number of such visas available that year to 15%, and eliminates the 7% cap (per-country) for employment-based immigrant visas. It also removes an offset that reduced the number of visas for individuals from China.

The bill also establishes transition rules for employment-based visas from FY 2020- FY2022, by reserving a percentage (15%, 10% and 10%) of EB-2 (workers with advanced degrees or exceptional ability), EB-3 (skilled and other workers), and EB-5 (investors) visas for individuals not from the two countries with the largest number of recipients of such visas. Of the unreserved visas, not more than 85% shall be allotted to immigrants from any single country. These provisions will expedite the employment-based immigrant visa processing or adjustment of status for the national of China, India and other countries with backlogs on EB-5.

History of the Bill

 

Feb. 7, 2019: Bills and resolutions are referred to committees which debate the bill before possibly sending it on to the whole chamber.    Read Text

July 5, 2019: The House indicated that this bill would be considered in the week ahead.

July 10, 2019: The bill was passed in a vote in the House. It goes to the Senate next.   View Vote

Upon further action on the bill, the following steps may occur next:

Passes Senate

Signed by the President

 

 

If you or your employer wants to learn more about employment-based immigration programs or about other immigration and visa programs do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7742, 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.

U.S. begins implementation of E-2 Investor Visas for Israeli Nationals

Washington, D.C. Adhikari Law PLLC. The U.S. has started the implementation of the U.S. E-2 Investor Visa for Israeli nationals, beginning May 1. E-2 visa is a temporary (nonimmigrant) visa that can be used to develop, direct, or provide specialized skills to an enterprise in which the owner has invested a substantial amount of capital. With the implementation of this visa, Israeli investors now have the opportunity to invest in the U.S. economy and send qualified employees to the United States. Likewise, U.S. citizens will be eligible to apply for visas to invest in Israel.

To qualify for a Treaty Investor (E-2) visa:

·         The investment must be substantial and sufficient to ensure the successful operation of the enterprise;

·         The business must be a real operating enterprise;

·         The investor must be traveling to the U.S. to develop and direct the enterprise;

·         If the applicant is not the investor, he or she must be employed in a supervisory, executive, or highly specialized skill capacity.

All Israeli companies seeking E-visas for their owners or employees must apply at the Branch Office in Tel Aviv and establish that the trading enterprise or investment meets the requirements. The company and applicant have the burden of demonstrating fulfillment of requirements for Treaty Trader/Investor status under Foreign Affairs Manual. For both first-time applicants and renewals, the company must submit supporting documents, including the individual application for the employee, by mail.

If USCIS authorized a Change of Status to E for a person in the United States, that status is only valid as long as you remain in the United States. To obtain an E-visa, the company and applicant must submit a complete package by mail as per first time applicants.

Selected Required Documents:

·         Cover Letter: This must be printed on company letterhead and outline the company’s qualifications for E-1 status. The letter must address all the requirements for E visa eligibility as defined by the Foreign Affairs Manual.

·         Table of Contents: Identify the documents provided and their location in the binder.

·         Completed Application: Form DS-156E Part I- Business Profile, and Part II -Staff.  Please complete every question and do not write “see attached” in response to any question.

·         Evidence that the company meets the ownership requirements:

o    For public companies: a translated copy of the Company Registrar from the Israeli Ministry of Justice, detailing the shareholders’ names and percentage of stock ownership, and a statement from a CPA stating the amount of stock that is traded on any stock exchange.

o    For privately owned companies: documentation of ownership.

o    For companies that are ultimately owned by other Israeli companies or by a consortium: documentation identifying the ultimate shareholders by nationality (Note: To the extent that a certain percentage of a company’s stock is traded on the TASE, the nationality of the shareholders of that stock may be assumed to be Israeli.)

o    For companies that have been incorporated in the U.S.: certificate/articles of incorporation, certificate of shares issued to shareholders, business license, and lease contracts. [In all cases, please submit a formal CPA letter indicating the nature of the company (branch, subsidiary, or partnership), its structure, the ownership distribution, and nationality of shareholders.]

·         Proof of Israeli nationality: The nationality of an enterprise is determined by the nationality of its individual owners.  Documents to prove nationality may include a valid passport of the owners of the ultimate parent company.

·         Evidence that at least 50% of international trade is between the U.S. and Israel: A formal statement from the company’s CPA showing international imports/exports over the last year. The statement must include:

o    Which countries the company imports from

o    Which countries the company export to

o    The volume of trade with each country

o    The volume of returned goods

o    The number of transactions with each country

·         Evidence of substantial and continuous flow in goods/services:

o    Invoices of purchases and sales for the last year

o    Bank records

o    Bills of shipment

o    Contract

·         Evidence of the company’s financial situation:

o    Most recent audited financial statement

o    Most recent quarterly annual report

o    Most recent U.S. tax return

·         The file MUST include an Employee’s visa application:

o    Completed DS-160

o    Evidence of payment of the MRV application fee (payable on the Visa Information Service website)

o    One photograph that meets the specifications

o    Form DS-156E

o    Employee’s Curriculum Vitae

o    Letter on company letterhead explaining the reasons why the employee must be in the U.S. and a description of his/her responsibilities

o    Photocopy of the bio page of the employee’s passport

·         Visa application for dependents: for each family member

 

The documentation requirement and the process for E-2 visa is complex and generally requires a professional help. If you or your employer want to learn more about E-2 Investor Visa program or work visa for manager or executives do contact us at (+1) 888 820 4430 (toll free), or (+1) 202 600 7742, or email us at info@adhikarilaw.com

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

USCIS projects it will reach H-1B visa regular cap for 2020

USCIS has said it received a sufficient number of petitions projected as needed to reach the congressionally-mandated 65,000 H-1B visa regular cap for fiscal year 2020. USCIS will next determine if we have received a sufficient number of petitions to meet the 20,000 H-1B visa U.S. advanced degree exemption, known as the master’s cap.

The agency will reject and return filing fees for all unselected cap-subject petitions that are not prohibited multiple filings (PDF, 119 KB).

USCIS will continue to accept and process petitions that are otherwise exempt from the cap.  Petitions filed for current H-1B workers who have been counted previously against the cap, and who still retain their cap number, are exempt from the FY 2020 H-1B 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;

·         Allow current H-1B workers to change employers; and

·         Allow current H-1B workers to work concurrently in a second H-1B position.

U.S. businesses use the H-1B program to employ foreign workers in specialty occupations. We encourage H-1B applicants to subscribe to the H-1B Cap Season email updates located on the H-1B Fiscal Year (FY) 2020 Cap Season page.

 

 

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 announces the start of the 2020 H-1B cap season, premium processing dates, and the launch of its new H-1B data hub

U.S. Citizenship and Immigration Services (USCIS) announced today 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.

Department of Homeland Security posts final rule amending regulations governing H-1B cap-subject petitions, including those that may be eligible for the advanced degree exemption.

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 the 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.

USCIS will accept H-1B petitions on April 1, 2019 for the Fiscal Year (FY) 2020

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-subject 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:

 

·         Ready all supporting documents (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:

o    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 detailed article regarding USCIS memo about third-party placement)

 

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 reaching 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)

Partial government shutdown in effect

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.

·       DOL: Is NOT impacted by this government shutdown. On September 28, 2018, President Trump signed an omnibus appropriations bill funding DOL through the end of September 30, 2019.

·       SSA: According to the SSA Contingency Plan for FY2019, during a shutdown the SSA would “except” 53,000 employees in order to maintain key functions including issuing of original and replacement Social Security number cards.

·       EB-5: USCIS provided updated guidance on the impact of the shutdown on the EB-5 program.

·       E-Verify: E-Verify and related services are generally suspended.

·       CBP: The CBP website is not being “actively managed” and was last updated on December 21, 2018.

·       DOJ Civil Litigation: Civil litigation is “curtailed or postponed to the extent this can be done without compromising to a significant degree the safety of human life or the protection of property.”

 

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.

·       In the past, when the government reopened, USCIS accepted late I-129 filings provided the petition was submitted with evidence that the primary reason for failing to timely file an extension of stay or change of status request was the government shutdown.

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.