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FAQ about Automatic re-validation of an expired non-immigrant visa based on valid status: What is re-validation of a nonimmigrant visa?

What is re-validation of a nonimmigrant visa?

Generally, the nonimmigrant visa is valid until the duration given on the visa itself. The validity of an expired nonimmigrant visa issued under Immigration and Nationality Act ("INA" or "Act") may be considered to be automatically extended to the date of application for readmission in cases where the original nonimmigrant classification of an alien has been changed by U.S. Department of Homeland Security (DHS) to another nonimmigrant classification, the validity of an expired or unexpired nonimmigrant visa may be considered to be automatically extended to the date of application for readmission, and the visa may be converted as necessary to that changed classification.

Who is eligible for re-validation of a nonimmigrant visa?

The nonimmigrant who is:

  1. in possession of a Form I-94, Arrival-Departure Record, endorsed by DHS to show an unexpired period of initial admission or extension of stay, or,

in the case of a qualified F or J student or exchange visitor or the accompanying spouse or child of such an alien, is in possession of a current Form I-20, Certificate of Eligibility for Nonimmigrant Student Status, or Form IAP-66, Certificate of Eligibility for Exchange Visitor Status, issued by the school the student has been authorized to attend by DHS, or by the sponsor of the exchange program in which the alien has been authorized to participate by DHS, and endorsed by the issuing school official or program sponsor to indicate the period of initial admission or extension of stay authorized by DHS;

AND

2. Is applying for readmission after an absence not exceeding 30 days solely in contiguous territory. In the case of a student or exchange visitor or accompanying spouse or child Travelers (F, J) are allowed to visit contiguous territory or adjacent islands (i.e. Caribbean) other than Cuba for period not exceeding 30 days.

3. Has maintained and intends to resume nonimmigrant status;

4. Is applying for readmission within the authorized period of initial admission or extension of stay;

5. Is in possession of a valid passport;

6. Does not require authorization for admission under INA 212(d)(3); and

7. Has not applied for a new visa while abroad, and the person does not have a pending or rejected application for a new visa. Since it is not possible to renew a non-immigrant visa in the U.S., a person on a non-immigrant visa may travel to a nearby country to apply for a new visa

8. The person is not a citizen of one of the countries designated by the U.S., as a state sponsor of terrorism.

As of 2015 the Department of State list includes four countries:Iran (designated January 19, 1984), Syria (designated August 12, 1993), Sudan (designated December 29, 1979) and Democratic People's Republic of Korea (North Korea designated November 20, 2017). Cuba was removed on April 4, 2015.

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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. 

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.

Department of Homeland Security to propose a merit-based rule to benefit U.S. graduate students and a mandatory online pre-registration requirement for cap-subject H-1B programs

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 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 the 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)

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