E-Verify Operations Have Resumed
Department of Homeland Security provides guidance regarding the resumption of E-Verify operations following the lapse in government appropriations. While all E-Verify features and services, including the ability to resolve a tentative nonconfirmation (TNC) are now available, employers may experience longer-than-usual processing times as the agency works through a large volume of accumulated cases.
Now that E-Verify operations have resumed, employers who participate must create an E-Verify case by 2/11/19 for each employee hired while E-Verify was not available.
USCIS Resumes Premium Processing Option for Last Year’s FY2019 H-1B Cap Petitions
USCIS had previously suspended Premium Processing, the optional service to have a petition adjudicated within 15 calendar days, during last year’s H-1B lottery season for a variety of H-1B petitions. USCIS has now resumed premium processing on Monday, January 28, for all last fiscal year (FY) 2019 H-1B cap petitions. Petitioners who have received requests for evidence (RFEs) for pending FY 2019 cap petitions should include their RFE response with any request for premium processing they may submit. This service is only available for pending petitions.
The previously announced temporary suspension of premium processing remains in effect for all other categories of H-1B petitions to which it applied. USCIS plans to resume premium processing for the remaining categories of H‑1B petitions as agency workloads permit.
Department of State and Mission China Announce Changes in H and L Visa Processing
The Department of State and Mission China shared a plan to consolidate the processing of H and L visa applications:
“The United States Embassy in Beijing and Consulates General in Mission China would like to take this opportunity to advise the American Immigration Lawyers Association that changes have been made to consolidate the processing in China of H and L visa applications for foreign nationals seeking to work in the United States. Starting March 1, 2019, interviews for H and L visas will be conducted only at the U.S. Embassy Beijing, U.S. Consulate General Guangzhou, and U.S. Consulate General Shanghai. We will no longer be conducting H or L visa interviews at U.S. Consulate General Chengdu or U.S. Consulate General Shenyang. We have made these changes due to the volume and complexity of H and L visa cases and to ensure that we have the proper resources and expertise to efficiently process them. For more information, please go to: http://www.ustraveldocs.com/cn/cn-niv-typework.asp#WhentoApply.”
Federal District Court Issues a Temporary Restraining Order (TRO) in the "Unlawful Presence" Challenge
On August 9, 2018, USCIS published its finalized Unlawful Presence Memo regarding students and certain scholars, referred to as F, J, and M nonimmigrants. This change in USCIS policy regarding the accrual of unlawful presence for F, J, and M nonimmigrants not only has an immediate effect on students and exchange visitors and their dependents, but for those unaware of a violation of status, the resulting effect can be devastating and long lasting.
On October 23, 2018, a group of higher education institutions challenged the Unlawful Presence policy change that could open up more international students to harsh immigration penalties, and filed a lawsuit in North Carolina federal court (Guilford College v. Neilsen, 10/23/18) asserting that the policy change will hurt both the students and American universities.
This past January 28, 2019, the court granted a temporary restraining order, barring application of the new USCIS unlawful presence policy to the two individual named plaintiffs. The TRO does not offer protection yet to other persons from the effects of the unlawful presence memorandum.
A hearing has been set for arguments on the merits on March 26, 2019.
No Action on Administration’s Request to Expedite Ruling on DACA
As of Tuesday January 22, 2019, the U.S. Supreme Court had taken NO action on a November 2018 request by the Trump Administration to expedite a ruling on the court decisions that keep the DACA program in place. As a result, it is increasingly likely that the earliest the Supreme Court would hear the case – if at all – is in its new term that starts October 2019. If that prediction holds true, DACA protections will likely remain in place under current court rulings through at least the end of 2019.
I-360 Religious Workers Program Extended Temporarily
The i-360 Religious Workers Program was temporarily extended on January 25, 2019, as part of the joint resolution signed by the president, extending the EB-4 non-minister special immigrant religious worker program through February 15, 2019. This resolution allows these workers to immigrate or adjust to permanent resident by that date, after which period, the program is on hold until reauthorized.
Immigration Risks of Legalized Marijuana
Given the partial legalization of the use and possession of marijuana in several states, it may be helpful nevertheless to warn noncitizen employees and students of the serious immigration consequences which they still face for the use and/or possession of marijuana.
The Immigrant Legal Resource Center provides a practice advisory on the immigration risks of legalized marijuana. The very best strategy is to educate noncitizens ahead of time. The message is simple: Immigration law treats any marijuana-related activity as a crime, with harsh penalties, even if it is permitted under state law.
Changes to H-1B Lottery Process
In the Fall, Department of Homeland Security (DHS) proposed a Merit-Based Rule for More Effective and Efficient H-1B Visa Program, which would require petitioners seeking to file H-1B petitions subject to the regular cap, including those eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. The proposed rule would also reverse the order by which USCIS selects H-1B petitions under the H-1B cap and the advanced degree exemption, changing the process so that the 65,000 "Regular cap" lottery is run first, followed by the 20,000 "Master's cap" lottery.
DHS posted on January 30, 2019 for public inspection, a final rule amending 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. The rule will go into effect on April 1, 2019 for the fiscal year (FY) 2020 cap season.
The rule also introduces the electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions. However, USCIS will be suspending the electronic registration requirement for this cap season to complete user testing and ensure the system and process are fully functional.
Once implemented, the electronic registration requirement will require petitioners seeking to file H-1B cap petitions, including those that may be eligible for the advanced degree exemption, to first electronically register with USCIS during a designated registration period. Only those whose registrations are selected will be eligible to file an H-1B cap-subject petition.
USCIS will begin accepting H-1B cap petitions for FY 2020 on April 1, 2019. Please feel free to contact the attorneys of Iandoli, Desai & Cronin with your questions this year’s H-1B lottery process.
REMINDER: H-1B Planning Season is Upon Us
H-1B sponsorship is offered by U. S. employers for Foreign Nationals working for those employers in Specialty Occupations which require at least a bachelor's degree (or the equivalent in education and experience). Approved H-1B employees can work for the sponsoring employer for 3 years in the first instance.
All cap-subject H-1B petitions (those limited by the annual national quota) must be filed with the Immigration Service during the first five business days in April 2019.
Now is the best time for employers to decide whether they will file H-1B petitions in April and for whom. It is good to both start the internal discussions and to initiate the process early because normal preparation of the H-1B Petition can take 30 to 45 days during this busy season.
Please feel free to contact the attorneys of Iandoli, Desai & Cronin now with your questions and concerns.
The Federal Government Shutdown: Implications for Immigration
Iandoli Desai & Cronin, P.C. are actively following the ongoing government shutdown and its impact on various areas of U.S. immigration law. Generally, if the government shuts for budgetary reasons, all but "essential" personnel are furloughed and are not allowed to work.
When it comes to immigration, agencies that would be impacted by a government shutdown include the Department of Homeland Security and its immigration-related components, including:
U.S. Citizenship and Immigration Services (USCIS);
U.S. Customs and Border Protection (CBP); and
U.S. Immigration and Customs Enforcement (ICE).
A shutdown also affects immigration-related services normally provided by other federal agencies, including:
U.S. Department of Justice (EOIR);
U.S. Department of State (DOS); and
U.S. Department of Labor (DOL).
U.S. CITIZENSHIP AND IMMIGRATION SERVICES (USCIS)
The current lapse in annual appropriated funding for the U.S. government does not affect USCIS's fee-funded activities.
USCIS offices will remain open, and all individuals should attend interviews and appointments as scheduled.
USCIS will continue to accept petitions and applications for benefit requests, except as noted below. Some USCIS programs, however, will either expire or suspend operations, or otherwise affected, until they receive appropriated funds or are reauthorized by Congress. These include:
EB-5 Immigrant Investor Regional Center Program (not the EB-5 Program): Regional centers are a public or private economic unit in the U.S. that promotes economic growth. USCIS designates regional centers for participation in the Immigrant Investor Program. The EB-5 Program will continue to operate.
E-Verify: This free internet-based system allows businesses to determine the eligibility of their employees to work in the U.S.
Conrad 30 Waiver Program for J-1 Medical Doctors: This program allows J-1 doctors to apply for a waiver of the two-year residence requirement after completing the J-1 exchange visitor program. The expiration only affects the date by which the J-1 doctor must have entered the U.S.; it is not a shutdown of the Conrad 30 program entirely.
Non-Minister Religious Workers: This special immigrant category allows non-ministers in religious vocations and occupations to immigrate or adjust to permanent resident status in the U.S. to perform religious work in a full-time, compensated position.
U.S. CUSTOMS AND BORDER PROTECTION (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.
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT (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.
U.S. DEPARTMENT OF JUSTICE (EOIR)
Detained cases are being heard. Non-detained cases scheduled during the "shut down" period will be rescheduled. The acting EOIR Court Administrator in Boston, MA has been furloughed so there likely won't be any action on asylum clock letters.
U.S. DEPARTMENT OF LABOR (DOL)
The DOL will also not be impacted by a government shutdown. On September 28, 2018, President Trump signed a minibus appropriations bill funding DOL through the end of September 30, 2019.