imLaw - Immigration Attorney Grand Rapids Michigan

February 13, 2019

February 13, 2019

New H-1B Rule Changing the Order of Cap Case Selection and New Electronic Registration Suspended For This Year

 Published in the Federal Register on January 31, 2019, DHS issued a new H-1B rule which reverses the order by which U.S. Citizenship and Immigration Services (USCIS) selects H-1B petitions under the regular cap and advanced degree exemption.  Effective April 1, 2019,  USCIS will first select H-1B petitions submitted on behalf of all H-1B beneficiaries, including those that may be eligible for the U.S. advanced degree exemption.  USCIS will then select from the remaining eligible petitions, a number projected to reach the 20,000 advanced degree exemption.  USCIS believes this change will likely increase the number of H-1B cap cases with a master’s or higher degree from a U.S. institution of higher education to be selected under the H-1B numerical allocations. More specifically, the change will result in an estimated increase of up to 16% (or 5,340 H-1B workers) in the number of selected petitions for H-1B beneficiaries with a U.S. advanced degree.

This new rule also introduces a brand new electronic registration requirement for employers seeking to file H-1B cap-subject petitions, however, the electronic registration requirement is suspended for this year, the FY 2020 cap season.  USCIS is suspending the electronic registration process for this season to complete user testing and ensure the system is fully functional.  Once implemented in the future, employers will be required to first electronically register with USCIS during a designated registration period before being able to submit an H-1B cap-subject petition.  Only those employers whose registrations are selected will be eligible to file a cap case with USCIS.  Please contact the ImLaw team if you have any questions on the new H-1B rule.

It’s H-1B Cap Season!

 A friendly reminder that it’s that time again – H-1B cap season.  U.S. employers should currently be working with immigration counsel on initiating an H-1B case for a foreign national employee or prospective employee.  Given the heightened scrutiny on the H-1B work visa category particularly on the nature of the occupation and assigned wage level, as well as the prerequired filing with the Dept. of Labor, it is critical to begin working to prepare these cases well in advance of the April 1, 2019 filing date.  Please contact the ImLaw team with any questions.

USCIS Processing Delays on I-751 and Other Case Types Across the Board   

 

According to a recent Policy Brief by the American Immigration Lawyers Association (AILA), the overall average case processing time has surged by 46 percent over the past two fiscal years and 91 percent since FY 2014.  In fact, AILA has received widespread reports of significant delays in the issuance of I-751 removal of conditions on residence receipts by USCIS, as well as the scheduling of biometrics for I-751 cases.  Moreover, both jointly-filed I-751 and I-751 waiver cases are experiencing lengthy delays in adjudication, approaching 12 months and longer for a decision.  Aware of the delays, USCIS issued new 18-month receipt notices in all I-751 cases which extend the I-751 applicant’s green card status for 18 months beyond the card’s expiration date.  However, AILA members are consistently reporting 2+ month delays in receiving the I-751 receipt notices and even longer delays in receiving a scheduled biometrics notice.  Please contact the ImLaw team if you have any questions on your I-751 or other case.

I-131 Headaches

For many years, if an applicant filed for an I-131 advance parole travel document but departed while the application was pending, USCIS did not consider that I-131 application abandoned despite the language of the regulations.  Currently, however, if an applicant departs the United States while an I-131 advance parole application is pending, and the applicant does not possess a still-valid advance parole travel document, USCIS will deny the I-131 application.  Moreover, USCIS will still deny the I-131 advance parole application if the applicant possesses valid H-1B, H-4, L-1, or L-2 status.  The H or L beneficiaries may still travel abroad and reenter on H or L status, however, the pending I-131 applications for those individuals will be denied by USCIS unless they also possess a still-valid advance parole document.  In light of this new practice, ImLaw recommends applicants with pending advance parole applications who do not possess still-valid advance parole documents to refrain from unnecessary overseas travel until the I-131 application is approved, if possible.

Premium Processing Resumed only for FY 2019 Pending H-1B Cap Cases

Beginning January 28, 2019, USCIS resumed premium processing for pending FY 2019 H-1B cap-subject cases only.  Premium processing has not resumed for H-1B extension or transfer cases, nor has it been resumed for this year’s FY 2020 H-1B cap cases.  To clarify, premium processing is currently available only for H-1B cap-exempt employer cases and pending FY 2019 H-1B cap cases.