March 19, 2019

USCIS FY2020 H-1B Cap and Premium Processing Update

On March 19, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that it will take a two-phased approach to premium processing for H-1B cap petitions when the FY 2020 filing period begins April 1, 2019. The first phase will include FY 2020 H-1B cap petitions requesting a change of status and the second phase will include all other FY 2020 H-1B cap petitions.

In the first phase, petitioners filing H-1B cap petitions with change of status requests may concurrently request premium processing service by filing Form I-907 when the H-1B cap petition is initially filed. While USCIS will not begin premium processing these petitions immediately, it will commence premium processing for these cases not later than May 20, 2019.  USCIS will notify the public as to the precise date that premium processing service for these petitions begins. Petitioners who file change of status H-1B cap petitions without concurrently filed premium processing requests will also have the option of interfiling premium processing requests once premium processing service for these petitions begins.

The second phase of premium processing will include all other FY 2020 H-1B cap petitions (i.e., all petitions that do not request a change of status on Form I-129).   USCIS indicates that premium processing for these petitions will not begin until at least June 2019. Once USCIS establishes the effective date for phase two, employers may interfile Form I-907 to request premium processing service for these H-1B cap petitions.  Employers may not request premium processing service for these cases until USCIS establishes the effective date.

As a reminder, at this time, premium processing is available for all non-cap subject H-1B petitions, such as extension of stay and change of employer requests.  See Gibney’s prior immigration alert on this topic.

New H-1B Data Hub

USCIS also announced that it will launch a new H-1B Employer Data Hub on April 1, 2019.  The data hub will allow the public to search for H-1B petitioners by fiscal year, NAICS industry code, company name, city, state and zip code. The hub is expected to give the public ability to calculate approval and denial rates, and to identify which employers are using the H-1B program.

For more information on the FY2020 H-1B cap program, visit the USCIS’s FY2020 H-1B Cap Season website.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

 

 

March 19, 2019

United Kingdom to Expand ePassport Gate Program

Commencing June 1, 2019, the United Kingdom will expand the ePassport Gate program to include citizens of the United States, Australia, Canada, Japan, New Zealand, Singapore, and South Korea. Individuals using ePassport gates are not required to complete or present a landing card at entry. Citizens of the United Kingdom and European Economic Area (EEA) countries already have access to the ePassport gates. The goal of this program is to improve the passenger experience at entry by significantly improving queue times while maintaining security.

Travelers from the designated countries using ePassport gates must be over age 12 and must possess a biometric passport.
Gibney will continue to monitor this program and provide updates as they become available. If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

This article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

March 12, 2019

Schengen Area Countries to Require Travel Clearances for Visa Exempt Travelers as of January 2021

Commencing January 1, 2021, visa-exempt travelers to Schengen area countries, including U.S. citizens, will be required to obtain a European Travel Information and Authorization System (ETIAS) clearance prior to visiting these countries. There are currently 26 Schengen countries in Europe that will require an ETIAS clearance, and four additional countries, Romania, Bulgaria, Croatia and Cyprus, are expected to join the area soon. Notably, the United Kingdom and Ireland are not part of the Schengen area.

Currently, U.S. citizens may travel to the Schengen area for a maximum stay of 90 days within a six month period without a visa. As of January 1, 2021, while a visa will not be required, U.S. citizens will need to register online for an ETIAS clearance. Applicants will need a passport valid for three months beyond the period of intended stay, a credit or debit card to pay the government filing fee of 7 euros, and an email account to receive the ETIAS confirmation. The ETIAS clearance will be valid for three years.

ETIAS is expected to assist European immigration and customs officials in pre-screening all travelers to improve security measures in the Schengen area.

Gibney will continue to monitor this program and provide updates as they become available. If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

This article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

March 12, 2019

Premium Processing Service For H-1B Petitions: Update

On March 12, 2019, USCIS reinstated premium processing service for H-1B petitions. On March 13, USCIS clarified that the announcement was not specific to FY 2020 H-1B cap petitions, and that the government will address these filings in a separate announcement.

Last year, USCIS suspended premium processing service for FY 2019 H-1B cap petition in March 2018. It expanded the suspension to most other H-1B petitions in September 2018. Since January 2019, USCIS has re-introduced the benefit incrementally. H-1B petitioners may now request premium processing service for all pending and newly filed H-1B petitions by filing Form I-907 and paying a fee of $1410. USCIS will then adjudicate the petition within 15 days.

As noted, a separate announcement is expected for FY 2020 H-1B cap petitions that can be filed as of April 1, 2019. As a practical matter, employers intending to file H-1B cap petitions April 1 should explore filing strategies with Gibney.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

February 19, 2019

USCIS Resumes Limited Premium Processing for H-1Bs

The U.S. Citizenship & Immigration Services (USCIS) has indicated that it will resume Premium Processing on Tuesday, February 19, 2019 for pending H-1B petitions filed on or before December 21, 2018. USCIS previously announced a temporary suspension of Premium Processing for certain H-1B petitions, and this suspension remains in effect for H-1B petitions that were filed on or after December 22, 2018. The USCIS has indicated that it plans to resume Premium Processing for the remaining categories of H‑1B petitions as agency workloads permit.

Premium Processing ensures expedited adjudication of petitions within a 15 calendar day processing time frame. Premium Processing requests are submitted to USCIS with Form I-907 and a government filing fee of $1,410.00. Please see the USCIS website for details on where to file the Premium Processing request for applicable petitions.

See Gibney’s prior alert USCIS Resumes Premium Processing for Fiscal Year 2019 H-1B Cap Petitions for further details. Gibney is actively monitoring developments and will provide an update when Premium Processing for additional H-1B petitions is reinstated.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

January 30, 2019

DHS to Change H-1B Cap Lottery Selection Process

On January 30, 2019, the Department of Homeland Security (DHS) announced that it will publish a final rule on January 31, 2019 to amend regulations governing the H-1B cap process. Some changes will take effect for H-1B cap petitions filed this year (April 1, 2019) while other changes will be implemented for cap petitions filed in fiscal year (FY) 2021.

New this Year: Reversed H-1B Cap Lottery

This year, U.S. Citizenship and Immigration Services (USCIS) will reverse the order of the H-1B cap lottery. Currently there are two H-1B cap lotteries: the regular H-1B cap lottery and the H-1B cap lottery for U.S. advanced-degree holders, for which an additional 20,000 visas are available. Historically, USCIS has held the advanced degree lottery first and petitions not selected in that lottery were added to the regular lottery. The new rule will reverse the lottery. USCIS will conduct the regular lottery first, and upon completion, USCIS will conduct the advanced degree cap lottery for the remaining petitions for beneficiaries holding advanced degrees from U.S. universities. USCIS predicts that this change will result in 16% more advanced-degree holders being selected in the H-1B regular lottery.

Implementation of H-1B Cap Electronic Registration Requirement Postponed

The final rule also will introduce an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions; however, this registration requirement will be suspended for the upcoming FY2020 H-1B cap season. USCIS expects to implement this registration requirement for future cap seasons, once user testing has been completed and it can be ensured that the system and process are fully functional. For information on how the electronic registration requirement is expected to work, please see our alert USCIS Proposes to Modify FY2020 H-1B Cap Process.

Postponement of the registration requirement until next year has been generally met with relief given widespread concerns about the feasibility of creating and successfully implementing a system for this year’s H-1B cap filing period. Looking ahead, USCIS indicated it will conduct outreach to ensure petitioners understand how to access and use the system prior to implementation next year. Once implemented, the registration system is expected to lower costs for employers and increase government efficiency in managing the H-1B cap process and adjudicating H-1B cap petitions.

What Should Employers Do Now?

With increasing demand for H-1B workers, we encourage employers to identify potential H-1B cap cases now and work with immigration counsel to take appropriate steps to ensure timely preparation and filing of cases when the H-1B cap filing period opens on April 1, 2019. Last year, the H-1B cap petition quota was reached during the first week of filing for the sixth consecutive year. We anticipate that the H-1B quota will be reached quickly again this year. This means that employers should plan to file all H-1B cap petitions by April 1, 2019. Prior to filing any petitions, employers must work proactively with counsel to vet cases for eligibility, obtain credential evaluations, and secure Labor Condition Applications from the U.S. Department of Labor.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

January 30, 2019

Shutdown Ends and Immigration Services Resume

On January 25, 2019, President Trump signed a stopgap spending bill to re-open the U.S. government. Federal agencies affected by the 35-day shutdown have resumed operations and will be funded until February 15, 2019.

E-Verify also resumed operations, and the Department of Homeland Security provided instructions for participating employers to ensure compliance:

  • Employers who participate in E-Verify must create an E-Verify case by February 11, 2019 for each employee hired while E-Verify was not available.
  • Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If the case creation date is more than three days following the date the employee began working for pay, select “Other” from the drop-down list and enter “E-Verify Not Available” as the specific reason.

For additional details regarding E-Verify compliance during the shutdown, please visit the E-Verify site.

The situation posed by the federal government shutdown remains fluid. If another shutdown occurs on or after February 15, 2019, there may be further impact on immigration-related services such as E-Verify. For further information on the U.S. government agencies and services likely to be impacted if there is another shutdown, please see Immigration Alert: Potential Government Shutdown and Immigration Impact.

Gibney will be closely monitoring the situation and provide updates as necessary. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

January 28, 2019

USCIS Resumes Premium Processing for Fiscal Year 2019 H-1B Cap Petitions

Effective January 28, 2019, USCIS is resuming premium processing for all fiscal year (FY) 2019 H-1B cap petitions. Petitioners may now interfile requests for premium processing of H-1B cap petitions that were filed in April 2018 and are still pending.  Petitioners who have received Requests for Evidence (RFEs) on FY 2019 H-1B cap petitions may also submit premium processing requests when filing RFE responses.  A request for premium processing service must be made on Form I-907 and must be accompanied by the $1,410 filing fee.  USCIS then guarantees a 15-day processing time for the petition. If USCIS does not take certain adjudicative action within the 15 calendar day processing time, USCIS refunds the petitioner’s premium processing service fee and continues with expedited processing of the petition.

Premium processing remains suspended for H-1B petitions requesting new employment, amendments to existing employment, or changes of employer. This suspension is projected to remain in effect until February 19, 2019. Petitioners who are filing H-1B extension of status petitions with no material change to the job, as well as certain cap-exempt employers, may continue to request premium processing service.

Gibney is actively monitoring developments and we will provide an update when premium processing for additional H-1B petitions is reinstated.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

January 22, 2019

Plan Now for H-1B Cap Filings

Now is the time of year when employers should identify any current or future employees who may require a cap-subject H-1B petition to work in the U.S. Under current rules, the first day to file H-1B cap petitions is April 1, 2019, for an employment start date of October 1, 2019.

What’s New this Year?

This year, employers face greater uncertainty due to the Department of Homeland Security’s recent publication of a proposed rule that could substantially alter the H-1B cap preparation and filing process.  Specifically, the Administration has proposed to implement an online pre-registration period. Employers would register intended cap petition beneficiaries online, and U.S. Citizenship and Immigration Services (USCIS) would conduct a lottery of the registrants. Employers would only file H-1B cap petitions for registrants selected in the lottery, during a filing window established by USCIS. For additional details on the proposed changes, see Gibney’s Immigration Alert: USCIS Proposes to Modify FY2020 H-1B Cap Process.

The proposed rule was sent to the Office of Management and Budget (OMB) for review on January 14, 2019. OMB has 90 days to review the rule, and the Administration has indicated it would like to implement the rule by April 2019. However, the Administration has also indicated that it could postpone implementation of the pre-registration process until next year.

What Should Employers Do Now?

Because it is highly uncertain whether USCIS will be able to implement the pre-registration process this year, employers may need to prepare to file petitions with USCIS starting on Monday, April 1, 2019. With increasing demand for H-1B workers, we encourage employers to identify potential H-1B cap cases now and work with immigration counsel to take appropriate steps to ensure timely preparation and filing of cases.

Why Start Planning Now?

Last year, USCIS received more than 190,000 H-1B cap-subject petitions, far surpassing the 85,000 visas available, and the H-1B cap petition quota was reached during the first week of filing for the sixth consecutive year. We anticipate that the H-1B quota will be reached quickly again this year. This means that absent a pre-registration process, employers should plan to file all H-1B cap petitions by April 1, 2019. Prior to filing any petitions, employers must work proactively with counsel to vet cases for eligibility, obtain credential evaluations, and secure Labor Condition Applications from the U.S. Department of Labor.

H-1B Petition Categories

H-1B cap cases generally fall within two categories:

  • “Standard” Cap Petitions. The minimum educational requirement is a bachelor’s degree or its equivalent. Standard cases are capped at 65,000 annually.
  • U.S. Advanced Degree Petitions. The beneficiary must hold an advanced degree, defined as a master’s degree or higher, awarded by a U.S. university. USCIS allocates an additional 20,000 H-1B visas for U.S. advanced degree cases each fiscal year.

Who Should Be Considered for an H-1B Cap Petition?

Potential beneficiaries include, but are not limited to:

  • New hires from overseas
  • F-1 students completing a qualifying course of study or working pursuant to Optional Practical Training
  • Some L-1 visa holders
  • TN, E-3 and other nonimmigrant status holders who wish to change to H-1B status in the coming year
  • H-4 Dependent EAD holders. The Administration has indicated that it intends to eliminate work authorization eligibility for the H-4 spouses of certain H-1B visa holders. Employers may wish to consider filing cap petitions for these employees. In addition, employers may wish to evaluate options for L-2 or E dependent EAD holders
  • Certain DACA recipients

A Reminder – H-1B Petitions Not Subject to the Cap

Certain H-1B petitions are not counted against the annual cap, including:

  • Individuals in H-1B Status Previously Counted Against the Cap. In most cases, individuals who were counted against the cap in a previous fiscal year are not subject to the current cap. This includes extensions of status for current H-1B visa holders, changes in the terms of employment for current H-1B workers, and most petitions for changes of H-1B employers and petitions for concurrent employment in a second H-1B position.
  • Petitions for Exempt Organizations. H-1B petitions for employment at institutions of higher learning or related/affiliated nonprofit entities, nonprofit research organizations, and governmental research organizations are cap-exempt.

Gibney will be closely monitoring all proposed changes to policy and procedure and will provide updates. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

January 22, 2019

Estate Tax Planning for New York Residents

The Tax Cuts and Jobs Act increased the Federal Unified Credit for 2019. The estate and gift tax exemption is $11,400,000* per person. What’s better is that for a married couple the Federal exemption is “portable” – this means that an individual can leave $11,400,000 to heirs and married couples can transfer up to $22,800,000 to their children without any estate tax or complicated planning.

New York Estate Tax

What does this mean for New Yorkers? Unfortunately, New York State’s laws are not as generous.  New York only exempts the first $5,740,000* per person.  Additionally, there are two features of the New York estate tax laws that make it challenging to plan for:

  • Unlike the federal exemption, there is no portability between spouses. This means that if you do not utilize the exemption when the first spouse dies you lose it.
  • New York taxes your estate based on a “Cliff”. Once an estate exceeds the exemption amount by 105% New York imposes a tax on the full gross estate, not just the amount over the exemption.

These two items are important to plan for because the New York Estate Tax is significant.  It ranges from 5-16%. Although there are challenges with the New York estate tax laws there are also opportunities.

Planning Opportunities

Make Gifts
New York does not have a gift tax.  With the increased federal exemptions you can make lifetime gifts up to $11,400,000 per person.  This allows for increased lifetime planning. Gifting can be done outright or in trust.  Some gift options to consider:

  • Put assets in trust for certain situations, such as your child is getting divorced, has a chemical dependency issue or is receiving government benefits that could be jeopardized by receiving a lump sum of money.
  • Make gifts to 529 accounts for your grandchildren so that the money can grow without additional income taxes

Add a “Santa Clause”
Plan for the Cliff with a “Santa Clause”.  Many individuals fall into the category of taxpayers whose gross estate falls just over 105% of the New York exemption (currently $6,027,000).  Consider the following example, Jane, a widow has a gross estate of $6,150,000.  Her estate would have to pay New York an estate tax of $529,000.   However, Jane’s will or Living Trust could contain a formula clause which allows her executor or trustee to make a gift charity, decreasing the taxable estate below the Cliff and causing the beneficiaries to end up with more.  For example, the executor could gift  make a gift of just over $125,000 that would cause the estate to only pay tax on the amount over $5,740,000 (less than $30,000).  The net result is that the beneficiaries get more and a charity benefits.

The “Santa Clause” will only benefit a few estates but if your estate hovers around the New York Exemption amount we highly recommend adding it to you estate plan.

Create a Flexible Estate Plan
Some older estate plans fund a credit shelter trust on the death of the first spouse up to the maximum Federal exemption.  If your plan does this the surviving spouse may end up paying New York State estate tax.  We recommend building in a flexible estate plan which allows the surviving spouse to fund a credit shelter trust via a “disclaimer.”  Each spouse would leave each other the remainder of their estate but allow the surviving spouse to “disclaim” or give up a portion of the estate and have it paid to a credit shelter trust.  With such uncertainty over both Federal and New York State estate tax exemption this allows the surviving spouse to tax plan at the time of death when there is certainty.

Utilize the Additional Federal Exemption Against
The increase in the Federal Unified Credit didn’t eliminate the Federal estate tax for all New Yorkers.  For those with gross estates greater than $11,400,000 per person consider utilizing the additional credit by making gifts to Grantor Retained Annuity Trusts (GRATs) or Intentionally Defective Grantor Trusts (IDGTs) to lower or eliminate your Federal estate tax as well.

Next Steps

Review your Estate Plan!  Every situation is different but many can take advantage of these opportunities as well as others.

*The Federal and New York exemptions are scheduled to be increased for inflation annually.