January 3, 2019

EB-1 Immigrant Visa Backlogs and Potential Impact

The U.S. Department of State (DOS) recently released the January 2019 Visa Bulletin. The employment-based first preference (EB-1) category, reserved for multinational executives and managers, individuals of extraordinary ability, and outstanding researchers, remains backlogged for all countries.

Background: What is Immigrant Visa Retrogression?

Each year, by law, 140,000 employment-based immigrant visas (green cards) may be issued to qualified applicants. The visas are distributed among five employment-based (EB) preference categories and then allocated by country of birth according to Congressionally-mandated per country quotas. The EB preference categories are summarized in the monthly Visa Bulletin. Visa retrogression occurs when the number of individuals seeking a green card exceeds the number of visas available in the applicable EB preference category and specific country of birth.  A “cut-off date” is then set and published in the Visa Bulletin. A queue to apply for the green card ensues and a foreign national is assigned a place in line based on his/her priority date.

For employment-based immigrants, the priority date is determined by the date that a PERM labor certification application is filed with the U.S. Department of Labor (DOL) for the sponsored foreign national employee.  In instances where a PERM labor certification is not required (e.g., for EB-1 petitions and EB-2 National Interest Waiver petitions), the priority date is determined by the date that an I-140 immigrant petition is filed with U.S. Citizenship and Immigration Services (USCIS).  In order for a foreign national to apply for a green card, his/her priority date must be available or “current” on the monthly DOS Visa Bulletin.  An immigrant visa number is only available when the priority date is earlier than the cut-off date shown on the Visa Bulletin for the applicable EB preference category and country of birth.

Historically visa retrogression has been severe for foreign nationals born in China and India, particularly in the EB-2 and EB-3 preference categories and the result has been a multi-year wait to file green card applications.  More recently, retrogression has impacted foreign nationals from every country who fall within the EB-1 category.  While the EB-1 category has experienced retrogression for short periods in the past, it has not been prolonged, and typically has only occurred at the end of the fiscal year, as the supply of immigrant visas for that year was depleted.

What is the EB-1 Retrogression Forecast and What Does it Mean for Foreign Nationals?

  • Over the next 8 to 12 months, the cut-off date for the EB-1 category is projected to advance to October 1, 2017 for Indian and Chinese nationals, and to June 1, 2018 for all other nationalities (EB-1 Worldwide). While priority cut-off dates are expected to advance, EB-1 Worldwide will likely remain backlogged for the duration of the fiscal year (through September 30, 2019).  Such a prolonged EB-1 backlog is unusual, and may result in multinational managers and executives, individuals of extraordinary ability, and outstanding researchers waiting for lengthy periods before they may file green card applications.
  • Foreign nationals who hold L-1 Intracompany Transferee nonimmigrant visa status could reach their visa maximum stay limit before they are eligible to apply for a green card, potentially resulting in interrupted U.S. work authorization and the need to depart the U.S. at the conclusion of their authorized temporary period of stay.
  • Lengthy employment-based visa retrogression also denies sponsored foreign nationals and their dependent family members access to ancillary benefits that stem from the filing of an I-485, Adjustment of Status (green card) application. These benefits include eligibility for temporary international travel authorization, unrestricted U.S. work authorization for dependents, and the flexibility for the principal applicant to change jobs and employment locations once the I-485 application is pending for at least 180 days.
  • The inability to apply for a green card may also result in the principal applicant’s dependent children (under age 21 and unmarried) “aging out” (i.e., turning 21). When a dependent child turns 21, he/she loses eligibility for dependent nonimmigrant visa status (such as L-2 and H-4 status), and may also lose eligibility to apply for a green card as the dependent of the principal applicant when an immigrant visa number finally becomes available.

Possible Alternative Strategies for Employers and Foreign National Employees

  • Immigrant Visa Strategies: Immigrant visas in the EB-2 category are available for nationals of countries other than India and China and in the EB-3 category for nationals of countries other than India, China, and the Philippines. Employers may consider sponsoring EB-2 advanced degree professional or National Interest Waivers petitions or EB-3 professional or skilled worker petitions for foreign nationals who otherwise qualify for EB-1.   This option would primarily benefit individuals born in countries other than India and China, as these foreign nationals are experiencing more severe retrogression in the EB-2 and EB-3 categories. EB-2/EB-3 Worldwide availability may be short-lived, however. If sponsorship in these preference categories continues to increase, EB-2/EB-3 Worldwide is likely to experience visa retrogression as well.
  • H-1B Nonimmigrant Visa: To maintain uninterrupted temporary work authorization while waiting for green card issuance, employers may wish to explore changing L-1 nonimmigrant visa holders to H-1B status, where appropriate. The American Competitiveness in the 21st Century Act (AC21) permits certain H-1B visa holders to continue to extend their nonimmigrant visa status beyond their visa maximum stay date while subject to visa retrogression and waiting for green card issuance.  In contrast, L-1 visa holders are not protected by AC21 and are not permitted to extend their nonimmigrant visa status past the maximum stay date. As a result, foreign national employees in L-1 status reaching their nonimmigrant visa maximum stay date could be required to depart the U.S. if they are subject to visa retrogression and unable to apply for their green card prior to their visa maximum stay date. Changing to H-1B status may allow the sponsored foreign national employee to take advantage of AC21 protection and continue to work in the U.S. without interruption until a green card can be issued.
  • Other Nonimmigrant Visa Options: Employers may wish to consider whether L-1 visa holders might also qualify for another nonimmigrant visa classification, such as H-1B1 Specialty Occupation status (for Chilean and Singaporean professionals), O-1 extraordinary ability status, TN status (for Mexican and Canadian professionals), E-2 Treaty Trader/Investor status, or E-3 Specialty Occupation Status (for Australian professionals), as these categories do not have fixed visa maximum stay dates.   However, it should be noted that these strategies may have potential drawbacks that should be considered in the context of the particular facts and circumstances of each case.
  • Overseas Assignments: Employers may wish to consider arranging temporary overseas assignments for employees, as time spent working for an employer outside of the U.S. does not count toward the L-1 visa maximum stay date. In addition, the permanent residence process can be pursued while a foreign national employee is situated outside the U.S.

Looking Ahead

Under the current Administration, it is unlikely that Congress will act to increase the statutory limit of 140,000 employment-based immigrant visas that may be issued each year. Therefore, it is expected that visa retrogression will continue to complicate both nonimmigrant and immigrant visa strategies and workforce planning for employers for the foreseeable future.  We encourage employers to work with their designated Gibney representative to troubleshoot and explore the full range of immigrant and nonimmigrant visa options in an effort to avoid interruptions in U.S. work authorization for valued foreign national employees.

For more information on immigrant visa availability, priority dates, and retrogression, please visit the USCIS website here.

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.

 

December 20, 2018

Potential Government Shutdown and Immigration Impact

Congressional budget negotiations for FY 2020 continue, and the White House is threatening to veto any spending bill that does not fund a border wall. If an agreement to fund various federal agencies is not reached by midnight Friday, December 21, 2018, approximately 25 percent of government functions are expected to shut down. The Department of Homeland Security will be hardest hit, but the impact on immigration benefits is expected to be limited, as follows:

U.S. Citizenship and Immigration Services

Because USCIS application and petition adjudications are primarily funded by user application fees, USCIS is expected to continue operations without great disruption, though processing times may slow. In contrast, USCIS E-Verify service is appropriations-funded and would be suspended. If the government shuts down, employers will not be able to enroll in E-Verify or to access their E-Verify accounts to verify the employment eligibility of new hires and resolve tentative nonconfirmations (TNCs). E-Verify customer service, online webinars and training sessions, and the Self-Check program will also be unavailable during the shutdown. Employers must still comply with their Form I-9 obligations.

U.S. Department of Labor

DOL previously received appropriations for FY 2020 and the agency is funded through September 30, 2019. Business should continue as usual, including the processing of Labor Condition Applications (required for H-1B, H-1B1 and E-3 visa applications), Prevailing Wage Requests, and PERM labor certification applications.

U.S. Customs and Border Protection

CBP personnel, responsible for inspection and law enforcement at U.S. ports of entry, are considered “essential personnel” and are expected to work without pay. U.S. borders and Preflight Inspections (PFI) areas will remain open. However, there may be staffing adjustments that could result in increased wait times to clear inspection and secure admission to the U.S. Additionally, adjudication of petitions by CBP officers at the border and PFI areas, such as TN applications and L-1 petitions for Canadian citizens, is expected to continue.

U.S. Department of State

Visa and passport services are fee-funded and should continue as long as there are sufficient fees to support operations. However, passport offices housed in government buildings otherwise closed during a shutdown may become unavailable to the public. U.S. Embassies and Consulates remain open and will continue to process visa applications as long as funding remains in place. Visa application processing times may be delayed due to staffing adjustments or slowdowns at other federal agencies responsible for processing the security clearances required for visa issuance. A prolonged shutdown could ultimately exhaust DOS appropriations and result in the suspension of visa processing functions for all but emergency cases.

The situation posed by the federal government shutdown remains fluid. If a shutdown occurs, the impact on immigration related services may change the longer any shutdown persists. Gibney will be closely monitoring the situation and will provide updates. 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.

December 4, 2018

USCIS Proposes to Modify FY2020 H-1B Cap Process

On December 3, 2018, U.S. Citizenship and Immigration Services (USCIS) published a proposed rule to modify the H-1B cap-subject petition filing process for the upcoming FY2020 H-1B cap. The proposed regulation would create a registration requirement for cap-subject H-1B petitions and would also provide that the “regular” cap lottery be run before the advanced degree (“Master’s”) cap lottery, so as to increase the number of H-1B visas allocated to individuals holding U.S. advanced degrees.  Publication of the rule is now followed by a 30-day comment period, open until January 2, 2019, during which period the public may provide feedback to USCIS on the proposal. USCIS hopes to implement the new registration requirement for the upcoming FY2020 H-1B cap program, though it is uncertain whether the required regulatory process and technical steps can be completed in time.

Proposed Registration Requirement

  • Registration period: The proposed rule would require employers to first register each prospective H-1B cap petition beneficiary online with USCIS during a designated registration period lasting a minimum of 14 days. The registration period would occur at least two weeks in advance of April 1, the first date H-1B petitions may be filed. USCIS will provide 30-day advance notice of the designated registration period.
  • Online registration form: The online registration form will request basic information about the petitioner and beneficiary, including but not limited to company name and FEIN;  company contact information; beneficiary name, date of birth, country of birth and country of citizenship; and whether the beneficiary holds an advanced degree from a U.S. university. There is no proposed fee for registration submission.
  • Selection of registrants:  At the close of the registration period, if USCIS receives more registrations than needed to reach the H-1B cap (as expected),  USCIS will randomly select a sufficient number of electronic registrations projected as needed to meet the H-1B regular cap and Master’s cap.  Each selected registrant will then be assigned a designated 60-day period during which the petitioning employer must file the H-1B petition for the selected registrant. Registrants who are not selected will remain in a registration reserve, and if additional H-1B visas become available (for example, if a selected registrant does not ultimately file an H-1B petition), USCIS may select additional registrants from the reserve to file H-1B cap petitions.

Lottery Reversal

  • Current lottery order:  There are currently 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.
  • Proposed lottery order: The proposed rule would reverse the lottery order and include all registrants in the regular lottery. USCIS would conduct the regular lottery first, and upon completion, USCIS would conduct the advanced degree cap lottery for the remaining registrants 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.

Timing Issues and Impact on Employers

USCIS indicates that it would like to implement these rule changes for the upcoming FY2020 H-1B cap season.  However, timing will be a significant challenge.

USCIS must consider all comments received in response to this proposal through January 2, 2019. USCIS must then publish an implementing regulation that contemplates these comments. If comments are numerous, as expected, it will take additional time for USCIS to review, analyze, and refine the regulation as needed.  Additionally, in the proposed regulation USCIS acknowledged that other factors may result in the registration requirement being postponed, including technological problems related to creating and operating the online registration database.

Therefore, USCIS may ultimately require employers to prepare and file H-1B cap petitions for FY2020 on April 1, consistent with historical practice, instead of utilizing the proposed streamlined registration process.  If USCIS defers the registration requirement to FY2021, USCIS will nonetheless conduct the H-1B cap lotteries in the proposed reverse order, as outlined above, in an effort to allocate more visas to advanced-degree holders.

Next Steps

Gibney is closely monitoring the proposed rule, identifying issues and considering responsive comments, and planning H-1B cap strategies to meet these new challenges. If you have questions concerning the proposed rule, or if you would like assistance in submitting a comment on the rule, please contact your designated Gibney representative or email info@gibney.com.

November 8, 2018

U.S. Court of Appeals Upholds DACA

The U.S. Court of Appeals for the 9th Circuit has ruled that the Administration cannot immediately end Deferred Action for Childhood Arrivals, or DACA, the program that shields from deportation young undocumented immigrants who were brought to the country as children.

The decision keeps in place an injunction from the lower court that allows DACA recipients to renew their applications. It also makes it more likely that the U.S. Supreme Court will settle the question. The Trump administration has asked the Supreme Court to add it to the docket for this term, but the Justices have not acted upon the request to date.

DACA is a program that was created in 2012 under the Obama administration and has served to protect nearly 700,000 young immigrants from deportation. In 2017, the Trump administration moved to end the program after several states threatened to sue. A number of courts have since ruled to keep the program in place.

November 1, 2018

Immigration Planing for Holiday Travel

As the holiday season approaches, international travelers should expect airports, Consulates and U.S. Ports of Entry to be exceptionally busy due to the large number of travelers and visa applicants, and enhanced security measures and vetting procedures. We encourage corporate human resource personnel, business travelers, and foreign national employees to take proactive steps and plan ahead to minimize the likelihood of delays when traveling abroad and entering the U.S.

Important Reminders:

Passports: All travelers, including U.S. and Canadian citizens, should confirm the validity of passports for themselves and accompanying family members. Passports should be extended or renewed in advance to ensure at least six months’ validity at the time of visa application or entry to the U.S. Many countries allow renewal of passports by mail Consulates or Embassies in the U.S. Please visit Contact Info for Foreign Embassies and Consulates and select the applicable country to find the Consulate nearest you.

Visa Waiver Travelers to the U.S.: The Electronic System for Travel Authorization (ESTA) is a mandatory, online pre-screening system for Visa Waiver Program (VWP) travelers. ESTA is only available for travelers who are citizens of recognized VWP countries and who wish to enter the U.S. for B-1 business or B-2 tourism purposes. In order to enter under VWP, travelers must obtain a valid ESTA approval prior to travel. Once approved, the approval may be valid for up to two years. However, if any changes occur after approval (such as obtaining a new passport, name or country of citizenship change, or answers to any of the VWP eligibility questions change, such as an arrest), a new ESTA application must be submitted. If a traveler is not eligible for ESTA, they must apply for the appropriate visa to enter the U.S. A list of current VWP countries and more information on VWP is available here.

Plan Ahead for Visa Issuance at Consulates:

  • Foreign nationals are strongly advised to consult with immigration counsel before applying for a visa in order to prepare for enhanced vetting and for the consular interview.
  • Schedule consultations 60-90 days prior to travel, whenever possible.  Appointment wait times at U.S. consulates can range from a few days to a few months.
  • Foreign nationals requiring visa issuance at a Consulate abroad should check the Consulate’s website prior to travel for specific procedures regarding booking visa appointments and documentation required for visa interviews. Consular procedures vary widely and are subject to change with little or no notice. Links to U.S. consular posts around the world are available on the DOS website.
  • All visa applicants (including dependent spouses and children of principal visa holders) require completion of the Form DS-160 as part of the visa application process, and many Consulates require this step be completed prior to scheduling a visa appointment. Given increased data sharing by federal agencies, we recommend foreign nationals retain a copy of the final Form DS-160 for their records, prior to online submission.
  • Prior to traveling, foreign nationals should review the underlying visa application/petition prepared by Immigration Counsel to ensure the accuracy of the information reported and consistency in visa applications.
  • Online profiles for employers and employees: Government officials at U.S. Citizenship & Immigration Services (“USCIS”), Consulates, and U.S. Ports of Entry are increasingly searching the internet and reviewing the social media profiles of visitors and foreign workers applying for benefits or seeking entry to the U.S. Be sure to review information online and update social media profiles on websites such as LinkedIn or Facebook. Employers are also advised to update corporate information on company pages and sites such as Dun & Bradstreet that may be referenced by officers to verify bona fide employment or business information through the USCIS’ Validation Instrument for Business Enterprises (VIBE) program.
  • Current wait times for visa appointments and visa processing times vary by Consulate, and can be found here. Timeframes are estimates only and may not be updated regularly. Actual processing times may be longer, and do not contemplate any unforeseen delays due to security or background clearance issues, which may delay visa issuance for several weeks or months. In addition, enhanced security screening measures have been implemented for certain visa applicants. Foreign nationals should alert Immigration Counsel immediately if visa issuance is delayed due to security or background clearance issues.
  • U.S. Consulates abroad observe both U.S. and local country holidays. In addition, many consular offices may be short-staffed due to vacations. It is important during the holiday season to check with the Consulate in advance to confirm office hours and closures, which may result in delayed visa processing.

Status and Entry Documentation: Upon entry to the U.S., certain entrants may be required to show additional evidence of work authorization or government approval in addition to a currently valid visa stamp. Depending on the visa classification, such documents may include an original I-797 Approval Notice, an endorsed Form I-129S, an employment authorization document (EAD) card, or a Form I-20, among others. Upon entry to the U.S., the U.S. Customs and Border Protection (CBP) inspecting officer should create an electronic I-94 record and stamp the passport, annotating it with the class and duration of admission. Before leaving the CBP inspection area, foreign nationals should verify that the admission classification and expiration date stamped in the passport are correct, and immediately alert the CBP officer to any errors. After each entry to the U.S., foreign nationals should access and review their electronic I-94 record at the CBP website.  Expiration dates for the I-94, underlying petition, or work permit may be different from the expiration date for the visa stamp permitting entry from outside the U.S.

Employment Verification: For foreign national employees who are applying for a temporary work visa, most Consulates require current employment verification letters from employers. Foreign nationals are encouraged to request these letters well in advance of travel to allow adequate time for human resources or Immigration Counsel to prepare letters. Employees are also encouraged to maintain copies of recent paystubs as evidence of current employment.

Advance Parole: Certain individuals with pending I-485  Adjustment of Status applications must have a valid original Advance Parole travel document issued and in-hand prior to departing the U.S. Departing the U.S. without this document may result in the abandonment and denial of the I-485 application. There may be limited exceptions for employees with valid H or L visas.

Law Enforcement: Failure to maintain valid immigration status and violations of local and/or federal law may have significant immigration consequences.  Foreign nationals who have been arrested or detained by law enforcement (even if not charged/convicted) for any reason should consult with immigration counsel before departing the U.S. or applying for a visa or any other immigration benefit.  Citations, arrests or detentions by law enforcement, even if not charged or convicted of a crime, may need to be disclosed on applications and may impact immigration status and/or eligibility for immigration benefits. In some cases, DOS may “prudentially” revoke otherwise valid visas if it learns of an arrest by law enforcement, even if the individual has not had a hearing or has not been convicted, requiring the individual to apply for a new visa once he/she departs the U.S.   Pursuant to enhanced security vetting measures, there has been increased scrutiny of violations of law by immigrants, and immigration officials have wide discretion in denying immigration benefits and refusing entry to the U.S.  Foreign nationals should seek advice of legal counsel to review the potential impact of security checks and criminal issues well in advance of travel, and in particular, to be aware of the DOS policy on visa revocations for non-immigrants with DUI-related charges.

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

This alert contains general information only, and is not intended to provide legal advice.  Please contact immigration counsel for specific legal advice regarding your case.

October 24, 2018

FY2020 Diversity Visa Lottery Open Until November 6, 2018

What is the Diversity Visa Lottery?

The Diversity Immigrant Visa Program provides up to 50,000 immigrant visas (green cards) for issuance in Fiscal Year 2020 to persons from countries with low immigration rates to the United States. Foreign nationals are selected for eligibility to apply for U.S. Lawful Permanent Resident (LPR) status under this program on the basis of a lottery.

When can I apply?

The U.S. Department of State is currently accepting applications online for the FY2020 Diversity Lottery until Tuesday, November 6, 2018 at 12 PM Eastern Daylight Time (EDT) (GMT-5). DV-2020 applicants are encouraged to apply as soon as possible and should keep their confirmation number until at least September 30, 2020. There is no cost to submit an application to enter the Diversity Visa (DV) Lottery.

Who is eligible?

In order to enter the DV Lottery, an individual must have been born in an eligible country and must meet minimum education/work requirements. Notably, natives of the following countries are NOT eligible to apply: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Peru, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.

Eligible nationality is generally determined by the location of a person’s birth. However, if a foreign national is ineligible to apply based on his/her country of birth, there are two alternate ways to qualify. First, a foreign national whose spouse was born in a eligible country may apply provided that both the individual and the spouse are named on the selected entry, are found eligible, and enter the U.S. simultaneously. Second, a foreign national who was born in a country whose natives are ineligible to apply may be eligible to apply if neither parent was born in or legally resided in that country at the time of the foreign national’s birth.

In addition to meeting the nationality requirement, in order to enter the DV Lottery, a foreign national must have either a high school education or its equivalent, or at least two years of work experience within the past five years in an occupation requiring at least two years training or experience.

How do I Apply?

DV Lottery entries may only be submitted electronically at the U.S. Department of State’s Diversity Visa Lottery website. Applicants may only submit ONE lottery entry; individuals who attempt to submit more than one application will be disqualified. A DV Lottery application must be accompanied by digital photographs of the applicant, the applicant’s spouse and the applicant’s dependent children (as applicable), taken in accordance with requirements set forth on the U.S. Department of State’s website. Note: Each individual may submit his/her own application if he/she otherwise qualifies.

How does the Selection Process Work?

DV Lottery winners are selected via a random computerized process. After entering the lottery, it is critical to safeguard the confirmation page as it contains information that is needed to check the status of the application. Starting May 7, 2019 (and through at least September 30, 2020), applicants may check application status using their confirmation number on the Entry Status Check section of the E-DV website. Lottery winners will not receive correspondence in the mail regarding applications; the status of the application can only be checked through the E-DV website.

Selection in the DV Lottery does not automatically confer U.S. Lawful Permanent Resident (LPR) status – only the opportunity to apply for permanent resident status. Applications for permanent resident status can be lodged in one of two ways: by filing an adjustment of status application if lawfully present in the U.S. or by filing an application for an immigrant visa at a U.S. Consulate abroad. The actual application for permanent resident status must be filed and approved by September 30, 2020; if an application is not approved by that date, the application is invalidated.  Note that more individuals are selected in the DV Lottery than there are immigrant visas/green cards made available. As a result, some individuals who are selected in the DV Lottery may ultimately be unable to become U.S. LPRs if the available immigrant visas are allocated prior to approval of the individual’s permanent resident application.

Where Can I Get More Information?

Instructions regarding how to apply for the FY2020 Diversity Visa Lottery may be obtained from the U.S. Department of State’s PDF instructions and the U.S. Department of State’s website

For more information or specific legal advice, please contact your designated Gibney representative or email info@gibney.com.

October 22, 2018

NAFTA Immigration Provisions Retained in Renegotiated Trade Agreement

The United States, Mexico and Canada reached an agreement on September 30, 2018 as part the renegotiation of the North American Free Trade Agreement (NAFTA). The new agreement – the United States-Mexico-Canada Agreement (USMCA) – retains key immigration benefits of NAFTA, including provisions allowing for the temporary entry without quotas of Business Visitors, Traders and Investors, Intracompany Transferees, and Professionals. With respect to Professional workers, USMCA retains all of the occupations previously designated as eligible for the NAFTA “TN” visa though the new agreement does not add any additional occupations.

From an immigration perspective, the USMCA represents a repackaging of NAFTA. Congress is expected to approve the USMCA after the mid-term elections in November 2018.

Gibney will monitor implementation of the new agreement and provide ongoing guidance with respect to any procedural changes related to the admission of business persons under the USMCA.

October 9, 2018

Brian Brokate and Maja Szumarska Co-author Chapter on Anticounterfeiting Enforcement

Brian Brokate and and Maja Szumarska co-authored a chapter in PLI’s course handbook for the program Intellectual Property Law Institute 2018 on October 9, 2018. This program provides a complete analysis of key events in all areas of IP, including updates on cases, legislation and government agency developments that all IP lawyers need to know.

Their chapter is titled “Developing Trends in Enforcement and Remedies: What’s New in Civil, Criminal and Government Actions.”

For more information or to register for the event, visit the PLI website.

October 2, 2018

USCIS to Implement Notice to Appear Policy Memo

Starting October 1, 2018, the United States Citizenship and Immigration Service (USCIS) will begin implementing its June 28, 2018 policy memorandum, Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (NTA Policy Memo).

According to its announcement on September 26, 2018, USCIS will implement the NTA Policy Memo on an incremental basis. Pursuant to the policy, USCIS may issue a Notice to Appear (NTA) to a foreign national whose Form I-485, Application to Register Permanent Residence or Adjust Status, or Form I-539, Application to Extend/Change Nonimmigrant Status, is denied, where the foreign national applicant does not have valid underlying immigration status. The policy will apply to I-485 and I-539 applications filed prior to the October 1, 2018 implementation date, as well as applications filed on or after that date. By way of background, an NTA is a charging document issued to a foreign national that initiates removal proceedings, requiring the individual to appear before an immigration judge to determine whether he/she should be removed from the United States.

USCIS stated that, at this time, it will not apply the NTA Policy Memo to employment-based petitions (e.g., Form I-129, Petition for Nonimmigrant Worker) and humanitarian applications, but it is expected to do so at a future date. USCIS did not provide a timeline for expanding the policy to other petitions and applications.

Gibney is working with clients to evaluate the impact of this new policy and how it is being implemented. We will provide updates as they become available.

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

September 30, 2018

Cap-Subject H-1Bs Approved for Fiscal Year 2019 Take Effect October 1

H-1B cap-subject visa petitions filed and approved by U.S. Citizenship and Immigration Services (USCIS) for Fiscal Year 2019 take effect October 1, 2018.

Change of Status Filings

Approved H-1B cap-subject petitions filed as “change of status” automatically take effect on October 1, 2018, if the beneficiary:

  • was physically present in the U.S. for the entire period from the date the petition was received through the date the application was approved; and,
  • is physically present in the U.S. on October 1, 2018 for the change of status to take effect.
  • With the exception of Canadian citizens, beneficiaries of approved H-1B cap petitions who depart the U.S. will need a valid H-1B visa to return to the U.S. in H-1B status. U.S. consulates require a personal interview to apply for a visa, and many consulates have a wait period of several weeks to schedule an interview. Actual visa processing times vary by consulate and can be found at the U.S. Department of State website. All intending visa applicants are advised to check the website of the consulate where they intend to apply for information on scheduling the interview and the visa application process.

Consular Notification Filings

Approved H-1B cap-subject petitions filed as “consular notification” will not automatically change the beneficiary’s status to H-1B without further action. To activate H-1B status for an approved consular notification petition, the beneficiary must depart the U.S. if not already abroad, obtain an H-1B visa at a U.S. consulate, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S. Canadian citizens do not require a visa, but do need to activate a “consular notification” petition through a Port of Entry into the U.S.

Next Steps for Employers

  • Form I-9 Reverification: Employers may need to update the employment eligibility under Section 3 of Form I-9 for H-1B cap beneficiaries whose I-9 documents are expiring.
  • Taxes for F-1 and J-1 Non-Immigrants: F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, once F-1 or J-1 foreign nationals change to H-1B status, they are no longer exempt and withholdings will need to be adjusted.
  • Pending H-1B Petitions: There are numerous H-1B cap petitions still pending and USCIS has stated that approval in October is not guaranteed. As such, employers need to be aware of foreign nationals who have work authorization ending prior to H-1B approval, and must specifically monitor the employment of F-1 “cap gap” students, as these individuals may need to come off payroll and/or take additional steps to maintain their valid immigration status as of October 1, 2018. See the recent USCIS statement here.