Tag: Immigration Updates & FAQs

On May 17, 2019, United States Citizenship and Immigration Services (USCIS) announced that the agency completed data entry for the H-1B cap-subject petitions filed during the Fiscal Year (FY) 2020 filing period (April 1 to April 5, 2019).  USCIS will now begin returning all H-1B cap-subject petitions that were not selected and will issue an announcement once notification of rejections has been completed. USCIS has indicated it cannot provide a definite time frame for returning unselected petitions given the large volume of submissions.

What Employers Can Expect

Employers may expect to continue to receive receipts for selected cases over the next few weeks. Petitions that are not selected under the FY 2020 cap will be rejected by USCIS and returned with the government filing fees.   USCIS also advised that it  may transfer some H-1B cap-subject petitions between the Vermont Service Center and the California Service Center to balance case processing workloads and enhance efficiencies. If an H-1B cap case is selected and transferred to a different USCIS Service Center, USCIS will send notification of the transfer in the mail.

Premium Processing Service Availability Reminder

As previously announced, USCIS will take a two-tiered approach to implementing premium processing service for cap-subject H-1B petitions where the petitioner requests premium processing service on Form I-907.  For H-1B cap petitions filed with a change of status request , USCIS will notify the public as to the precise date that premium processing service for these petitions will commence (expected not later than May 20, 2019).  For H-1B cap petitions filed with a request for consular notification of approval,  USCIS has indicated that premium processing service for these petitions will not be available until at least June 2019.

Petitions Not Subject to the H-1B Cap

As a reminder, USCIS will continue to accept and process H-1B petitions that are not subject to the cap.  These include filings for extensions of status, amended petitions, changes of employer, concurrent employment for existing H-1B workers, and petitions filed by organizations that are cap-exempt.

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

On April 11, 2019, United States Citizenship and Immigration Services (USCIS) confirmed that the agency received 201,011 H-1B cap-subject petitions during the Fiscal Year (FY) 2020 filing period (April 1 to April 5, 2019). USCIS also announced that it conducted the random selection process for both the regular H-1B cap of 65,000 petitions, and the U.S. advanced degree H-1B cap of 20,000 petitions.

What Employers Can Expect

Employers may expect to receive receipts for selected cases over the next several weeks. USCIS will also announce when it will start Premium Processing for selected petitions (expected no later than May 20, 2019). If an H-1B cap-subject petition is not selected by the USCIS, the agency will reject and return all unselected petitions with the filing fees.

Petitions Not Subject to the H-1B Cap

USCIS will continue to accept and process H-1B petitions that are not subject to the cap. These include filings for extensions of status, amended petitions, changes of employer, concurrent employment for existing H-1B workers, and petitions filed by organizations that are cap-exempt.

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.

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.

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.

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.

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.

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.

Effective October 1, 2018, the Department of Homeland Security (DHS) is increasing the Form I-907 premium processing fee from $1,225 to $1,410. All applications postmarked on or after that date must include the new fee. As a reminder, premium processing is available for certain immigration petitions filed on Forms I-129 and I-140. With the payment of the premium processing fee and the filing of the I-907, the U.S. Citizenship and Immigration Services (USCIS) will process a petition within 15 calendar days or refund the amount. Note: Adjudication may result in an approval, a denial or a request for more evidence.

On August 28, 2018, USCIS announced that it would extend and expand the suspension of Premium Processing for certain H-1B petitions for a period estimated through at least February 19, 2019.

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