Tag: Immigration

As an update to the recent alert “Government Shutdown Impacts Immigration Related Services” on January 23rd, 2018, the U.S. Congress passed a short-term spending bill to fund the government through February 8th, 2018. All government services, including immigration services which were temporarily suspended during the shutdown, have now resumed. At this time, it is unclear whether the government will face a similar shutdown in February, which would again affect immigration services.

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

The failure of Congress to reach an agreement regarding the federal budget resulted in a government shutdown effective January 20, 2018 at 12:01 AM. The shutdown is expected to impact immigration related services provided by the U.S. Department of Labor (DOL), U.S. Citizenship and Immigration Services (USCIS), U.S. Customs and Border Protection (CBP) and the U.S. Department of State (DOS).

U.S. Department of Labor
DOL will not process, nor accept for processing, Labor Condition Applications (required for H-1B, H-1B1 and E-3 visa applications), Prevailing Wage Requests, and PERM labor certification applications. Additionally, DOL will not adjudicate applications or PERM audit responses filed prior to the shutdown. When the last government shutdown resolved in 2013, DOL did make provisions to allow for the late filing of PERM applications with expired recruitment and PERM audit responses that were not filed due to the shutdown.

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. However, the DOL shutdown discussed above will impede the filing of visa petitions that require a certified Labor Condition Application as a precondition for filing, including H-1Bs, H-1B1s, and E-3s as referenced above. USCIS has not yet announced whether it will accept H-1B, H-1B1, and E-3 extension of status petitions if such petitions are filed without a certified LCA.

In contrast, USCIS E-Verify service is suspended. During the shutdown, 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 non-confirmations (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. Customs and Border Protection
CBP personnel, responsible for inspection and law enforcement at U.S. ports of entry, are considered “essential personnel” and U.S. borders and Preflight Inspections (PFI) areas 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, petitions that are adjudicated by CBP officers at the border and PFI areas, including TN applications and L-1 petitions for Canadian citizens, could be impacted by the shutdown if such functions are deemed nonessential.

U.S. Department of State
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. Foreign nationals intending to apply for a visa at a U.S. Consulate abroad or intending to travel outside the U.S. without a valid visa in their passport should consult with immigration counsel prior to making definitive plans.

Other Functions Impacted
Employers and foreign nationals should note that the Social Security Administration (SSA), while open, will not accept or process applications for social security numbers. This will impact foreign nationals who require a social security number to be placed on payroll, obtain a driver’s license, and/or open bank accounts.

The situation posed by the federal government shutdown remains fluid, and the impact on immigration related services may change the longer the shutdown persists. Gibney will be closely monitoring the situation and we will provide updates as needed. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

Monday, April 2, 2018 marks the first day U.S. Citizenship and Immigration Services (USCIS) will accept H-1B petitions subject to the annual cap for the Fiscal Year (FY) 2019, which begins October 1, 2018. Preparation for H-1B cap season starts much earlier, with the identification of prospective beneficiaries and gathering of supporting documentation. With increasing demand for H-1B workers, we encourage employers to identify potential H-1B cap cases now and work with immigration counsel to ensure timely filing of cases.

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.

On December 4, 2017, the Supreme Court granted the Administration’s request to stay preliminary injunctions which had temporarily blocked the Administration’s travel ban from taking effect. With this decision, the Supreme Court allowed the travel ban to go into effect while legal challenges against it continue. The Supreme Court urged the lower appeals courts to render decisions quickly on the legality of the ban. In the interim, the Administration may fully enforce the ban.

The Administration’s travel ban, set forth in a Proclamation issued in September 2017, announced various restrictions on nonimmigrant and immigrant entry for certain foreign nationals who are citizens or nationals of eight countries: North Korea, Venezuela, Chad, Syria, Iran, Somalia, Libya, and Yemen. The Administration previously issued travel restrictions through Executive Orders in January and March for certain nationals of six Muslim-majority countries, which have been challenged in Federal Court. The new Proclamation removes Sudan from the list of previously targeted counties, and imposes new travel limits for nationals of North Korea, Venezuela, and Chad. Case-by-case waivers and exemptions may be granted if appropriate in very limited circumstances.

For more information on country specific restrictions, visit the Bureau of Consular Affairs site and the Department of Homeland Security FAQs. Please consult with immigration counsel for legal advice.

Gibney will continue to monitor events and how these new guidelines will be implemented at the border and at Consulates abroad. For additional information, please visit Gibney’s Immigration Advisory and FAQs. If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.