USCIS Resumes H-1B Premium Processing: 2018 Filings

Recently the United States Citizenship and Immigration Service (USCIS) announced that the service would resume premium processing on February 19thfor those regular pool H-1B petitions filed on or before December 21stof 2018. This announcement follows an earlier resumption of premium processing for fiscal year 2019 masters-cap petitions.

Those petitioners who have received a transfer notice must request premium processing through the service center where the petition is pending along with a copy of the transfer notice, or Form I-797. If the premium processing and transfer notice are not filed concurrently, there could be potential delays to the beginning of the 15-day processing time. If a premium processing request is sent to the wrong center, USCIS will forward the request to the correct service center, however, the premium processing deadline will not begin until the request reaches the appropriate service center. USCIS will not refund the premium processing fee until 15 days after the request has reached the service center that possesses the appropriate petition. Additionally, those who have received a request for evidence for an application pending from submission on or before December 21stof 2018, should include the request for evidence response along with the premium processing request. As the fiscal year 2020 filing season begins, USCIS is making efforts to clear a backlog of pending application made in 2018. USCIS notes that it will announce when other classes of petitions regain access to premium processing.

Revised Form I-539 (H-4, L-2, F-2, B-1, B-2, etc.) Available March 11th

United States Citizenship and Immigration Service (USCIS) announced new changes to the Form I-539, Application to Extend/ Change Nonimmigrant Status. On the cusp of the H-1B filing season, this new change will swiftly alter form requirements for several visa petitions, including the dependents of H-1B visa holders.

Change to Form

On March 11, 2019 and beyond, all filed Form I-539 documents must reflect changes made in February, less than 30 days from the roll out. Those who submit older versions of the Form I-539, without a revision notation of 2/04/19, will receive a rejection. The new form includes requirements that every applicant and co-applicant pay a $85 biometrics fee. This requirement extends to all children, regardless of age (e.g. H-4 dependents, L-2 dependents, F-2 dependents). The change comes without a grace period nor a 90-day period for public comment.

Those dependents must sign and submit a separate Form I-539A, available on the USCIS website on March 11. The Supplement A form will no longer be available, and each individual dependent or co-dependent will submit a separate form. Parents or guardians may sign forms for those under the age of 14 or for any co-applicant who is not mentally competent to sign. All applicants and co-applicants must pay the $85 biometrics fee unless included in the exemptions to be listed on the USCIS website come March 11th. USCIS notes that “Every applicant and co-applicant will receive a biometric services appointment notice, regardless of age, containing their individual receipt number.” These non-immigrant applications will now require these applicants and co-applicants to complete biometric screenings.

H-1B Lottery Goes Electronic: FY 2021

On January 30th, the Department of Homeland Security released a final rule and amendment to H-1B petition regulations for those petitions subject to the H-1B cap. The new regulation requires petitioners filing H-1B visa petitions subject to both the regular cap and advance degree exemption to first electronically register with the United States Citizenship and Immigration Services (USCIS). The change will not impact Fiscal Year 2020 filings, set to begin in April of this year. DHS has suspended the requirement until further testing of the new filing system is complete. For those petitioning in the coming weeks, this filing season may be the last time that petitioners must pay filing fees and submit a complete application before consideration for the lottery. While some of the changes will benefit petitioner’s financially, other amendments may impact the chances for some H-1B beneficiaries.

Amendment

The final rule reverses the order by which H-1B petitions are selected for the lottery. The rule notes that the electronic system will first select petition “onbehalf of all beneficiaries, including those eligible for the advanced degree exemption.” The second round of selections, of 20,000 electronic petitions, would then be for those H-1B petitions eligible for the advanced degree exemption. DHS hopes that “[c]hanging the order in which USCIS counts these separate allocations will …increase the number of beneficiaries with a master’s or higher degree from a U.S. institution of higher education…” Besides a change in the order of selection, the new H-1B lottery selection process will be completely electronic. Thus, petitioners would pre-register for the lottery and only complete further documentation (e.g. the Labor Condition Application & Form I-129) if selected through the electronic pre-registration system.

Impact

While the new electronic filing system will disadvantage beneficiaries who do not qualify for the advanced degree exemption, the new filing system will save petitioners millions of dollars a year. The final rule will also attempt to curb the practice of “flooding” the lottery. The regulation prohibits petitioners from submitting more than one electronic registration for the same beneficiary during the same filing season. Therefore, those petitioners that submit more than one petition per beneficiary will invalidate all petitions filed on behalf of the beneficiary. While the final rule will not impact filings in April, the total impact of the changes to the Fiscal Year 2021 filing season will not be felt until 2020.

USCIS Introduces Online Fee Calculator

Regardless of the visa application, calculating total fees for filings can be a hassle. But what many don’t realize is that an improperly calculated fee payment would result in rejection of the complete application thereby leading to a longer application process. This tedious process has left many with rejected applications due to citing and submitting the incorrect or incomplete total filing fee. To amend this, USCIS now offers a free Online Fee Calculator to assist those filing their forms through a USCIS agency lockbox facility.

Calculating Fees

From the Immigrant Petition for Aliens Worker (Form I-140) to Applications for Naturalization (Form N-400), applications and petitions for citizenship and immigration benefits require payments to fund processing costs. While a significant sum, these fees enable USCIS to operate as the service almost entirely relies on application and petition fees. Often these fees change to adjust to changing processing costs and inflation. Through the new online calculator, applicants and petitioners can find out the exact filing and biometric fees required for their particular application. The Online Fee Calculator is up to date, and reflects any recent adjustments to fees. The online calculator matches up-to-date filing fees with the forms selected by the drop down menu found on the website. By selecting your form, the fee calculator will either present you with a flat fee rate, or if you filing fee varies, prompt additional information to determine your category or age group. Those who wish to file concurrent forms can multiple form calculations to receive a total filing amount. However, the tool does not currently offer a feature to calculate fees for multiple individuals. Once users have responded to the questionnaire, the Online Fee Calculator will include biometric fees, if necessary, as well as the total fee amount. This total represents the amount that should be filed with applications and petitions submitted to USCIS.

Improper Fees

Each year, USCIS processes millions of applications and petitions. Those which require fees are sometimes submitted with out-of-date and incorrect payments. Those applications are automatically rejected. For those filing at Lockbox facilities, checks, money orders, and credit card payments for applications may include the incorrect fee total. With the new Online Fee Calculator, applicants can rest assured that their fee payment is up-to-date to avoid rejections.

USCIS Resume Premium Processing: FY19 H-1B

On September 11, 2018, the United States Citizenship and Immigration Service (USCIS) further suspended premium processing for cap-subject H-1B petitions while expanding the premium processing suspension for additional H-1B petitions. Last year’s suspension was set to expand well into February. However, USCIS has announced that the Service will continue premium processing on January 28th for all fiscal year 2019 H-1B cap petitions. For petitioners, the lifted suspension will hopefully end a long period of delay.

Premium Processing

The Premium Processing request allows for petitioners to file for expedited processing of an H-1B visa. If approved, those petitioners who pay the premium processing fee are guaranteed a 15-day processing time. If the petitioner does not receive an adjudication within 15 days, USCIS refunds the premium processing fee of $1,410. The fee increased late last year by nearly $200 to adjust to the consumer price index.

Reason for Suspension

USCIS suspended premium processing in March of 2018 to adjust for the busy filing time. However, this left many forced to endure long wait times. Set to end in September of 2018, the suspension was again expanded into early this year. With over 200,000 applications for premium processing each year, USCIS often is unable to provide the expedited service.

Eligible Applications

By lifting the suspension on premium processing for FY19 filings, USCIS has now allowed those eligible for advanced degree exemptions (the master’s cap), to file for premium processing. Those who received requests for evidence (RFE) for a FY19 cap petition may submit their premium processing request with their RFE response. USCIS has yet to announce premium processing availability for other categories of H-1B petitions.

E-Verify During the Shutdown (Government Shutdown Continues)

Message to Users 

While many sections of the federal government remain operational, including the United States Citizenship and Immigration Service (USCIS), other offices remain unopened. As previously reported, entire visa programs, like the Immigrant Investor Visa (EB-5) and Deferred Action for Childhood Arrivals, are at risk of discontinuation. Besides programmatic immigration issues, several maintenance services are unavailable for employers and visa holders. In particular, the E-Verify website, and its included services, have been inaccessible since December 21stof 2018. 

In an official statement, the online employment authorization webservice notes; “Due to the lapse in federal funding, this website will not be actively managed. This website was last updated on December 21, 2018 and will not be updated until after funding is enacted.” To offer further guidance, the website provides a longform explanation of discontinued services. 

Impact

For employers, the shutdown restricts access to E-Verify enrollment, delaying access to vital employee information. Additionally, basic employer operations that utilize E-Verify, especially human resource operations involving foreign national employees, are suspended during the shutdown. To limit long-term issues, the “three-day rule,” which dictates that E-Verify cases must be created within the first three paid days of employment, is suspended for those cases impacted by the shutdown. However, I-9’s must be completed under the “three-day rule” while the government is shut down. Once the government reopens, E-Verify will provide guidance to employers to facilitate the appropriate procedures for creating new cases. Employers are explicitly instructed “not to take adverse action” against those employees impacted by the lapse in E-Verify. 

TNCs

During the shutdown, employees will not be able to resolve TNCs, or Tentative Nonconfirmation of information within the E-Verify employment authorization system. TNCs result when the information filed via E-Verify does not match data available to the Department of Homeland Security or the Social Security Administration. Deadlines to resolve TNCs will be extended by duration of the shutdown. Further guidance regarding TNC resolution deadlines will be made available at the end of the shutdown. 

Government Shutdown: EB-5 Program & Immigration Agencies

In the absence of congressional authorization, the EB-5 foreign investors visa program was set to end on December 21st of 2018. However, following the government shutdown that began on December 20th of 2018 and continues into the 2019, the United States Citizenship and Immigration Service (USCIS) announced that the future of the EB-5 program will remain pending until funding legislation passes in Congress. However, the shutdown will not drastically impact other application processes for visa benefits.

Impact on EB-5 Applications Prior to December 21st

USCIS notes that any Form I-924, Application for Regional Center Designation Under the Immigrant Investor Program, will not be accepted as of December 21st. Those Form I-924 applications still pending will remain on hold until funding is either allocated or denied to the EB-5 program. USCIS notes that it will continue to accept regional center-affiliated Form I-526s,  Immigrant Petition by Alien Entrepreneur, and Forms I-485, Application to Register Permanent Residence or Adjust Status submitted before close of business on December 22nd. However, the aforementioned applications will remain on hold until the end of the government shutdown.

Additional Visas Impacted

As reported during the last government shutdown, most vital functions of the United States government will continue while the government is shutdown. In particular, the US Customs and Border Patrol (CBP) will continue to function at ports of entry. Therefore, foreign nationals need not cancel travel plans abroad during the shutdown. The US Citizenship and Immigration Service (USCIS) will additionally remain open during the shutdown. Thus, any applications or petitions that include fee processing, will continue to be processed through the shutdown (e.g. adjustment of status, etc.). Visa processing services provided by US consulates, and managed by the Department of State, will also continue while the government is shutdown. The Department of Labor, which received funding in September of 2018, will continue Labor Condition Application processing. Although these essential government agencies will remain open during the shutdown, it is unclear when the shutdown will end, and whether programs like the EB-5 visa program, will continue into 2019.

DHS Proposed Rule: New Changes to Public Charge Inadmissibility

The Department of Homeland Security (DHS) has released a new proposed rule which would outline the ways in which the agency determines a foreign national is inadmissible due to risk of becoming a public charge. Foreign nationals who wish to enter the U.S. or adjust their immigration status must provide evidence of financial stability, and establish that they will not become a ‘public charge,’ or dependent on government assistance, during their stay. Public charge inadmissibility does not, however, currently apply to naturalization proceedings or other protected classes of nonimmigrants. The new proposal seeks to require foreign nationals seeking extensions of status or adjustment of status “to demonstrate that they have not received, are not currently receiving, nor are likely to receive, public benefits.” The new proposal seeks to more clearly define the term ‘public charge’ for the purpose of determining admissibility.

Major Changes

The proposed rule would change current standards for determining admissibility due to the risk of becoming a future public charge. Additionally, DHS would define the types of public benefits that make a foreign national subject to public charge inadmissibility while including a designated threshold of benefits allowed for all nonimmigrants receiving such benefits. DHS also seeks to make it more difficult for current foreign national public charges to gain approval for a change of status or extension of stay application. The rule would apply to all individuals seeking to adjust their status to that of a lawful permanent resident. However, USCIS notes that “lawful permanent residents who subsequently apply for naturalization would not be subject to inadmissibility determinations, including a public charge inadmissibility determination.”  

Those seeking entrance as refugees, asylees, Afghans and Iraqis with special immigrant visas, nonimmigrant trafficking and crime victims, individuals applying under the Violence Against Women Act, and special immigrant juveniles would be excluded from inadmissibility based on likelihood of public charge. Those applicants with “financial assets, resources, and support of at least 250 percent of the Federal Poverty Guidelines” or those applicants with an income larger than 250 percent of the Federal Poverty Guidelines, are more likely to be excluded from inadmissibility on the ground of public charge status.

H-1B Pre-Registration: USCIS Proposed Rule

The speculation about drastic changes to the H-1B registration process has come to fruition with the new proposed rule out of the Department of Homeland Security. The amendment to the current H-1B specialty occupation visa program would require petitioners to electronically register with the United States Citizenship and Immigration Service (USCIS) prior to start of the H-1B lottery each year. USCIS would open the online registration process two weeks before the beginning of the filing period for the new fiscal year. This change would eliminate the requirement for employers to complete paper cap-subject applications during the first week of April.

Major Changes

  1. Shortened Application: Petitioning employers would be required to electronically register each beneficiary they wish to sponsor through the H-1B visa program. However, only those registrations selected by USCIS will be required to produce a completed H-1B cap subject petition, including the DOL Labor Condition Application and the long form petition for nonimmigrant worker, or Form I-129.
  2. Reversed Selection Process: The new proposed process would reverse the H-1B selection process. USCIS would begin the filing season by first selecting H-1B regular cap applications, including those registrations eligible for the H-1B advanced degree cap exemption. Then, USCIS will select the 20,000 cap-exempt advanced degree petitions. 

 Analysis

In the proposed rule, DHS intends the change in the registration process to produce more H-1B petitions that are selected for beneficiaries for master’s degree or higher degrees. Specifically, DHS estimates that the change will increase the number of master’s degree or higher beneficiaries, with degrees from U.S. institutions, by 16 percent annually. In addition to an increase in the number of H-1B beneficiaries with higher degrees, DHS intends to waive the initial fees for pre-registration in order to save administration costs. DHS estimates that the change would save petitioners a range from $47.3 million to $75.5 million in filing fees. In addition, USCIS would save $1.6 million in processing costs.

Although these savings are attractive, some employers may experience difficulties employing foreign nationals with bachelor degrees or degrees from outside the U.S.. While it is uncertain if the new rule will apply to the 2019 filing season, the proposed rule is open for public comment until January 2ndof 2019.

USCIS Lawsuit: H-1B Visa Duration

A recent lawsuit filed in the U.S. District Court for the District of Columbia, ITServe Alliance v. USCIS, aims to limit the discretionary powers of the United States Customs and Immigration Service (USCIS) in limiting the approved duration of H-1B visas. ITServe Alliance, the largest association of information technology “IT” Services, Staffing, Consulting organizations, filed the lawsuit in hopes to change the ways in which USCIS processes and adjudicates H-1B visas.

Background

The lawsuit comes in response to continued employer dissatisfaction over the processing and approval of H-1B visa petitions. The plaintiff, ITServe Alliance, represents one of the largest populations of employers for the highly skilled immigrant work program, the IT sector. Like many other companies, members of the ITServe Alliance must compile an extraordinary quantity of documentation in order to file an H-1B petition. Besides the lengthy application process, employers like those ITServe Alliance are unduly burdened by the costs associated with H-1B petition filings. Regardless of this burden, USCIS may slash the duration of the H-1B visa below the three-year minimum based solely on an adjudicator’s discretion. In response, ITServe Alliance has filed a lawsuit claiming that USCIS lacks the written authority to reduce the duration of an H-1B visa below the three-year minimum.

Lawsuit

ITServe Alliance has asked a district judge to rule whether USCIS is within its administrative powers, outlined by the Administrative Procedure Act, to “exercise discretion and approve H-1B visas for any duration it deems supported by the employer’s evidence.” ITServe Alliance claims that USCIS carries no legal power to limit H-1B visa to durations less than three years. In exercising this administrative power, USCIS has, at times, approved visas for a period only of a few days. Consequently, firms have received approval notices afterthe H-1B visa has expired. Besides these abnormal cases, USCIS’s discretionary power to limit the duration of H-1B visas has left many employers hesitant to file new petitions. Although it is uncertain whether USCIS will change its administrative behavior in the near future, we will continue to keep readers updated on any changes.