C&R Archives

August 2019 Visa Bulletin Retrogression

Effective August 1, the availability of employment-based visa numbers experienced significant setbacks across the board.  Among the most notable developments are the following:

Visa numbers will no longer be current in the Worldwide EB-2 and EB-3 categories.  Instead, cut-off dates will be established.

The EB-2 category will have a cut-off date of January 1, 2017 and the EB-3 category will have a cut-off date of July 1, 2016.  The EB-1 category has also regressed further, to July 1, 2016.

While I-140 Immigrant Visa Petitions seeking to qualify in one of these categories can continue to be filed, only applicants who have established a “Priority Date” * prior to the cut-off date can file an Adjustment of Status (I-485) application and obtain the associated benefits of an Employment Authorization and Advance Parole document.

Applicants in these categories chargeable to the Worldwide quota who have a Priority Date after the cut-off date who are otherwise eligible must file their I-485 during the month of July 2019, or face waiting until their date is again reached.

Applicants considering filing a concurrent EB-2 Visa Petition and Adjustment of Status application based, for example, on a National Interest Waiver, also must do so during this month to avoid an indeterminate delay before the numbers again become current.  It is impossible to predict when this will happen.

Applicants born in China, India and other countries which already had established cut-off dates in these categories saw some further regression in several of the categories.

The August Visa Bulletin may be viewed on the Department of State website at www.travel.state.gov.

Please contact our office if you have any questions.

*a Priority Date is established by the filing of a PERM Labor Certification Application which is eventually approved, or the filing of an I-140 Immigrant Visa Petition in those cases where a Labor Certification is not required.


USCIS Announces Two Important Developments

First, effective immediately, Premium Processing is available for all types of H-1B Petitions including, unless there is another revision, Petitions that will be filed in the H-1B Lottery beginning on April 1, 2019.  When an H-1B petitioner properly requests the agency’s premium processing service, USCIS guarantees a 15-day processing time. If they do not adjudicate the Petition within 15‑calendar days, USCIS will refund the $1,410 fee and continue with expedited processing of the Petition.

Premium Processing may be requested for pending cases by filing Form I-907 with fee to the Service Center processing the Petition.

Second, USCIS has introduced a new, expanded Form I-539 (Application to Extend or Change Nonimmigrant Status).  The new Form is optional now but mandatory effective March 22, 2019. The new Form will require all applicants to have their biometrics (i.e. fingerprints) taken at an appointment to be scheduled by USCIS after the application is filed. Unfortunately, this is likely to delay the processing of these cases.

As always, please contact us if you have any questions.


USCIS Proposes Changes to H-1B Filing Procedure


On November 30, 2018 USCIS announced a proposal to change the way cap-subject H-1B Petitions are filed.

Until now, cap-subject H-1B Petitions could be filed after April 1 requesting a start date of October 1 for the upcoming fiscal year. Because the demand for numbers has far exceeded the available allocation during the past few years, it has been imperative for employers to file Petitions in the first few days of April.  Then, Petitions were selected for consideration in a random selection process.  Those not selected were returned to the Petitioner, along with the filing fees.

USCIS is now proposing that Petitioners electronically register proposed H-1B cases during a designated registration period.  This period would begin at least 14 days before April 1 and would remain open for at least 14 days.  There would be at least 30 days advance notice of the upcoming registration period.

The information required from the Petitioner and the prospective employee to register might include the following:

  • The employer’s name, identification number (EIN), and address;
  • the employer’s authorized representative’s name, job title, and contact information;
  • the beneficiary’s name, date of birth, country of birth, country of citizenship, gender, and passport number, as well as whether the beneficiary has obtained a master’s or higher degree from a U.S. institution of higher education;
  • the employer’s attorney or accredited representative, if applicable; and
  • any additional basic information requested by the registration system or USCIS.

The random selection process would then take place to choose Petitions for adjudication.  The selection process is designed to favor Petitions for candidates with a U.S. Master’s Degree.  Once selected, Petitioners would have 60 days to file the H-1B Petition.  USCIS will provide details on when and where to file.

USCIS admits that it is very unlikely that the system will be in place for the upcoming H-1B filing “season.”  Therefore, until we learn otherwise, we are advising clients to prepare for the upcoming H-1B season as done in prior years by starting early and preparing a robust and well-documented Petition for April filing.


USCIS Continues and Expands Suspension of Premium Processing for Certain H-1B Petitions

Earlier this year, USCIS suspended the availability of Premium Processing for H-1B Petitions selected in the “H-1B Visa Lottery.”  That suspension was scheduled to end on September 10, 2018.

The Service has now announced that it will continue the suspension of Premium Processing for those cases beyond September 10, 2018, and expands the suspension to include all H-1B petitions except the following:

H-1B Petitions filed by cap-exempt institutions at the California Service Center.

H-1B Petitions filed at the Nebraska Service Center by Petitioners seeking continuation of previously approved H-1B employment without change.

A Premium Processing request filed before September 10 will continue to be honored.  The Service will refund the $1,225 fee if the Petition is not adjudicated within 15 days.

In the absence of Premium Processing, Petitioners can request expedited processing of the petition provided one or more of the following criteria are met.  (Note: our experience is that expedite requests are rarely granted).

Severe financial loss to company or person

Emergency situation

Humanitarian reasons

Nonprofit organization whose request is in furtherance of the cultural and social interests of the United States

Department of Defense or n ational i nterest s ituation (These particular expedite requests must come from an official U.S. government entity and state that delay will be detrimental to the government

USCIS error, or

Compelling interest of USCIS.

The Service anticipates that Premium Processing will not become available again until February,  2019

Please contact our office if you have any questions.


Important Reminder on STEM OPT Reporting Requirements-Update on Calculation of Unlawful Presence

F-1 students working under a grant of STEM OPT must, along with their employers, be aware of important reporting requirements In order to maintain their legal F-1 status. Both the student and the employer must report and verify information to the student’s designated School official (DSO) during the course of the OPT validity period.

The student is required to confirm their record in SEVIS (the Student and Exchange Visitor Information System) every six months with their DSO to confirm that the student’s record accurately reflects their current circumstance.

As part of this six-month reporting, STEM OPT students must confirm that their SEVIS information correctly identifies the following:

  • Legal name.
  • Residential or mailing address.
  • Employer name and address.
  • Status of current employment.

Please note that STEM OPT students must report a change in this information, including any loss of employment, within 10 days of the change.

STEM OPT students must also complete and submit to their DSO an annual self-evaluation describing the progress of the training experience.  The employer must also review the student’s annual self-evaluation and sign it to attest to its accuracy.  This should be completed and submitted to the DSO no later than 10 days beyond first 12 months of the STEM OPT period.  A final evaluation, also prepared by the student and signed by the employer must also be submitted to the DSO within 10 days of completion of the OPT training period.

If the OPT status terminates prior to the 24 month period, a final assessment must also be submitted to the DSO within 10 days of that early termination.  Not submitting a final evaluation would be a violation of the terms of the Form I-983, “Training Plan for STEM OPT Students,” and may jeopardize the student’s nonimmigrant status.

Employers must report the STEM OPT student’s termination of employment or departure to the DSO within five business days.

STEM OPT students must also report to their DSO any material changes to, or material deviations from, the student’s formal training plan.

Material changes or deviations from the original Form I-983 may include, but are not limited to:

  • Any change of the employer’s EIN.
  • Any reduction in student compensation that is not tied to a reduction in hours worked.
  • Any significant decrease in hours per week that a student engages in a STEM training opportunity.
  • Changes to the employer’s commitments or student’s learning objectives as documented on the Form I-983.

So long as the STEM OPT student and employer meet the regulatory requirements and the modified Form I-983 meets the specified requirements, the student’s employment authorization will not cease based on a change to the plan.

When a STEM OPT student changes employers, the new employer must be enrolled in E-Verify before the student begins to work for pay. The student must also submit a new Form I-983 to their DSO within 10 days of starting the new practical training opportunity.  When a student begins a new practical training opportunity with a new employer less than 10 days after leaving the student’s prior employer, the student may fulfill all reporting obligations (loss of employment and new training plan) by submitting a new Form I-983.  Such changes should always be discussed by the student with their DSO before such changes take place.

STEM OPT students must report the termination of their practical training as listed on the I-983 within 10 days of the event.  Students who are granted a 24-month STEM OPT extension are allowed an additional 60 days of unemployment beyond the initial post-completion OPT limit. This means that students who obtain a 24-month STEM OPT extension will receive, for a total of 150 days of allowable unemployment, 90 days during the initial period of post-completion OPT plus an additional 60 days during the extension period.

Effective August 9, 2018, USCIS implemented fundamental changes to its policy on how an immigration status violation referred to as “unlawful presence” might lead to a finding that an F, M, or J nonimmigrant should be subject to the 3- or 10-year reentry bar provisions of INA 212(a)(9)(B).

Under the new policy, F, M, or J nonimmigrants who failed to maintain nonimmigrant status prior to August 9, 2018 will begin to accrue unlawful presence on August 9, 2018, unless they already started to accrue unlawful presence earlier by virtue of (1) a DHS denial of an immigration benefit based on a finding of violation of status (2) the expiration of a “date certain” I-94 departure date or (3) an exclusion or removal order by an Immigration Judge.

For F, M, or J  nonimmigrants who fail to maintain status after August 9, 2018, USCIS will start counting days of unlawful presence the day after a status violation occurs, unless the student applies for reinstatement or the student or exchange visitor is covered by some other exception to the unlawful presence counting rules. Prior policy did not count unlawful presence until a USCIS official or Immigration Judge made a formal finding of a status violation.  Additional information is available on the Unlawful Presence and Bars to Admissibility page of the USCIS website.

IMPORTANT: Most non-US citizens must report a change of address to USCIS within 10 days of moving within the US or its territories, by filing Form AR-11 by mail or online. For additional information and instructions please go to https://www.uscis.gov/addresschange.

USCIS Revised Policy on Issuance of Request For Evidence (RFE)

USCIS has indicated in a Memorandum, dated July 13, 2018, that officers now have the discretion to deny applications without first issuing a Request for Evidence (RFE) or Notice of Intent to Deny (NOID) when they find that the required initial evidence was not submitted or the evidence of record fails to establish eligibility.

Under current practice, unless an application is clearly frivolous or lacking any legal basis, the Service would typically issue an RFE spelling out, often in great detail, the perceived deficiencies and giving the applicant/petitioner an opportunity gather and submit additional evidence and/or legal arguments in support of their case.  This new approach will require applicants and petitioners to take extra care in preparing a properly documented matter for filing.

Importantly, this Memo will only affect matters filed after September 11, 2018.

In light of these Memos, there is no longer any doubt that this Administration is doing everything it can to implement its anti-immigration philosophy.

We intend to do the best we can to see that our clients have the best advice possible under difficult circumstances.


USCIS Policy Memo on Issuance of Notice to Appear in Immigration Court

USCIS has announced an important and disturbing change in how the agency will deal with denied applications for immigration benefits such as requests for extension of stay and change of nonimmigrant status.  Under the new policy set forth in a Memorandum issued June 28, 2018, when the subject of a denied application has no valid underlying immigration status, USCIS is instructed to issue a Notice to Appear (NTA) in Immigration Court to face removal proceedings.

For example, an applicant already in H-1B status working on the basis of a timely filed and now pending application for extension of stay would not have a valid underlying status if the petition extension is denied.  The same would be true for an applicant for Adjustment of Status whose prior nonimmigrant status expired after the I-485 was filed.

This change does not affect applicants who have a valid underlying status.  For example, an applicant who is maintaining valid F-1 OPT status and has time remaining and who is seeking a change to H-1B status would not be affected by the new policy.

Previously, if an immigration benefit was denied and an applicant was then unlawfully present in the U.S., the applicant would need to depart the U.S. immediately but NTAs were not routinely issued nor were any bars usually imposed if they departed before the accrual of 180 days of unlawful presence.

Once an NTA is issued, the matter becomes a removal case in Immigration Court.

Even if the applicant departs from the U.S. immediately, he/she will eventually be called to appear before an Immigration Judge.  If the applicant fails to appear, having already left the U.S., he/she may be ordered removed in absentia.  Once issued, this will trigger bars for reentry that may or may not be waivable.

USCIS offices were given until July 28 to come up with plans to implement this new policy.  Perhaps the government will recognize that this approach unduly burdens the already backlogged Immigration Courts, in addition to causing unnecessary hardship to petitioners and applicants and will moderate or scale back this plan.  But so far, we have no reason to think this is likely.



USCIS Update on H and L Petition Extensions

Since 2004, USCIS policy required adjudicators to defer to prior determinations when reviewing nonimmigrant H or L Visa Petition extensions.  Where the parties involved and the basic facts remained the same, there was a built-in bias toward approval.  The October 23, 2017 Memorandum rescinds that policy.

Now adjudicators must “thoroughly review the petition and supporting evidence to determine eligibility for the benefit sought.”  This will require Petitioners to more thoroughly document petition extensions, even though the regulations at Title 8 C.F.R. specifically state that in some cases, initial evidence need not be submitted with these extension requests.

USCIS cites the undue burden placed on the Service by the prior policy.  The Memorandum notes that adjudicators would have to request a separate file-possibly at another location-in order to determine if the original petition was properly approved, there has been a material change in circumstances, or there is new material information which adversely affects eligibility.

Moving forward, extra care must be taken when preparing an H-1 or L-1 petition extension in order to avoid the dreaded Request for Evidence.

This is just the latest step taken by the administration to negatively impact the lawful employment of foreign nationals-all in the name of protecting U.S. workers.

Please contact our office if you have any questions.

USCIS Expands Interview Requirement for Green Card Applicants

U.S. Citizenship and Immigration Services (USCIS) has announced that it will begin expanding in-person interviews for certain applicants for lawful permanent resident (green card) status. According to USCIS, this is “part of the agency’s comprehensive strategy to further improve the detection and prevention of fraud and further enhance the integrity of the immigration system.”

Effective Oct. 1, USCIS will begin to phase-in interviews for the following:

  • Adjustment of status applications based on employment (Form I-485, Application to Register Permanent Residence or Adjust Status).  Previously, applicants in these categories rarely required an in-person interview with USCIS in order for their application for permanent residency to be adjudicated.
  • Refugee/asylee relative petitions (Form I-730, Refugee/Asylee Relative Petition) for beneficiaries who are in the United States and are petitioning to join a principal asylee/refugee applicant.

Beyond these categories, USCIS is planning an incremental expansion of interviews to other benefit types.
Our office will be in touch to discuss how to prepare for the interviews as soon as we receive any interview appointment notices. Please contact us should you have any questions or concerns.



Suspension of Nonimmigrant Visa (NIV) Processing in Russia

Due to the recent reductions in U.S. Consular staff imposed by the Russian government, nonimmigrant visa processing in Russia will be sharply curtailed.  Specifically:

All NIV operations in Russia are suspended effective tomorrow, August 23.  Previously scheduled appointments are being canceled and applicants are being notified individually.

Beginning September 1, ALL NIV processing will resume in Moscow only.  NO NIV applications will be processed in St. Petersburg, Yekaterinburg, or Vladivostok until further notice.

Scheduling of immigrant visa interviews may also be affected.

Please refer to the Department of State website (https://ru.usembassy.gov/fact-sheet/) for additional information.

We encourage all our clients to contact us in advance of any international travel if they have questions about current documentary requirements for reentry to the U.S.