USCIS to Revise Form I-539 and Implement New Form I-539A

By Gergana A. Tzekova on Posted in Non-Immigrant Visas

On Feb. 11, 2019, the United States Citizenship and Immigration Services (USCIS) announced it will revise Form I-539, Application to Extend/Change Nonimmigrant Status, and publish a new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status. Currently, Form I-539 is used by certain nonimmigrants extending their stay or changing to another nonimmigrant status; CNMI residents applying for an initial grant of status; F and M nonimmigrants applying for reinstatement; and persons seeking V nonimmigrant status or an extension of stay as a V nonimmigrant. Form I-539 is nine pages, including Supplement A, used to include spouses or unmarried children under 21 years of age as co-applicants.

  • Revised Form I-539 will be published on the USCIS website on March 11, 2019, and that will be its effective date. Historically, prior Form revisions have been accompanied by a grace period where USCIS would continue to accept older editions of the Forms for a set period of time for implementation.  In its announcement, however, the USCIS indicated that as of March 11, 2019, it will only accept a form with an edition date of  02/04/19; it will reject any Form I-539 with an edition date of 12/23/16 or earlier.
  • Form I-539A will also be published on USCIS website on March 11, 2019. The form will replace Supplement A to Form I-539. Co-applicants must submit and sign separate Forms I-539A, one for every co-applicant.
  • Regardless of the age, every applicant and co-applicant must pay a biometrics fee of $85 and will be scheduled for a biometric services appointment. Biometrics are collected at Application Support Centers (ASCs) and generally include digital fingerprints, photographs, and/or signatures. Pursuant to 8 CFR 103.2 (b)(9), USCIS has the general authority to require and collect biometrics (fingerprints, photograph, and/or digital signature) from any applicant, petitioner, sponsor, beneficiary, or other individual residing in the United States seeking immigration and naturalization benefits. This authority has been used primarily for immigrant visa and naturalization applications to allow USCIS to run required background and security checks, and not for nonimmigrant applications.

This unexpected announcement will lead to even longer USCIS processing times for nonimmigrant visa applications (currently taking six to nine months), additional processing fees, and further strain on local ASCs. Finally, given the timing and lack of grace period, this change will impact dependents of some of the H-1B FY2020 Cap Subject beneficiaries and their filings this year.

For more information on nonimmigrant visas, click here.

USCIS Reports Increased Processing Times

By Sarah E. Amendola on Posted in USCIS

USCIS released telling data containing average processing times per form and petition type for fiscal years 2014 to 2018. While the normal pendency period for almost every type of case has increased since 2014, there have been significant delays for certain types of petitions. Foreign nationals seeking green cards have experienced longer wait times than foreign nationals benefitting from a non-immigrant visa petition. The numbers show that the change in the length of adjudication period has been especially significant over the past two years.

USCIS does not depend on government funding but is financed by fees collected in connection with the filing of each petition/application. Congress has enabled USCIS to recover the full cost of immigration-benefit processing and to set fees accordingly. This should provide for a direct correlation between case load and the monetary support necessary to facilitate the adjudication of these cases. However, in its annually mandated report to Congress last year, USCIS cited an inability to reconcile its fee structure with an increase in the complexity of cases. USCIS names new statutory and policy decisions in addition to extra security screenings as some of the reasons why cases are taking longer for the agency to adjudicate.

On Feb. 12, 2019, 86 Congress members wrote to the director of USCIS about their concerns regarding these processing delays. They asked that USCIS provide more transparency in its adjudication procedures and take the steps necessary to address, reduce, and prevent future delays.

Below are the statistics regarding the most common petitions/applications in business immigration:

Average Processing Time (in months)

The long processing times for immigrant petitions and immigrant-petition-based benefits (sought through the filing of Forms I-485, I-131, and I-765) are likely to cause issues for some foreign nationals. Employers seeking to file for permanent residency for their employees already working in the United States must plan to do so far in advance, allowing sufficient time for these applications to process before their employees’ nonimmigrant status will expire.

For more on processing time, click here.

Congress Prepares Action to Avoid Government Shutdown and Fund Vital Programs Such as EB-5

By Robert Y. Maples˘ on Posted in EB-5 Program, government shutdown

Late on Feb. 13, 2019, House and Senate Conferees on the Department of Homeland Security (DHS) Appropriations announced an agreement on DHS Appropriations for FY 2019 and the remaining six other outstanding FY 2019 Appropriations measures. The measure, HJ Res 31, or “the Omnibus,” is over 1,000 pages and deals with many areas of government, ranging from agriculture to transportation, among others.

Of particular importance to our readers, the EB-5 Immigrant Investor Program is extended until Sept. 30, 2019, in the following passage:

DIVISION H-EXTENSIONS, TECHNICAL CORRECTIONS, AND OTHER MATTERS TITLE I

IMMIGRATION EXTENSIONS

SEC. 104. Section 610(b) of the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1993 (8 B.SC. 1153 note) shall be applied by substituting “September 30, 2019” for “September 30, 2015”.

The Conference agreement and legislative package must now be presented and passed by the Senate and House and agreed to by the president before midnight on Feb. 15 to avoid a government shutdown.

Please check back, as we will continue to provide updates on significant developments. For more on the government shutdown, click here.

˘ Not admitted to the practice of law

How the USCIS changed its Advance Parole Policy – An Inside Look

By Gergana A. Tzekova on Posted in Advance Parole

On February 8, 2019, the Office of the Citizenship and Immigration Services Ombudsman (Ombudsman’s Office) provided an inside look at its innerworkings with the United States Citizenship and Immigration Services (USCIS). Created by section 452, of the Homeland Security Act of 2002, the Ombudsman’s Office assists individuals and employers who need to resolve a problem with USCIS and to make recommendations to fix systemic problems and improve the quality of services provided by USCIS.

USCIS began denying applications for renewals of Advance Parole (AP) documents, over a year ago, if applicants traveled internationally. Although authorized by law, this change in policy was followed by re-filing of thousands of AP renewal applications, emergency AP filings at local USCIS centers and resulted in strain of the USCIS resources.

On Nov. 16, 2018, during Ombudsman’s Office Annual Conference, USCIS Director, L. Francis Cissna confirmed that USCIS will end its practice of denying pending AP applications when applicants travel internationally.  This unexpected, yet welcomed change of policy was a result of the collaboration between USCIS and Ombudsman’s Office. The two agencies met numerous times with USCIS to discuss the issues and practical implications associates with AP denials.

To date, the USCIS website indicates that if an individual has an approved AP document while a second one is pending, they may travel on the approved AP document, provided the AP document is valid for the entire duration of the time abroad. In this case, the pending AP extension will not be considered by the USCIS as abandoned.

For more information on advance parole, click here.

Travel During H-1B Cap Season- Do’s and Don’ts

By Kristen W. Ng on Posted in H-1B, H-1B Cap, Immigrant Visa, Non-Immigrant Visas, Visas

H-1B cap season is once again around the corner. On March 29, 2019, hundreds of thousands of H-1B cap petitions will be shipped to USCIS Service Centers in Vermont and California for selection in this year’s cap season. Assuming premium processing does not come back, the wait time for that receipt notice seems to stretch on forever as an indication that the lucky petition was picked. The question that always comes up refers to international travel during H-1B cap season, since April and May seem to go into a black hole of no news. Can a beneficiary for an H-1B cap petition travel outside the US during the H-1B cap? The answer is extremely lawyerly: It Depends. Below, we lay out the scenarios for different classifications as to who may or may not travel internationally, and if travel is a must, what the implications mean.

F-1 Students

Relying on Cap Gap: If you are an F-1 student, and relying on cap gap, you should not travel before you receive news of whether your petition has been selected and approved. If you do travel and you are relying on cap gap for work authorization, you may not be able to return to the United States, as your F-1 status is no longer valid. If your H-1B petition has been selected and approved (as a change of status), then you may travel and return before Oct. 1, if you meet certain conditions; however, we strongly recommend against travel during this period if you are relying on cap-gap.

Not Relying on Cap Gap: If you are an F-1 student and your EAD is still valid, you may travel, with all the required documentation for F-1 students. However, note that if you do travel, and your petition was filed as a Change of Status, the petition will automatically be approved as a Consular Notification because you will be deemed to have abandoned your Change of Status application by traveling outside the United States while it was pending.

Other Non-Immigrant Status

If you are on a different non-immigrant status – for example, H-4, TN, O-1, and you know you have international travel plans between the months of April and October, it may be smart to have your petition filed as consular notify if your current non-immigrant status will still be valid and you have the proper visa and other documents. If you travel during the period between April 1 and Sept. 20 (because you may enter up to 10 days before the start date in H-1B status), and your petition was filed as a Change of Status, the Change of Status will be denied and you will need to exit the U.S. and reenter to “activate” the H-1B after Sept. 20, after the H-1B petition has been approved.

If you have any further questions, please contact a team member at Greenberg Traurig. We will continue to post updates and practice pointers for the upcoming H-1B cap season.

For more on H-1B cap petitions, click here.

Greenberg Traurig’s Kate Kalmykov Recognized as one of NJBIZ’s 2019 Best 50 Women in Business

By Greenberg Traurig on Posted in Awards & Recognitions

Kate Kalmykov, an Immigration & Compliance shareholder the New Jersey office of global law firm Greenberg Traurig, LLP, has been recognized as one of NJBIZ’s “2019 Best 50 Women in Business.” According to NJBIZ’s website, the award honors women business leaders that are prominent in their companies and industries, as well as their communities. The honorees are front-runners shaping the cultural and economic future of New Jersey.

To read the full press release, click here.

Greenberg Traurig Attorney Courtney Noce is Quoted in Law360*

By Greenberg Traurig on Posted in General

Courtney Noce, shareholder of Greenberg Traurig’s Immigration and Compliance practice, was recently quoted in the Law360 article, “Shutdown Woes Aren’t Over For Immigration Courts.” The article discusses the government shutdown and its effect on immigration. To read the full article, please click here.

*Access to this article requires a Law360 subscription

Changes in H and L Visa Processing in China

By Lou Metsu˘ and Martha Schoonover on Posted in China, Foreign Worker, H-1B, Immigration Law, L-1, L-1A, L-1B, special knowledge, U.S. Consulates, Visas

The Department of State (DOS) and Mission China announced that changes have been made to consolidate the processing in China of H and L visa applications for foreign nationals seeking to work in the United States. Starting March 1, 2019, all interviews for H and L visas will be conducted only at the U.S. Embassy Beijing, U.S. Consulate General Guangzhou, and U.S. Consulate General Shanghai. The U.S. Consulate General Chengdu and U.S. Consulate General Shenyang will no longer be conducting H or L visa interviews. These changes are a result of the volume and complexity of H and L visa petitions, and will ensure adequate resources and expertise are effectively applied in reviewing the petitions.

H-1B, Specialty Occupation, is a visa that allows U.S. companies to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. Specialty occupation fields include, but are not limited to: architecture, engineering, mathematics, physical sciences, social sciences, medicine and health, education, business specialties, accounting, law, theology, and the arts.

L-1A, Intracompany Transferee Executive or Manager, is a visa classification that allows a U.S. employer to transfer an executive or manager from one of its affiliated foreign offices to one of its offices in the United States. The L-1A visa also allows a foreign company, which may not already have an affiliated U.S. office, to send an executive or manager to the U.S. with the purpose of establishing one.

L-1B, Intracompany Transferee Specialized Knowledge, allows a U.S. employer to transfer a professional employee with specialized knowledge relating to the organization’s interest from one of its affiliated foreign offices to one of its U.S. offices. The L-1B visa also allows a foreign company that does not yet have an affiliated U.S. office to send a specialized knowledge employee to the United States with the purpose of establishing one.

GT will continue to monitor and report on changes in consular processing that can impact the visa application process.

To read more on U.S. business immigration developments as relates to China, click here.

˘ Not admitted to the practice of law

E-Verify Resumes Operation

By Lou Metsu˘ and Martha Schoonover on Posted in Department of Homeland Security, E-Verify, Form I-9, government shutdown

As the federal government re-opened (officially on Jan. 25, 2019), E-Verify has resumed operations. The Department of Homeland Security (DHS) has provided guidance regarding the resumption of E-Verify operations. Although all E-Verify features and services are now available, including the ability to resolve a Tentative Nonconfirmation (TNC), employers may experience longer-than-usual processing times as the agency works through the large volume of cases that accumulated during the government shutdown. Employers who participate in E-Verify must create an E-Verify case by Feb. 11, 2019, for each employee hired while E-Verify was not available.

Form I-9, Employment Eligibility Verification

Although Form I-9 support representatives were unavailable during the government shutdown, and E-Verify services were disrupted, employers were still required to complete and retain Form I-9s for every person hired for employment in the United States during that time, as long as the person works for wages or other remuneration.

E-Verify

Creating Cases: Employers who participate in E-Verify must create an E-Verify case by Feb. 11, 2019, for each employee hired while E-Verify was not available. You must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If the case creation date is more than three days following the date the employee began working for pay, select “other” from the drop-down list, and enter “E-Verify Not Available” as the specific reason.

Tentative Nonconfirmations: If your employee received a TNC and notified you of his or her intention to contest it by Feb. 11, 2019, you must revise the date by which your employee must contact the Social Security Administration (SSA) or DHS to begin resolving the TNC. Please refer to the guidance for further instructions. For TNC cases that were referred after E-Verify resumed operations, do not add days to the time your employee has to contact either SSA or DHS. If your employee decided to contest the TNC when E-Verify was unavailable, you should now refer to the employee’s case and follow the TNC process.

Federal Contractor Deadlines: Any calendar day during which E-Verify was unavailable due to the government shutdown should not count towards the federal contractor deadlines found in the Employment Eligibility Verification Federal Acquisition Regulation. Please contact your contracting officer for further information on federal contractor responsibilities

˘ Not admitted to the practice of law

DHS Publishes Final Rule for H-1B Lottery

By Kristen W. Ng on Posted in Department of Homeland Security, H-1B, H-1B Cap, H-1B Premium Processing, Immigrant Visa, Immigration Law, Uncategorized, USCIS, Visas

On Nov. 30, 2018, the Department of Homeland Security issued the notice of proposed rulemaking to amend its H-1B cap-subject lottery process. On Jan. 31, 2019, USCIS will publish the final rule after a 30-day comment period. The final rule encompasses a pre-registration process and a modified selection process. The registration process will be suspended for FY 2020 cap season to finish testing the H-1B registration system. Below is what employers, attorneys, and employees alike need to know:

How to Register: The USCIS will house the H-1B cap registration process through ICAM, a portal that will allow accounts to submit H-1B cap registrations. A petitioner must submit a separate registration for each beneficiary, and the beneficiary must be named. A petitioner may submit one registration per beneficiary, and as with previous years, if multiple requests for the same beneficiary and same petitioner are found, the registration for that beneficiary will be considered invalid.

Timing: The registration period will last at least 14 calendar days, and will start at least 14 calendar days before the earliest date the H-1B petition can be filed. USCIS will announce the start of the registration period at least 30 days before the first date of open registration. As with previous filings, the start date on the petition may only begin on the first day of the fiscal year, Oct. 1. If for any reason the registration period is open longer than anticipated by USCIS, then the start date may begin later.

Selection Process: USCIS will conduct a random lottery of the registrations it receives. If the cap has not been reached at the end of the period, USCIS will notify all those that are selected and keep the registration period open until the slots have been filled, which will determine the “final registration date.” If the cap is reached at the end of the registration period, USCIS will notify the public of the “final registration period” and will then randomly select via computer the registrations that will move on to the next stage.

Most notably, the order of selection will change for the petitions filed for FY 2020, though the registration process will take effect FY 2021 due to testing of the proposed system. Instead of the U.S. Master’s degree registrations being selected first for the 20,000 spots, the general pool will go first, where 65,000 regular cap registrations are selected. This means there will be more U.S. Master’s degree registrations mixed within the regular pool. USCIS will announce the “final registration date” after all U.S. Master’s degree registrations have been selected.

USCIS will maintain a reserve pool of registrations in case it needs to increase the number of registrations to meet the H-1B cap (both regular and advanced degree exemption).

Notification: Petitioners will receive an electronic notification that their registration has been selected, and can therefore move forward with filing the H-1B petition, only for the beneficiary named on the registration notice. The H-1B petition must be filed within the filing period indicated on the notice, which will be at least 90 days. If this window is missed, USCIS will deny or reject the H-1B petition.

Fine Text: USCIS makes it very clear that even if the registration process is suspended, the order and manner in which the cap subject petitions are selected will remain in effect.

Implications: The registration process will not go into effect this coming H-1B cap season, but the system will be tested throughout the year for implementation next year. The manner of selecting cap cases will change, with the regular cap going first, then the U.S. Master’s cap. As such, there will be a greater chance for those with U.S. Master’s degrees to be selected in the process.

Greenberg Traurig will continue to monitor changes for this coming H-1B cap season, as USCIS should be making its announcement shortly. To read more on H-1B caps, click here.

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