Key Changes to this Year’s H-1B Cap that You Should Know

Premium Processing Available

U.S. Citizenship & Immigration Services (USCIS) will begin accepting cap-subject H-1B petitions on April 1, 2019, for employment start dates effective Oct. 1, 2019, the start of the 2020 fiscal year. Rather than suspending premium processing for cap-subject H-1B petitions, USCIS announced that it will implement a two-phased approach to requests for premium processing during this year’s H-1B cap season:

Phase one: Only H-1B change of status petitions (i.e. F-1 to H-1B, TN to H-1B, etc.) may be premium processed under this year’s cap.
Phase two: USCIS will not commence premium processing of these cap-subject petitions immediately. USCIS said it will make an announcement, most likely after it has completed the lottery selection process during the second week of April, as to when it will start reviewing affected petitions under the 15-day premium processing service. USCIS expects the premium processing service for affected petition to start no later than May 20, 2019.

Premium processing for all other FY 2020 cap-subject H-1B petitions will be announced at a later date, but not before June 2019. USCIS’ premium processing service provides expedited processing of an H-1B petition within fifteen calendar days for an additional government filing fee of $1,410.

Changes to H-1B Cap Selection Process

As previously announced on our blog, USCIS will be reversing the order by which it selects H-1B petitions under the regular cap and the advanced degree cap for beneficiaries who have earned a U.S. master’s degree or higher from a U.S. institution. Instead of first selecting 20,000 petitions under the U.S. master’s cap, the regular cap of 65,000 will be selected first. This should increase the number of petitions selected for beneficiaries with a U.S. master’s degree or higher, which is a goal of the current administration. USCIS estimates that the change will result in an increase of up to 16 percent in the number of selected petitions for beneficiaries with a U.S. master’s or higher degree.

New H-1B Data Hub

Effective April 1, 2019, a new H-1B Employer Data Hub will be available on uscis.gov that will allow the public to search for H-1B petitioners by a variety of inputs. USCIS has stated that the data will increase transparency in the H-1B program and allow the public to calculate approval and denial rates. The Department of Labor, Office of Foreign Labor Certification (OFLC), which administers the Labor Condition Application (LCA) for the H-1B program, already releases data on a quarterly basis, but this does not include data on ultimate petition approval or denial by USCIS. Please continue to monitor GT’s Inside Business Immigration Blog for additional updates regarding the new H-1B data.

Finally, please initiate any H-1B cap cases as soon as possible as time is running out. GT expects the H-1B cap to close at the end of business on April 5, 2019 and, thereafter, will remain closed until April 1, 2020 when next year’s cap opens.

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

˘ Law clerk/JD

New Report Details Economic Value and Job Creation Impacts Under the EB-5 Program

By Laura Foote Reiff and Robert Y. Maples˘ on March 15, 2019 Posted in General

On March 14, 2019, the EB-5 Investment Coalition, in cooperation with Invest in the USA (IIUSA), released the most comprehensive economic analysis of the EB-5 program to date. Laura Reiff, co-chair of Greenberg Traurig’s Immigration & Compliance Practice, commented on the report: “Without the typical data limitations and constraints on economic analysis, premier industry economists measured and determinized the billions of dollars in economic activity created by EB-5. At a time of needed reauthorization and legislated reforms, we hope to present this data to the Administration and Congress to help make sound economic-based reforms to this vital economic engine and job-creating EB-5 program.”

For more on EB-5 and job creation, click here.

For more on EB-5 and the economy, click here.

˘ Not admitted to the practice of law

Greenberg Traurig Business Immigration Attorney Nataliya Rymer Elevated to Shareholder

By Greenberg Traurig on March 14, 2019 Posted in Awards & Recognitions

Global law firm Greenberg Traurig, LLP elevated environmental attorney Jillian C. Kirn and business immigration attorney Nataliya Rymer to shareholder. The firm also announced the elevation of litigation attorney Gregory T. Sturges to of counsel. All three attorneys are based in the firm’s Philadelphia office.

To read the full press release, click here.

USCIS Resumes Premium Processing for all H-1B petitions

By Joy Sanders˘ and Martha Schoonover on March 13, 2019 Posted in Adjustment of Status, H-1B, H-1B Cap, H-1B Premium Processing, Premium Processing

Effective immediately, USCIS has resumed premium processing for all H-1B petitions. The resumption applies to new petitions as well as those that are currently pending with USCIS. This means that, for the first time in recent history, premium processing will likely be available for petitions filed during the annual H-1B cap-filing season in April. It also allows employers to expedite petitions for an amendment of H-1B status or change of employer, including long-pending petitions already on file with USCIS.

Premium processing service provides expedited processing of an H-1B petition within fifteen (15) calendar days for an additional fee of $1,410, as opposed to 6-12 months or more under standard processing. Additional benefits include email notifications of receipt and approval of petitions by USCIS, and a dedicated phone number and email address for petition-related inquiries.

During last year’s cap-filing season, USCIS temporarily suspended premium processing for all cap-subject petitions, and subsequently extended and expanded the suspension to other types of H-1B petitions, which created a hardship for certain H-1B holders and their employers, such as those beneficiaries needing to travel internationally while awaiting adjudication of an extension of their H-1B status. Full resumption of the service for H-1B petitions is a welcome development, as it can alleviate problems associated with delayed processing.

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

˘ Law clerk/JD

Temporary Protected Status Extended for South Sudan

By Joy Sanders˘ and Martha Schoonover on March 12, 2019 Posted in Department of Homeland Security, South Sudan, Sudan, Temporary Protected Status, TPS

The Department of Homeland Security announced an 18-month extension of Temporary Protected Status (TPS) for South Sudan. Current beneficiaries will be eligible to re-register to remain in the United States with work authorization through Nov. 2, 2020.

South Sudan is one of ten (10) countries currently designated for TPS, which provides a temporary status to eligible individuals who are unable to safely return to their home country because of ongoing armed conflict, an environmental disaster, or other extraordinary and temporary conditions. DHS announced on Feb. 28 that it is also extending TPS for Sudan, El Salvador, Haiti, and Nicaragua until Jan. 2, 2020. DHS had sought to end TPS benefits for these four countries, but has extended the designations to comply with a court order in connection with ongoing litigation over the terminations.

Information about the re-registration process for South Sudan will be published in a forthcoming Federal Register notice. Please check back with us for additional updates regarding the re-registration process.

For more on TPS, click here.

˘ Law clerk/JD

Greenberg Traurig Attorneys, Practices Recognized by Prestigious Chambers Global 2019 Guide

By Greenberg Traurig on March 4, 2019 Posted in Awards & Recognitions, Chambers Global, Immigration Law

Global law firm Greenberg Traurig, LLP has 37 attorneys recognized in the 2019 edition of the prestigious legal services directory, Chambers Global. In addition, 13 practices were ranked across seven regions including Immigration and Compliance. Laura Reiff and Martha Schoonover were ranked under USA Immigration: Business.

To read the full GT press release, click here.

Temporary Protected Status Extended for Sudan, El Salvador, Haiti, and Nicaragua

By Robert Y. Maples˘ on March 1, 2019 Posted in Department of Homeland Security, El Salvador, Haiti, Nicaragua, Sudan, Temporary Protected Status, USCIS

The Department of Homeland Security filed a notice Thursday, Feb. 28 extending Temporary Protected Status (TPS) for four countries – Sudan, El Salvador, Haiti, and Nicaragua – as a result of federal court action. The approximately 300,000 affected immigrants in the United States will be allowed to extend their stays until January 2020.

Please check back with us for additional information on this and other matters as events warrant.

For more on TPS, click here.

˘ Not admitted to the practice of law

USCIS moves EB-5 Modernization Rule to OMB

By Robert Y. Maples˘ on February 23, 2019 Posted in EB-5 Modernization Rule, Office of Management and Budget, OMB, RIN 1615-AC07

On 2/22/19, USCIS forwarded the EB-5 Immigrant Investor Program Modernization final rule (RIN 1615-AC07) to the Office of Management and Budget (OMB) –

AGENCY: DHS-USCIS	RIN: 1615-AC07	Status: Pending Review
TITLE: EB-5 Immigrant Investor Program Modernization
STAGE: Final Rule	ECONOMICALLY SIGNIFICANT: No
RECEIVED DATE:** 02/22/2019	LEGAL DEADLINE: None

OMB will now begin assessment of the final rule produced by the agency via the review and comment period.

OMB is under no timetable for their review.

Please check back as we will update when additional information becomes available.

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

By Gergana A. Tzekova on February 21, 2019 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 February 15, 2019 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.