Update on USCIS Efforts to comply with “Buy American and Hire American”

On April 4, 2018, the Director of USCIS, Lee Francis Cissna, penned a letter to Chairman Grassley to update him on USCIS’ efforts to comply with the April 2017 Executive Order, “Buy American, Hire American.” The contents of the letter are broken into three parts: 1) Current action items for USCIS; 2) Past items; and 3) Proposed future items to address. Below are the pending changes, proposed changes, and made changes that have occurred since the Executive Order:

USCIS Completes the H-1B Cap Random Selection Process for FY 2019

By Kristen Burke on April 13, 2018 Posted in H-1B, H-1B Cap, USCIS

USCIS has announced that it received 190,098 H-1B petitions during the filing period for FY2019, which began on April 2, 2018, including petitions filed for the advanced degree exemption. This year’s number of petitions is lower than the 199,000 H-1B petitions filed in FY2018. Per the regulations, on April 11, USCIS conducted its random lottery for H-1B cap-subject petitions that would be selected for processing. USCIS will begin processing H-1B cap cases now. Employers with cap-subject petitions that were selected for adjudication will receive in the near future the H-1B receipt notice on Form I-797C. USCIS will reject and return all unselected petitions with their filing fees unless the petition is a prohibited multiple filing. USCIS will release an announcement once all the H-1B petitions have been returned.

Employers may wish to assess alternative options while waiting to see whether a particular H-1B case was accepted or rejected for processing by USCIS. GT will keep you updated as to any developments that arise.

FY2019 H-1B Cap Met

By Kristin Bolayir* on April 6, 2018 Posted in E-Verify, H-1B, H-1B Cap, OPT, STEM, USCIS

USCIS announced today, April 6, 2018, that the FY 2019 H-1B cap is now closed because it has received a sufficient number of H‐1B petitions to reach the 65,000 statutory cap as well as the 20,000 advanced degree exemption. The announcement did not provide details about the total number of H-1B petitions filed. USCIS will reject any further cap‐subject H-1B petitions received seeking an employment start date in FY 2019 (Oct. 1, 2018 or after). With this year’s H-1B cap closed, employers will be unable to file new H-1B petitions subject to the cap until April 1, 2019, when the FY2020 H-1B cap opens for petitions with a start date of Oct. 1, 2019. Petitions that are otherwise exempt from the cap, such as H-1B extensions, H-1B ports to new employers, or H-1Bs filed for exempt employers, will continue to be accepted and processed by the USCIS.

The USCIS will use a computer‐generated random selection process (commonly known as the “lottery”) for all FY 2019 cap‐subject petitions received through April 6, 2018. USCIS has not released a date the lottery will be completed due to the high number of petitions received. USCIS will conduct the selection process for 20,000 advanced degree exemption petitions first. All advanced degree petitions not selected during the initial lottery will then become part of the random selection process for the 65,000 statutory cap. USCIS will reject and return any cap‐subject petition that is not randomly selected along with filing fees. As previously reported, premium processing for cap-subject petitions remains suspended. It is expected that the temporary suspension will last until Sept. 10, 2018. USCIS continues to accept premium processing requests for non-cap subject H-1B petitions.

Rejection rates under this year’s H-1B cap is expected to be very high. Employers may want to consider conducting a proactive assessment of alternative options for any employee who it has sponsored under this year’s cap, especially since next year’s cap will not open until April 1, 2019, for Oct. 1, 2019 start dates. Such contingency plans include: (a) reviewing alternative work visa options; (b) determining whether a student candidate who holds F-1 Optional Practical Training (OPT) work authorization is eligible for a 24-month OPT extension because the candidate holds a U.S. Science, Technology, Engineering or Math (STEM) degree and the employer is enrolled in E-Verify; (c) having the employee work abroad at a related foreign entity of the U.S. company and returning to the country after a year on a L-1 visa; or (d) exploring whether the candidate can enroll in a U.S. academic program and secure U.S. work authorization.

GT will continue to monitor this situation and provide new information as it becomes available. For additional information about the H‐1B cap or a particular H‐1B case, please contact your attorney.

*Not admitted to the practice of law.

10 Greenberg Traurig Shareholders Selected for 2018 Law360 Editorial Advisory Boards

By Greenberg Traurig on April 3, 2018 Posted in Awards & Recognitions

Ten shareholders from global law firm Greenberg Traurig, LLP have been selected to be members of Law360’s 2018 Editorial Advisory Boards. The 10 attorneys span 11 practices and eight offices, including Ian R. Macdonald for the Immigration Editorial Advisory Board. To read the full list, click here.

USCIS and CBP to Implement Form I-129 Pilot Program for Canadian L-1 Nonimmigrants

By Robert Y. Maples on April 2, 2018 Posted in Form I-129, L-1, U.S. Customs and Border Protection (CBP), USCIS

From April 30, 2018, to Oct. 31, 2018, the USCIS California Service Center (CSC) and the U.S. Customs and Border Protection (CBP) at the Blaine, Washington, port of entry (POE) will implement a joint agency pilot program for Canadian citizens seeking L-1 nonimmigrant status under the North American Free Trade Agreement (NAFTA). This pilot is designed to facilitate the adjudication and admission process of Canadians traveling to the U.S. as L-1 nonimmigrants.

DOS Proposes Rule Requiring Review of Social Media for U.S. Immigrant and Non-Immigrant Visa Applicants

By Robert Y. Maples on March 31, 2018 Posted in Immigrant Visa, Non-Immigrant Visas, U.S. Department of State (DOS)

The Department of State (DOS) has noticed for public comment an Information Collection Review – Electronic Application for Immigrant Visa and Alien Registration that would require immigrants coming to the United States to submit five years of social media history. This effort is viewed by many as a component of “enhanced vetting” on behalf of the Administration following domestic terrorist activities.

Under New H-1B Rule Interpretation, You May be More Closely Related than You Think

By Scott Decker and Cole F. Heyer on March 30, 2018 Posted in H-1B, USCIS

On March 23, 2018, USCIS significantly changed its interpretation of the H-1B rules by issuing a policy memorandum adopting the Administrative Appeals Office (AAO) decision Matter of S- Inc. The issue addressed in Matter of S- Inc. is the meaning of the term “related entities” in cases where multiple employers file cap-subject H-1B petitions for the same beneficiary.

President Releases Memorandum Addressing Liberian Nationals in the United States

By Robert Y. Maples on March 28, 2018 Posted in President Trump's Administration

Yesterday, President Trump issued a Presidential Memorandum for the Secretary of State and the Secretary of Homeland Security regarding Liberian nationals in the United States. The Memorandum provides for a 12-month wind-down of both Deferred Enforcement Departure and Temporary Protected Status effective March 31, 2019.

Temporary Suspension of Premium Processing for FY2019 H-1B Cap Cases

By Shaoul Aslan‡ on March 21, 2018 Posted in Form I-907, FY 2019, H-1B, H-1B Cap, Premium Processing, USCIS

The United States Citizenship and Immigration Service (USCIS) announced a temporary suspension of premium processing for 2019 Fiscal Year H-1B cap-subject petitions, including those cases seeking exemption on the basis of the beneficiary having obtained a U.S. masters or higher degree. It is expected that the temporary suspension will last until Sept. 10, 2018. The reason for the temporary suspension is to help reduce the overall processing times of H-1B petitions.

While the temporary suspension is in place, the USCIS will reject all Forms I-907 that are filed with the FY 2019 H-1B cap-subject petitions. In cases where one check covers both the premium processing (Form I-907) and the petition (Form I-129) fees, the service will reject both applications. If the petitions are filed with two separate checks, then only the premium processing (Form I-907) will be rejected and returned. USCIS will inform stakeholders when the temporary suspension will be lifted. Once lifted, a petitioner can file a request using Form I-907 to move to premium processing.

During the period of temporary suspension, the USCIS will continue to accept premium processing requests for non-cap subject FY 2019 H-1B petitions.

The USCIS will continue to accept and rule on requests to expedite a FY 2019 H-1B cap-subject petition that falls within the parameters set forth in the Expedite Criteria webpage.

Homeland Security Inspector General Issues Report on USCIS Processing Times for Green Cards

By Robert Y. Maples on March 16, 2018 Posted in Green Card, USCIS

On March 14, USCIS released an Inspector General’s report on Green Card Processing Times. The report found that green card processing times exceeded the existing 120-day goal by taking an average of 282 days to complete. The report identified processing times are greatly affected by interviews and vetting occurring at USCIS.

The report made two specific recommendations which USCIS concurred:

Recommendation 1: Implement plans to present information on the USCIS website that more accurately reflects the length of the adjudication process for green card applications, so the website information is clear and helpful to stakeholders.

Recommendation 2: Reassess the current green card application processing time goal of 120 days to determine whether it is reasonable and realistic and increase the timeframe if necessary.

OIG Analysis: We consider USCIS’ planned actions responsive to the recommendation, which is resolved and open. We will close this recommendation upon receiving USCIS’ decision regarding any changes to the goal for processing green card applications and the rationale behind the decision, including analysis of the newly calculated processing times.