Today, Secretary of Homeland Security, Kirstjen Nielsen, announced an additional 15,000 H-2B temporary nonagricultural visas will be available for Fiscal Year 2018. DHS had been under political pressure to release additional H-2B visas by businesses and industry groups citing labor workforce needs. Groups had been calling for the immediate release of additional H-2Bs to help meet workforce needs in the tourism industry, among others.
On Jan. 5, 2018, The Department of Homeland Security (DHS) extended Temporary Protected Status (TPS) for nationals of Honduras for six months with a July 5, 2018 expiration date. On May 24, 2108, DHS transmitted a Notice to the Office of Management and Budget (OMB) that indicates final action on Honduran TPS will occur soon.
On April 26, 2018, Secretary of Homeland Security Kirstjen M. Nielsen announced, after reviewing country conditions and consulting with various U.S. government agencies, that the grounds for Nepal’s TPS designation on the basis of an environmental disaster are no longer met and as such, termination of the designation is required by statute. As a result, Nepal’s TPS designation will end on June 24, 2019.
USCIS issued a policy alert on May 16, 2018, to announce that it will revise its policy guidance in the USCIS Policy Manual. The changes will be effective as of May 15, 2018. The policy guidance reverses the previous stance on the tenant occupancy economic methodology. The new policy guidance does not consider the tenant-occupancy methodology as reasonable, and believes that it “results in a connection or nexus between the investment and jobs that is too tenuous,” and as a result, will no longer be a “reasonable or valid forecasting tool.”
USCIS will continue to give deference to I-526 and I-829 petitions filed prior to May 15, 2018, that relied on the tenant-occupancy methodology. All cases filed as of May 15, 2018, will not accept this methodology, and will need to be revised prior to submission.
As there are still some unanswered questions on implementation, Greenberg Traurig will continue to monitor the progress of the policy memo when published.
On May 15, USCIS announced completion of H-1B lottery picks for this year. H-1B cap petitioners can expect notification from USCIS in the next several weeks.
In an update on its website, USCIS said it has completed data entry for all fiscal year 2019 H-1B cap-subject petitions selected in its computer-generated random selection process. USCIS will now begin returning all H-1B cap-subject petitions that were not selected. Due to the high volume of filings, USCIS cannot provide a definite time frame for returning unselected petitions. USCIS asks petitioners not to inquire about the status of their cap-subject petitions until they receive a receipt notice or an unselected petition is returned. USCIS will issue an announcement once all the unselected petitions have been returned.
Additionally, USCIS may transfer some Form I-129 H-1B cap subject petitions between the Vermont Service Center and the California Service Center to balance the distribution of cap cases. If a petitioner’s case is transferred, the petitioner will receive notification in the mail. After receiving the notification, USCIS asks that petitioners send all future correspondence to the center processing the petition.
The Department of State’s (DOS) June 2018 Visa Bulletin showed very little movement the employment-based categories. Referring to the Final Action Dates, the following are the updates for the June Visa Bulletin:
On April 25, 2018, European Union ambassadors reached an agreement between the European Council and representatives of the European Union Parliament for a European version of the U.S. Electronic System for Travel Authorization (ESTA).
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 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.
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.