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U.S. Citizenship and Immigration Services announced today that it has completed testing of the online H-1B registration system and will implement it for the upcoming cap season with an initial registration period starting March 1.
Key dates and details:
BAL Analysis: Petitioners should prepare information required for their H-1B online registrations to be submitted on March 1. An official notice with additional details is expected to be published in the Federal Register in the coming weeks. BAL is closely monitoring the rollout of the registration system and will update clients as additional details about its implementation are released.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
Copyright © 2019 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
As the holiday season approaches and your employees begin requesting time off for vacation and international travel, it’s important that your foreign employees are aware of immigration-related requirements and the consequences of heading overseas for the holidays.
Employees who were selected in this past April’s H-1B lottery and have an approved H-1B may wish to use holiday travel to obtain a new visa stamp abroad. This is because many employees have changed their status to H-1B status as of Oct. 1 and therefore must have a new visa to travel. In order to return to the U.S. and continue their employment, these employees must first obtain an H-1B visa at a U.S. Consulate in their home country or a third country. This process—and how long it takes to complete—varies from consulate to consulate and requires planning to ensure employees are able to complete the process and return to work without business disruption.
Employees whose H-1B petition is still pending may or may not be advised to travel, depending on their specific circumstances. Employees who have applied for a change of status that is still pending should not travel until the application is approved. Employees with pending extension of status applications, however, are normally permitted to travel before the application is approved.
Some employees may have family members who are planning to travel abroad without them. Spouses and children of an employee (the principal visa holder) should be sure to carry proof that the employee is maintaining status in the U.S., typically in the form of the employee’s approval notice, an employment confirmation letter and paystubs.
Employees who are in the green card process may not be able to travel internationally, or, depending on their current status, may face scrutiny of their nonimmigrant intent if they apply for a visa or re-admission. Some employees with a pending Form I-485 application to adjust their status to permanent resident may be required to obtain a separate travel document, called advance parole, before departing the U.S. to preserve their green card application. Most valid H-1B holders are permitted to travel without needing to apply for advance parole.
Upon returning to the U.S., it is critical that employees provide their BAL attorney with their new I-94 information. The I-94 document controls the employee’s authorized period of stay in the U.S. regardless of what the employee’s visa or I-797 approval notice says. It is not uncommon for an immigration officer to make incorrect notations on an I-94, and a BAL attorney should review the details on the employee’s I-94 as soon as possible to ensure that they are accurate.
As employees prepare for their vacations, they are reminded to factor in plenty of time to navigate any immigration-related issues with their BAL attorneys before finalizing their travel plans.
The information contained here is meant to be informational, and while BAL has made every effort to ensure the accuracy of the information, it is not promised or guaranteed to be complete. Readers of this information should not act upon any information contained on this alert/blog without seeking professional counsel. This alert does not constitute legal advice or create an attorney-client relationship. Any reference to prior results, does not imply or guarantee similar future outcomes.
Late yesterday, U.S. Citizenship and Immigration Services released a new edition of the Form I-907 Premium Processing Request (12/02/19 edition) to reflect the fee increase that took effect yesterday. The agency issued the new form without providing a grace period for use of the old version. The new edition is required for cases postmarked Dec. 2 and later.
The new version includes an increase in the government premium processing fee to $1,440 (a $30 increase from the previous amount).
U.S. Citizenship and Immigration Services has announced that in December it will follow the State Department’s Dates for Filing chart, as published in the December Visa Bulletin, to determine whether applicants are eligible to file for adjustment of status.
Dates for Filing for Employment-Based Preference Cases:
Family-based immigrants will also use the Dates for Filing chart applicable to family-sponsored immigrants, which was also published in the December Visa Bulletin.
BAL Analysis: December will mark the third straight month that USCIS will use the Dates for Filing chart. This is good news for a number of employment-based immigrants, as the Dates for Filing chart contains more progressive cutoff dates than the Final Action Dates chart, especially in EB-1. Because Vietnam is not included on the Dates for Filing chart, adjustment of status applicants from Vietnam should use the dates listed under “all other countries.” The State Department has indicated that USCIS may return to Final Action Dates in the January Visa Bulletin.
A federal judge granted an injunction Tuesday that will continue to prevent the Trump administration from implementing a proclamation that would restrict the entry of immigrants on the basis of their ability to pay for health care.
Key Points:
BAL Analysis: The proclamation is not in effect at this time and, under Tuesday’s ruling, will not be enforced for the duration of the lawsuit challenging it. BAL will continue to follow the lawsuit and will provide updates on key developments.
On Friday, a federal judge heard arguments on whether to issue an injunction that would continue to block President Donald Trump’s health care proclamation for immigrants while the underlying lawsuit progresses. The proclamation would deny immigrant visas to applicants unless they are able to prove that they will be insured by an approved health insurance plan or can afford to cover their health costs. The proclamation was scheduled to go into effect Nov. 3, but was blocked by a federal court.
Key points:
BAL Analysis: The proclamation is not in effect at this time, and a decision is expected by Saturday on whether it will continue to be blocked. BAL is following the lawsuit and will report developments as information becomes available.
The Department of Homeland Security has published its semi-annual regulatory agenda that includes plans for sweeping changes to H-1B and L-1 visas and other legal immigration routes in the coming months.
Key employment-based immigration priorities:
BAL Analysis: DHS has set out an aggressive 2020 agenda to further tighten key immigration routes for foreign high-skilled workers. It is not clear at this time whether the agencies will be able to meet their targeted timelines, as several of these items have been on previous regulatory agendas but have not yet been proposed. It is important to note that current rules remain in place today, and after proposing a regulation, federal agencies typically allow the public to submit comments for 30 to 60 days. They must then consider the comments submitted in finalizing a regulation. BAL is closely monitoring the progress of these agenda items and will provide updates on developments.
On Oct. 25, 2019, the U.S. Attorney General issued a decision holding that evidence of multiple DUI convictions establishes a presumption that a foreign national lacks “good moral character.”
Background: The case involved a Mexican national seeking cancelation of removal on the grounds of exceptional and extreme hardship on his wife and three U.S. citizen children. Among the requirements, he must prove good moral character for the previous 10 years. An immigration judge granted his request for cancelation of removal, finding that despite two DUI convictions in 2010 and 2012, they were outweighed by his work history, his support for his family and his efforts to rehabilitate his previous alcohol abuse. The Board of Immigration Appeals (BIA) overturned the judge’s ruling on the grounds that he did not show the requisite “exceptional and extremely unusual hardship,” and on the alternative grounds that he did not show “good moral character.”
Last December, Acting U.S. Attorney General Matthew Whitaker directed the BIA to refer the case to him for review. Last month, U.S. Attorney General William Barr affirmed the BIA’s order and provided new reasoning under the good moral character grounds.
The full decision in Matter of Castillo-Perez is here.
BAL Analysis: The Attorney General’s decision departs from previous policy and will make it more difficult for foreign nationals to overcome multiple DUIs during the relevant look-back period to establish good moral character. Though the case involved a 10-year look-back period for purposes of cancelation of removal, foreign nationals applying for naturalization are also required to prove they possess good moral character for a five-year period preceding their application, thereby impacting those individuals as well. A footnote in the decision may also reveal potential impacts on applicants for permanent residence. In the footnote, the Attorney General noted that as the decision to grant or deny adjustment of status (permanent residence) is also a discretionary benefit, there should be “a careful analysis of whether an applicant with multiple DUI convictions merits such relief as a matter of discretion.”
Foreign student enrollment at U.S. universities is on the decline for the first time in more than a decade. New enrollment of foreign students at U.S. universities dropped by 1% in the 2018-19 school year, 7% in 2017-2018, and 3% in 2016-17.1 This year, U.S. business schools saw a 13.7% drop in foreign student applicants, while Canada and Europe are increasing their pool of foreign applicants.2
U.S. business leaders are beginning to sound the alarm. Fifty-five deans of U.S. business schools and 15 CEOs of U.S. companies recently signed a letter to President Trump warning that the U.S. is losing global talent because of outdated and restrictive immigration policies.
Foreign students provide a talent pipeline of educated, diverse, skilled workers already acclimated to American life and equipped to join the U.S. workforce, especially in STEM fields, where U.S. companies currently have 3 million unfilled jobs. Foreign students, who typically pay full out-of-state tuition rates to attend U.S. universities with little to no financial aid, anticipate employment in the U.S. after graduation to recoup those costs. Immigration policies that make it harder for foreign students to remain and work in the U.S. after graduation will slow the talent pipeline and divert it to other countries. In a 2018 survey, 83% of U.S. universities cited visa delays and denials as a major concern for lower enrollment.
Options are already limited for foreign students graduating from U.S. universities—and the current administration has further curtailed those options. H-1B denial rates have soared under the Trump administration and the adjudication process has become increasingly challenging and unpredictable. The one-year Optional Practical Training (OPT) program, along with the two-year extension for students holding degrees in STEM fields, are important programs that provide practical training opportunities and an important work-authorization bridge for foreign graduates seeking H-1B visas. The Department of Homeland Security has signaled it intends to limit OPT programs. The agency also plans to restrict foreign students’ maximum period of stay to a fixed period, after which they would need to obtain a different visa status or leave the U.S. This would replace longstanding policy that allows them to stay for the duration of their studies.
Just as there is a global race for high-skilled workers, so is there intense global competition for young minds who will shape the future talent pool. At a time when many countries are easing their policies to attract foreign students—Canada allows three-year open work permits after graduation and a pathway to permanent residency, and the U.K. introduced two-year visas to live, work and seek jobs after graduating from a U.K. university—U.S. immigration policies are moving in the opposite direction. The policies of today will have a lasting impact on the ability of U.S. companies to attract and retain international talent for years to come, and this will inevitably impact the U.S. economy.
1 Institute of International Education (2019), “International Student Enrollment Trends, 1948/49-2018/19,” Open Doors Report on International Educational Exchange; Okahana, H., and Zhou, E. (2019), “International graduate applications and enrollment: Fall 2018,” Council of Graduate Schools.
2 Graduate Management Admission Council (2019), “Early Warning Signs: Winners and Losers in the Global Race for Talent.”
Carla Tarazi is a Partner in the San Francisco office of Berry Appleman & Leiden LLP.
The U.S. State Department has removed updates to the Foreign Affairs Manual (FAM) for consular officers that added stricter language for adjudicating blanket L petitions.
Background: Blanket L petitions are commonly used by multinational companies transferring large numbers of employees from international offices to a U.S. branch or affiliate office. The blanket petition eliminates the need to file individual petitions for each employee.
Last month, the State Department quietly updated the FAM section that guides consular officers on granting blanket L petitions with the stricter language. Though the stricter language did not clearly change the legal standard regarding the burden of proof for blanket L petitions, its focus on requiring applicants to establish visa eligibility was expected to encourage consular officers to scrutinize blanket L petitions more closely and potentially increase denials.
BAL Analysis: The removal of the stricter language restores previous, longstanding blanket L adjudication policy. It is unclear whether there will be subsequent attempts to tighten the FAM guidelines on blanket L adjudication.