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U.S. Citizenship and Immigration Services announced the final H-1B electronic registration fee rule today and released a pre-publication version of the rule. The official final rule is expected to be published in the Federal Register tomorrow. The rule becomes effective Dec. 9 and contains several details and clarifications in response to public comments submitted during the notice and comment period.
Key points:
Additional details: Although the rule for the H-1B registration fee has been finalized, two additional regulations need to be finalized before implementation that cover the H-1B registration tool and revisions to Form I-129 Petition for Alien Worker. Both proposals are still in their public comment period, which ends tomorrow.
BAL Analysis: The final H-1B registration fee rule is another indication that USCIS aims to introduce the electronic registration system in coming months for FY 2021 cap filings. Employers should anticipate that the system will be in place for the upcoming cap season, and, if so, the mandatory registration period would likely start in early 2020. An implementation time frame, including a designated registration period, would be announced in an upcoming Federal Register notice. BAL is closely monitoring the rollout of the H-1B registration system and will continue to provide updates as information become available.
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.
Acting director of U.S. Citizenship and Immigration Services Ken Cuccinelli discussed the expected rollout of the new H-1B registration system, processing delays, upcoming changes to E-Verify, and other topics at the Society for Human Resource Management’s Global Mobility and Immigration Symposium in Washington, D.C. this week.
Background: In recent months, USCIS has taken steps to implement the H-1B electronic registration system, and has stated its intention to introduce the system in the upcoming cap season, “subject to continued testing of the system.” The American Immigration Lawyers Association recently expressed concerns about the timing of the implementation and asked the agency to complete testing by Nov. 1 to give companies enough time to prepare.
Under the new system, all petitioners must submit an online form for each prospective H-1B employee during a designated period before April 1. USCIS will conduct a lottery to select registrations among the pool, and only successful petitioners will then file full H-1B petitions on behalf of each selected H-1B candidate.
BAL Analysis: Employers are encouraged to begin planning for cap season with the expectation that the H-1B registration system will be in place in early 2020. According to Cuccinelli’s comments, the agency will announce by the end of next month whether it will introduce the H-1B registration system for the upcoming cap season. BAL is closely monitoring developments with the H-1B registration and will report updates to the implementation timeline when information becomes available.
The U.S. State Department has updated its guidance in the State Department Foreign Affairs Manual (FAM) for consular officers with 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.
BAL Analysis: The State Department’s updated guidance does not clearly change the legal standard regarding the burden of proof for blanket L petitions, but the FAM’s new extended focus on requiring the applicant to establish visa eligibility could lead to consular officers scrutinizing these petitions more closely and potentially increasing denials.
President Donald Trump announced Friday that Chad Wolf will head the Department of Homeland Security (DHS) as acting secretary. Wolf, who served as DHS acting undersecretary for policy and as chief of staff to former DHS Secretary Kirstjen Nielsen, will begin his new role later this month.
As acting DHS head, Wolf will oversee many of the agencies responsible for administering the country’s immigration programs, including legal immigration under U.S. Citizenship and Immigration Services, border controls under U.S. Customs and Border Protection, and interior immigration enforcement under Immigration and Customs Enforcement. Wolf will replace Acting Secretary of Homeland Security Kevin McAleenan, who announced his resignation last month.
U.S. Citizenship and Immigration Services announced last week that it has expanded its online filing services to more petition types.
The following petitions types may now be filed online:
Background: USCIS began providing electronic filing options for certain forms in May and will gradually expand the option to more forms. To file online, applicants must create an online account at myaccount.uscis.dhs.gov.
BAL Analysis: The expansion of online filing provides additional options for applicants to file and track their case, communicate with USCIS and respond to requests for evidence.
A federal court in Oregon has temporarily blocked President Donald Trump’s proclamation that would deny immigrant visas to applicants on the basis of their ability to cover their health costs. The court issued the temporary restraining order Saturday, a day before the proclamation was to take effect.
Background: President Trump issued the proclamation on Oct. 4, to take effect Nov. 3. Immigrant visa applicants would be denied visas unless they could prove they would be enrolled in an “approved” plan or could pay for their medical costs. The types of “approved” health plans listed in the proclamation were limited to: an employer-sponsored policy, Medicare, an individual unsubsidized policy, a catastrophic plan, a family member’s plan, a short-term or visitor plan that covers the duration of the immigrant’s stay, and other plans deemed to provide adequate coverage by the Secretary of Health and Human Services.
The State Department issued an emergency notice and a draft of its health insurance questionnaire on Oct. 29. The lawsuit was filed the next day by the American Immigration Lawyers Association, a nonprofit organization and seven U.S. citizens with approved immigrant petitions for family members who would likely be denied visas under the proclamation.
The court found that at this early stage of the lawsuit, the families were likely to prove that the proclamation conflicts with the Immigration and Nationality Act’s public charge provisions and decades of agency interpretation and that the families would be irreparably harmed if they were separated because of the denial of a visa to which they would otherwise be entitled.
BAL Analysis: The order temporarily halts the proclamation, and, for now, immigrant visa applicants will not be subject to the new questionnaire or the new criteria of proving their ability to pay healthcare expenses. The court will decide within 28 days whether to issue an injunction that blocks the proclamation for the duration of the lawsuit.
Foreign nationals interested in entering the fiscal year 2021 Diversity Immigrant Visa Program are reminded that registration ends Tuesday, Nov. 5, 2019 at noon EST.
Background: In order to qualify, registrants must have been born in an eligible country and meet educational or work requirements. Nationals of the following countries will be ineligible to apply for DV-2021: Bangladesh, Brazil, Canada, China (mainland-born), Colombia, Dominican Republic, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Nigeria, Pakistan, Philippines, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam. People born in Hong Kong SAR, Macau SAR, and Taiwan are eligible.
A new requirement for the 2021 Diversity Immigrant Visa Program is that the principal registrant (not family members) must have a passport and enter a passport number. Exempted are nationals of communist-controlled countries who are unable to obtain a passport, stateless individuals and those who have received a waiver from the U.S. government. Registrants must also have at least a high school education or its equivalent, or have worked two of the previous five years in an occupation that requires a minimum of two years of training or experience.
BAL Analysis: Those interested in entering the lottery should review the State Department’s Diversity Visa Instructions page. Heavy demand may cause delays on the E-DV website, and interested individuals are encouraged to register as soon as possible. Registration is free, and registrants should be aware of scams that target those attempting to register for the program.
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.
The Department of Homeland Security announced Friday that it will extend work authorization for beneficiaries of temporary protected status (TPS) from El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan.
Employment Authorization Documents will be extended through Jan. 4, 2021.
DHS will also extend the validity of Forms I-797, Notice of Action; and Forms I-94, Arrival/Departure Record, through Jan. 4, 2021.
Background: The Trump administration has moved to end TPS designations for the countries listed above, but its efforts have been temporary halted in court. DHS said it was extending work authorization to remain in compliance with injunctions and a court order from federal courts in California and New York. The government announced the extension for TPS holders from El Salvador earlier this week; a notice scheduled for publication on Monday will cover TPS holders from the five other countries as well. Additional information is available on the U.S. Citizenship and Immigration Services TPS website.
BAL Analysis: The automatic extensions will allow TPS holders from El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan to work in the United States through Jan. 4, 2021. TPS remains in place at this time for eligible nationals of each of the six countries. BAL will continue following the litigation and will provide additional updates as information becomes available.
A group of immigrant rights organizations has filed a lawsuit to stop 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. For now, the new requirement is expected to take effect Sunday, Nov. 3.
BAL Analysis: The State Department is expected to start requiring the new form on Nov. 3, but it remains to be seen whether the litigation will be successful in blocking implementation. The proclamation does not apply to nonimmigrant visa applicants or those entering the U.S. by means other than an immigrant visa, including lawful permanent residents. BAL will provide updates on the litigation, including the possibility that implementation of the proclamation will be delayed.
The U.S. State Department has published a draft questionnaire to collect information from visa applicants applying at U.S. Consulates abroad to determine their potential ineligibility under the agency’s new public charge rule. The agency has stated that it will not implement this regulation until the form is finalized and approved by the Office of Management and Budget. No changes to case preparation are required at this time.
Background: The State Department issued an interim final public charge rule Oct. 11 that was scheduled to take effect Oct. 15, but has delayed implementation while it works to finalize the visa questionnaire. Last week, the agency published a proposal that only summarized the questionnaire. The full draft questionnaire was published Wednesday. The rule is subject to a 60-day public comment period ending Dec. 23, 2019. Thereafter, the questionnaire will be sent to the Office of Management and Budget for review, a process that could take months to complete. A similar public charge regulation issued by the Department of Homeland Security that would apply to green card applicants in the U.S. has been temporarily blocked by five federal courts.
BAL Analysis: It is important to note that the State Department rule is not yet being enforced, and the draft form is not yet required at this time. If implemented, the detailed questionnaire will add significant time to visa applications and is likely to further slow down processing, as well as pose ineligibility issues for a greater number of visa applicants. The State Department rule and questionnaire are likely to be challenged in court, and implementation could be blocked by courts. BAL is closely monitoring these developments and will report new information as it becomes available.