Search
Contact
Login
Share this article
U.S. Citizenship and Immigration Services published notices in the Federal Register today that indicate the agency is creating an H-1B Registration Tool and will revise Form I-129, Petition for Nonimmigrant Worker, used to apply for the H-1B visa, to reflect the addition of the registration requirement.
Key Points:
BAL Analysis: The Federal Register notices indicate that USCIS is working to put in place the H-1B registration tool for next April’s H-1B cap season. USCIS is expected to finalize the registration tool following a comment period that ends Aug. 26. BAL is closely monitoring the issue and will provide updates as more information becomes 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.
U.S. Citizenship and Immigration Services is expected to close all of its international field offices in the next nine months and has already begun limiting services abroad.
Key points:
USCIS Eastern Forms Center Attn: I-407 unit 124 Leroy Road PO Box 567 Williston, VT 05495
BAL Analysis: USCIS has already begun to limit services at its international field offices, and additional restrictions should be expected in the coming months, even for offices that will remain open until March. U.S. consulates and USCIS offices within the U.S. will share workload as USCIS offices abroad shut their doors. Those outside of the United States who are in need of USCIS services are encouraged to work closely with BAL in the coming months to determine their best filing options.
Employers in today’s workplace regularly review a potential candidate’s online profiles when making a hiring decision. Much like the modern job seeker, visa applicants should now expect the same screening from the U.S. government. Thanks to a new section the State Department has quietly added to the online visa application form (DS-160), the U.S. government is now able to access troves of additional information about visa applicants. The DS-160 now requires visa applicants to select all the social media platforms they have used in the previous five years and disclose all usernames, screen names and handles. The drop-down list contains 20 of the most popular social media and online platforms.
While the social media questions may be a surprise to visa applicants, the State Department has been in the process of implementing this change for some time. As part of the “extreme vetting” of visa applicants pursuant to President Trump’s 2017 travel ban and “Buy American and Hire American” executive orders, the department introduced a supplemental questionnaire for some applicants that requested extensive family, travel and employment histories, as well as all social media activity in the previous five years. The department has been weighing whether to require all visa applicants to fill out the supplemental form, and the addition of the social media question as a required question may be the first step.
For visa applicants, disclosing their social media usernames carries broad implications. Visa applicants should now assume that the State Department, as well as U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs & Border Protection (CBP), have access to any information that is publicly available on their social media accounts, such as where they live and work, where they have traveled, where they worship, who their friends and coworkers are, their affiliations, and anything else that could be gleaned from their online musings. Something as forgettable as a “liked” photo of a friend’s dog may end up in a government database.
Though the DS-160 form only applies to new visa applicants, existing visa holders are continuously screened to verify that they remain eligible to travel to the U.S. Recently, there have been reports of individuals having their employment-based visas revoked when returning from travel outside the U.S. after CBP officers pulled up their professional profile online and found inconsistencies with the type of work allowed by their visa. CBP searches of electronic devices have surged, and under a 2018 policy, officers who determine that an advanced search is required can conduct a forensics search of a phone, laptop or other mobile device that accesses and downloads information beyond what is publicly available.
Individuals should be prepared during their visa or green card interview to answer questions about information on their social media accounts and address any potential inconsistencies. Employees should review their social media presence and make sure that their professional qualifications, educational background, employment histories, and job description are accurate and do not conflict with the terms of their visas. Additionally, employees may want to update their profile settings to make their online presence private.
HR departments should also consider putting in place policies warning employees that their social media activity may be requested and screened when applying for visas or other immigration benefits.
Matthew D. Gross is a Senior Associate in the Dallas office of Berry Appleman & Leiden LLP.
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.
IMPACT – MEDIUM
U.S. Citizenship and Immigration Services has announced that next month it will only accept employment-based adjustment-of-status applications based on the Final Action Dates chart that was publish in the State Department’s July Visa Bulletin.
The Dates for Filing chart will not apply. Employment-based immigrants must follow the Final Action Dates chart (below) to determine filing eligibility. Only applicants with priority dates earlier than the dates listed in the chart will be permitted to file their applications for adjustment of status in July.
Application Final Action Dates for Employment-Based Preference Cases:
USCIS also announced that family-based immigrants will be permitted to use the Dates for Filing chart that is applicable to family-sponsored immigrants in July. The Dates for Filing chart for family-based immigrants was also published in the July Visa Bulletin.
U.S. Citizenship and Immigration Services is in the process of restructuring its U.S.-based district offices and field offices.
The agency will be reducing the number of district offices, thereby allowing the workload to be reassigned and shared equally among the field offices. As a result, green card and naturalization applicants may need to travel farther than their normal jurisdiction to attend their interviews. Additionally, they may receive other notices, such as requests for evidence, from a field office other than where they filed. Biometrics appointments, however, will not be affected and applicants will continue to go to their nearest application support center.
The agency said that the changes are meant to decrease processing times and make them more consistent among different field offices, as the volume of work has increased sharply in recent years. The number of applications received rose 15.6% from fiscal year 2016 to 2017, and 25.5% from fiscal 2015 to 2016, according to the agency.
BAL Analysis: The restructuring should even out workloads among field offices so that wait times for green card and naturalization interviews decrease overall. However, applicants should take special note of the interview location on their appointment notice and be prepared to travel if it is scheduled outside their normal jurisdiction.
President Donald Trump issued a memorandum last month directing federal agencies to enforce laws that restrict the ability of immigrants to receive federal benefits, including a law that requires sponsors to reimburse the government for means-tested benefits that immigrants receive. Ken Cuccinelli, acting director of U.S. Citizenship and Immigration Services (USCIS), issued a statement today indicating that USCIS officers will now be required to remind individuals at their adjustment-of-status interviews of their sponsors’ responsibilities under existing law and regulations.
These actions come as part of the administration’s broader efforts to keep immigrants from becoming a “public charge” after coming to the United States. Last fall, the Department of Homeland Security (DHS) proposed a rule to expand the definition of the public charge ground of inadmissibility under the Immigration and Nationality Act. Under the proposed rule, the types of benefits that DHS officials would consider when determining admissibility would be expanded to include certain non-cash benefits, such as Medicaid prescription drug subsidies, food stamps, and Section 8 housing assistance. A final public charge rule is expected to be published soon.
The subsequent Presidential Memorandum on Enforcing the Legal Responsibilities of Sponsors of Aliens, which was issued May 23, does not change any laws or regulations itself, but directs federal agencies to take actions consistent with the White House’s priorities on federal benefits for immigrants.
BAL Analysis: While it is unclear what actions the federal government will take under Trump’s recent memorandum, the memo is an indication that the Trump administration is prioritizing the public charge issue. The public charge rule has been in the pipeline for months, and a final version is likely to be released soon. A BAL FAQ on the draft “public charge” proposal is available here.
Priority-date cutoff dates will advance modestly or remain the same in employment-based categories next month, according to the Final Action Dates published Thursday in the July Visa Bulletin.
Key movements:
EB-1
EB-2
EB-3
Additional notes: The EB-4 category for religious workers (other than ministers) and the EB-5 Regional Center (I5 and R5) Immigrant Investor Program will be funded through the remainder of the fiscal year under the budget bill President Donald Trump signed in February. The EB-4 category will remain current in July for all categories except El Salvador, Guatemala and Honduras and Mexico, both of which will be subject to a July 1, 2016 final action date. In the EB-5 category, final action dates will remain current in July for all categories except China I5 and R5, which will be subject to an Oct. 1, 2014 final action date, and Vietnam I5 and R5, which will be subject to a May 1, 2017 final action date.
The State Department also released its Dates for Filing chart for July. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services confirms that it does via a web posting in the coming days. BAL will update clients once the State Department confirms whether the chart can be used in July.
The U.S. State Department announced Friday that it will recognize Venezuelan passports for five years past their printed date of expiration.
Background: A number of countries have changed immigration and travel requirements for Venezuelan nationals amid the country’s ongoing political and economic crisis. The U.S. suspended air travel between the two countries last month. The State Department’s action on Friday came after opposition leader Juan Guaidó, whom the U.S. recognizes as Venezuela’s interim president, signed a decree to extend Venezuelan passport validity.
BAL Analysis: The move to extend passport validity will make it easier for Venezuelans to obtain consular services or enter the U.S., especially given delays applicants often face in obtaining passports or other services in Venezuela.
The Labor Department has posted processing times current as of May 31 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: Applications filed in April and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in November and earlier, and appeals filed in February and earlier are being reviewed for reconsideration.
Average PERM processing times in May:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in February and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in May and earlier for H-1B cases and April and earlier for PERM cases. Center director reviews are being conducted on appeals filed in April and earlier for PERM cases. The department reported that it had no center director reviews pending for H-1B cases.
Average times for issuance of prevailing wage determinations in May:
BAL Analysis: BAL’s internal case tracking is consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in April and earlier and is seeing PWDs for requests filed in February and earlier.
U.S. Citizenship and Immigration Services has announced that beginning Monday it will accept requests for premium processing for all fiscal year 2020 cap-subject H-1B petitions.
Background: Premium processing allows petitioners to request 15-day service for an additional fee. USCIS announced on March 19 that it would take a two-phased approach to premium processing for the fiscal year 2020 H-1B cap season, with the first phase for “change of status” petitions and the second phase for all other cap-subject petitions. Premium processing for change of status petitions began on May 20 and remains available.
BAL Analysis: Employers are encouraged to assess their pending H-1B cap cases and consider whether premium processing may be appropriate for any cases where it has not yet been requested.