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Priority-date cutoff dates for most employment-based categories will advance modestly next month, according for the Final Action Dates chart published in the April 2019 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 last month. The EB-4 category will remain current for April for all countries except El Salvador, Guatemala and Honduras, which will be subject to a March 8, 2016 final action date, and Mexico, which will be subject to an April 1, 2018 date. In the EB-5 category, final action dates will remain current in April for all countries except China I5 and R5, which will be subject to a Sept. 15, 2014 final action date, and Vietnam I5 and R5, which will be subject to an Aug. 22, 2016 final action date.
Application Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for April. Applicants seeking to file for adjustment of status are reminded that the chart does not take effect unless U.S. Citizenship and Immigration Services (USCIS) 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 April.
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.
According to a practice alert issued by the American Immigration Lawyers Association on Wednesday, U.S. Citizenship and Immigration Services is expected to make a separate announcement regarding premium processing availability for the upcoming fiscal year 2020 H-1B cap season.
The practice alert follows USCIS’ announcement on Monday that premium processing would resume the next day, March 12, for “all H-1B petitions.” AILA contacted USCIS Service Center Operations for clarification as to whether the announcement covered the upcoming cap season and was told that the details about the H-1B cap season would be addressed in another announcement.
Key points:
BAL Analysis: The conflicting information has caused confusion for companies preparing for H-1B cap season. Until there is an official announcement by USCIS, premium processing is available for all H-1B petitions. Not all employers will necessarily seek premium processing for all H-1B cap petitions, and companies should work with their BAL professional to weigh considerations, such as cost, timeliness, and the recurring unavailability of premium processing for their program.
U.S. Citizenship and Immigration Services (USCIS) announced Monday that starting tomorrow, March 12, 2019, it will resume premium processing for all H-1B petitions.
Background: Premium processing allows petitioners to request faster service for an additional government fee. USCIS must respond within 15 days or refund the fee. USCIS suspended premium processing for H-1B cap cases just before fiscal year 2019 cap season opened in April 2018. In August 2018, the agency expanded the suspension to encompass nearly all H-1B petitions. On Jan. 28, 2019, USCIS lifted the suspension on premium processing for FY2019 H-1B cap subject-petitions only. On Feb. 19, 2019, the agency lifted the suspension on non-cap H-1B petitions filed before Dec. 22, 2018. The agency is now lifting the suspension for all H-1B cases.
BAL Analysis: The resumption of premium processing is good news for companies as it appears at this time that premium processing will be available for H-1B cap-subject petitions filed when cap season opens April 1. The number of filings is expected to be high again this season and the numerical caps are likely to be reached in the first week of filing. Employers are encouraged to work with their BAL professional to ensure that cases requiring premium processing are identified and requests are prepared in time for filing season.
The Secretary of Homeland Security announced the extension of the Temporary Protected Status (TPS) designation for South Sudan for 18 months through Nov. 2, 2020.
Background: South Sudan was originally designated for TPS status on Nov. 3, 2011 and was redesignated for TPS in 2014 and 2016. The Secretary has determined that the conditions supporting the TPS designation, including ongoing armed conflict, continue to exist in the country. There are 84 South Sudan TPS holders in the United States.
BAL Analysis: South Sudan TPS holders should not file any forms until the reregistration period opens and instructions are announced. BAL will report the re-registration details for current South Sudan TPS holders when the instructions are published.
The Labor Department has posted processing times current as of Feb. 28 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: Applications filed in November and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in August and earlier, and appeals filed in November and earlier are being reviewed for reconsideration.
Average PERM processing times in February:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in October and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in January and earlier for H-1B and PERM cases. Center director reviews are being conducted on appeals filed in December 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 February:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
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 November and earlier and is seeing PWDs for requests filed in October and earlier.
Copyright © 2018 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 will publish the new version of Form I-539 Application to Extend/Change Nonimmigrant Status on Friday and will allow a grace period until March 21 for the previous version of the form to be received by the agency.
Form I-539 is required for change or extension of status for certain visa holders and for derivative family members of nonimmigrant visa holders, including H-4 spouses of H-1B workers. The new version introduces a mandatory biometrics appointment process and biometrics services fee.
Background: Form I-539 Extend/Change Nonimmigrant Status is filed by dependents of nonimmigrant visa holders, including H, L, E, O and others such as B-1/B-2 visitors, as well as individuals changing to F, J or M status.
USCIS originally announced that the new version would be available March 11 and take effect immediately, but will now publish the form earlier and provide a grace period.
The new form introduces biometrics appointments. Each applicant and co-applicant must pay an $85 biometrics fee when filing the form, and will receive a notice scheduling an appointment for their biometrics (digital photo and fingerprints) to be taken at their nearest USCIS application support center.
A new Form I-539A, Supplemental Information for Application to Extend/Change Nonimmigrant Status will also be released on Friday, replacing the current Supplement A. Each family member of the primary Form I-539 applicant must sign and submit a separate Form I-539A, and the forms must be submitted together.
BAL Analysis: The two-week grace period provides additional time for nonimmigrant visa holders to file the current edition of Form I-539, but the grace period will end on March 21, before H-1B cap season opens on April 1. As a result of the short time frame, employers may choose not to file the new Form I-539 simultaneously with their H-1B cap petitions and would instead wait for a receipt notice for H-1B petitions before filing the I-539 forms for the employee’s derivative family members. Applicants are reminded that the biometrics procedures are new and may delay processing of the I-539 and concurrently filed applications for employment authorization documents.
The recent sting operation conducted by Immigration and Customs Enforcement (ICE) to catch foreign students that illegally secure Curricular Practical Training, or CPT, serves as a poignant reminder to employers about the potential pitfalls of hiring or continuing to employ these students.
In its undercover investigation, ICE set up a phony university, a Michigan-based school called the University of Farmington, that advertised “innovative” CPT programs for STEM (science, technology, engineering and math) graduates and offered enrollment with flexible classes that would not disrupt their careers. Prosecutors allege, however, that this fake university was a “pay-to-play” scheme that allowed foreign students to continue to live and work in the United States without satisfying the normal requirements that the immigration laws impose on all students seeking CPT.
This is not the first time that the government has leveraged this type of scheme. In 2013, the Department of Homeland Security created the University of Northern New Jersey to investigate foreign student visa fraud. The government has also raided legitimate schools it suspected of abusing the CPT process. In July 2011, for example, ICE raided the former University of Northern Virginia because it suspected that the school was issuing CPT to foreign students without following legal requirements.
Foreign students who secure CPT from these questionable programs face criminal charges and loss of lawful status, which puts them at risk for deportation. The question not addressed so far, however, is the potential liability of their employers. Ordinarily, employers that rely on a student’s CPT documentation should not be subject to civil or criminal liability, as long as the documentation reasonably appears to be genuine, and they have no reason to suspect the student secured the documentation unlawfully. Nevertheless, the widely disseminated news regarding ICE operations targeting fake universities or suspected violators could lead government authorities to assert that an employer knew or should have known that some documentation was illegally procured.
It is also important to note that employers referring candidates or employees to other employees who secured CPT in this manner may risk liability for aiding or abetting immigration violations. Likewise, employers that provide letters in support of such candidates for submission to the government may face liability for having made a false statement.
The bottom line is that employers need to devote more due diligence to all aspects of employing F-1 students under the CPT and Optional Practical Training (OPT) programs as part of their immigration compliance efforts.
Robert S. Groban, Jr., is a Partner and manages the New York 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.
The Department of Homeland Security’s Office of Inspector General has issued a fraud alert warning of a telephone and email scam. The scheme involves individuals who pose as law enforcement or immigration officials who seek to either obtain personal information by telling the victim that their identity has been stolen or collect payments by threatening individuals with arrest unless they pay fines using various payment methods.
BAL Analysis: Scams targeting immigrants have become common around the world, and some scams target immigrants in particular by spoofing official phone numbers and impersonating immigration authorities. Individuals receiving such calls should hang up and not provide any person information. Victims of scams may call the DHS OIG hotline (1-800-323-8603) or file a complaint on the agency’s website and with the Federal Trade Commission (1-877-382-4357).
The Department of Homeland Security has published a notice in the Federal Register announcing that it will further extend temporary protected status, or TPS, for El Salvador, Haiti, Nicaragua and Sudan in order to comply with a temporary injunction in an ongoing lawsuit.
Background: Following the secretary of Homeland Security’s decisions in 2018 and early 2019 to end TPS for six countries, several families filed a lawsuit challenging the legality of the decision for four of the countries: El Salvador, Haiti, Nicaragua and Sudan.
On Oct. 3, the court enjoined DHS from terminating the program and ordered the agency to maintain the TPS program for the four countries while the lawsuit proceeds. To comply with the order, DHS took steps on Oct. 31 to maintain the TPS designation for the four countries and to extend employment authorization documents for Nicaragua and Sudan through April 2, 2019 because TPS was soon to expire for those countries. Today’s DHS announcement covers all four countries, provides a further extension, and explains how the agency will move forward, depending on whether and how long the injunction remains in place.
The case is Ramos v. Nielsen, U.S. District Court for the Northern District of California, No. 18-CV-01554. A separate lawsuit was recently filed by TPS holders challenging the termination for Honduras and Nepal.
BAL Analysis: Employers should be aware of the automatic extension and refer to the Federal Register notice for instructions on determining which employment authorization documents are automatically extended and how it affects Form I-9 employment eligibility verification, E-Verify and the USCIS Systematic Alien Verification for Entitlements (SAVE) processes.
U.S. Citizenship and Immigration Services (USCIS) has released data from the previous four fiscal years on H-1B adjudications, including H-1B approval rates, the percentage of cases receiving requests for evidence (RFEs) and the most common reasons RFEs were issued.
Key facts and figures:
BAL Analysis: The statistics confirm that the agency has taken a harder line on H-1B petitions since President Trump issued the “Buy American and Hire American” Executive Order. Employers should prepare for the upcoming H-1B cap season knowing that RFEs are being issued with greater frequency and denials are also increasing. The data also show that for H-1B adjudications USCIS completed within fiscal 2018, tech employers enjoyed higher approval rates than IT consulting companies.