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U.S. Citizenship and Immigration Services has announced that it will close its field office in Moscow next month due to a significant decrease in demand.
Key points:
BAL Analysis: Employers with personnel traveling between Russia and the U.S. and requiring visa and other immigration services previously obtained through the USCIS office in Moscow should plan to use the USCIS office in Athens after Feb. 28. Individuals submitting certain petitions, including U.S. lawful permanent residents submitting applications for travel documents, family-sponsored immigrant petitions or naturalization applications should follow the filing instructions on the USCIS website. Additional information is available on the websites of the U.S. Embassy in Moscow and the USCIS office in Athens.
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.
Foreign students are drawing increased scrutiny from U.S. Citizenship and Immigration Services (USCIS) and Immigration and Customs Enforcement (ICE) regarding their use of two programs, Curricular Practical Training (CPT) and Optional Practical Training (OPT), which allow them to work legally for employers in approved training programs.
BAL Analysis: Universities, F-1 students and companies that employ students through the CPT and OPT programs should be aware of the enhanced scrutiny and prepare for requests for evidence for students seeking to change their status from F-1 to H-1B.
IMPACT – HIGH
On August 9, 2018, U.S. Citizenship and Immigration Services (USCIS) issued the final policy memo clarifying procedures for the accrual of unlawful presence for foreign students and exchange visitors. Foreign students and exchange visitors in F, J or M status are reminded that new rules on the calculation of unlawful presence took effect Aug. 9, 2018. This means the potential bars for inadmissibility for accruing 180 days or more of unlawful presence from that date would be triggered on Feb. 5, 2019.
Background: The initial policy memo issued in May 2018 by USCIS changed the way the agency calculates unlawful presence for nonimmigrants in F (student), M (vocational student), and J (exchange visitor) status. These individuals will accrue unlawful presence if they fail to maintain status, and unlawful presence will be counted from the day after they violate their status. Under previous longstanding policy, unlawful presence was not triggered for students (who are admitted for “duration of status” rather than for a specific time period) until the government determined that the individual was out of status. Although comments opposing the change were provided to USCIS, the final policy change was issued in August 2018. In October 2018, a group of colleges and universities challenged the policy in court, but it remains in effect today as the lawsuit continues to progress.
BAL Analysis: F, J and M nonimmigrants and their employers should be careful to avoid any unlawful presence triggers and to track any time that could be deemed failure to maintain status. Those who have failed to maintain status since Aug. 9 may consider filing for reinstatement if they are within five months of having fallen out of status. Individuals who are approaching 180 days of unlawful presence would need to depart the U.S. before Feb. 5 to avoid the three-year re-entry bar.
Venezuelan consular services have been suspended in the U.S.
Background: Venezuelan President Nicholas Maduro announced Jan. 23 he was cutting diplomatic ties with the U.S. and expelling all U.S. consular staff. The following day he announced that the Venezuelan Embassy and all consulates in the U.S. would be closed.
BAL Analysis: Applicants in the U.S. seeking Venezuelan consular services, including U.S. nationals and others applying for Venezuelan visas as well as Venezuelan nationals seeking travel documents from their embassy or consulates in the U.S., should anticipate a potentially lengthy suspension in services and plan accordingly.
The Department of Homeland Security has posted the final H-1B lottery regulation that is expected to be published in the Federal Register on Thursday. The regulation reverses the order in which the agency selects H-1B cap-subject petitions to increase the number of advanced-degree holders selected and requires H-1B petitioners to file an online registration for each individual they seek to sponsor for an H-1B visa subject to the annual cap.
Key time frames:
BAL Analysis: DHS has decided not to implement the mandatory online registration system immediately in response to public comments and concerns that the system would not be fully tested and operational for the upcoming cap season. Employers should plan for the cap season as they normally would, as they will not be required to submit online registration forms this April. BAL will provide additional analysis in the coming days following publication of the final regulation.
The Department of Homeland Security (DHS) is expected to take steps toward proposing a regulation to rescind the Obama-era regulation that allows H-4 spouses of certain H-1B employees to apply for employment authorization documents (EADs) no later than March 18. Based upon ongoing litigation challenging the H-4 EAD rule, the court took the case out of abeyance and set a new briefing schedule requiring DHS to inform the court on their progress/plan for addressing the rule.
Background: The Obama-era H-4 EAD regulation currently allows spouses of certain H-1B employees to apply for employment authorization and has benefited more than 800,000 spouses. The Trump administration has repeatedly stated its intention to repeal the regulation, but its timeline for doing so has only been indicated through court filings in the ongoing case, Save Jobs USA v. Department of Homeland Security.
The lawsuit, filed by a group of American tech workers, challenges the current H-4 EAD rule as unlawful. DHS has kept the case on hold for several months by successfully arguing to the court that it is in the process of repealing the rule, making the case moot. After repeatedly holding the case in abeyance, the U.S. Court of Appeals for the D.C. Circuit removed the abeyance on Dec. 17, 2018 and ordered a trial briefing schedule. On Jan. 23, the court updated the schedule which requires DHS to submit its brief by March 18.
BAL Analysis: Normally, DHS would want to show progress on rulemaking before submitting its brief. At this time, DHS has not yet submitted its notice of proposed rulemaking to the White House Office of Information and Regulatory Affairs, the first step in the rulemaking process. BAL anticipates that DHS will at least initiate the rulemaking process by March 18 and the regulation would thereafter take several months to finalize. Employers are reminded that the current H-4 EAD rule remains in place at this time.
The proposed U.S. Citizenship and Immigration Services (USCIS) regulation that will revamp the selection process for H-1B cap petitions has cleared the Office of Management and Budget, the last stage before the rule becomes final.
BAL Analysis: USCIS has pursued an aggressive timeline to finalize the rule before the upcoming cap season. Nevertheless, while it is likely that the agency will be able to implement the provision that would reverse the order of the lottery, it remains unclear whether the agency will apply the online pre-registration requirement to the cap filing season that opens on April 1. Public statements by agency officials suggest that USCIS may delay implementation of the registration system beyond this year’s cap season. Companies should continue to prepare for the upcoming H-1B cap season as they normally would. BAL is closely following the rule and will report details when the final regulation is published.
The E-Verify system has resumed operations, following the temporary budget resolution passed by Congress last Friday, and a new deadline has been set for submission of E-Verify queries for new employees hired during the government shutdown.
Key points for employers:
For TNC cases referred after E-Verify resumed operations, employers should not add days to the Referral Date Confirmation. If an employee decided to contest the TNC when E-Verify was unavailable, the employer should now refer the case and follow the TNC process.
BAL Analysis: Employers should observe the Feb. 11, 2019 deadline for submitting E-Verify cases and follow instructions for TNCs. The system is likely to experience high demand in the coming days and employers should plan for lengthier processing times. The full announcement on the resumption of services can be viewed here.
President Trump announced Friday that he and lawmakers have reached an agreement to end the 35-day partial shutdown of the federal government and reopen it until Feb. 15, while a committee composed of lawmakers from both parties negotiates a border security plan.
BAL Analysis: Immigration-related services that were suspended during the shutdown will resume, but the stop-gap measure merely postpones the budget debate for three weeks.
U.S. Citizenship and Immigration Services announced today that premium processing will resume Jan. 28 for all H-1B cap petitions for fiscal year 2019.
Background: Premium processing allows petitioners to request faster service for an additional government fee. USCIS must respond within 15 days or refund the fee. The agency announced the suspension of premium processing for H-1B cap petitions just before filing season began, and in August, extended the suspension and expanded its scope to encompass nearly all H-1B petitions. At that time, USCIS had indicated that the suspension would last until Feb. 19, 2019.
BAL Analysis: The resumption of premium processing is good news for employers, especially those concerned that the lengthy processing times would require them to put their H-1B employees on unpaid leave. Employers should assess which employees need their H-1B petitions to be expedited and request premium processing for those cases as soon as possible. USCIS is reminding petitioners who request premium processing that if their petition was subject to a request for evidence (RFE), they must include any responses to the RFE with their premium processing request.