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Employers are encouraged to continue preparing for H-1B cap season as they normally would, even though U.S. Citizenship and Immigration Services proposed a regulation earlier this month that would significantly change the H-1B cap lottery process.
The proposed regulation calls for USCIS to (1) make changes to the lottery process that would increase the odds that advanced-degree holders will be selected, and (2) introduce a new mandatory online registration system for employers who sponsor H-1B candidates. While USCIS is working to implement the regulation in time for the upcoming H-1B cap season, it is not yet clear whether the agency will meet this timeline. In the meantime, employers are encouraged to take the steps they normally would under the lottery procedures currently in place ahead of April 1, 2019, the first day of filing.
Here are some steps employers can take now:
BAL Analysis: Demand for H-1B visas is expected to be high again this year, and will likely easily eclipse the annual limits of 65,000 cap-subject visas for undergraduate-degree holders and an additional 20,000 for those holding advanced degrees from U.S. educational institutions. Employers and individuals can maximize their chances of filing within the first week of April by planning early. BAL will continue to follow the implementation of the proposed regulation and will alert clients if they need to do anything differently in their H-1B planning this year. An FAQ on the proposed changes to the lottery is available here. Members of the public may submit comments to the government regarding the proposed rule until midnight Wednesday, Jan. 2.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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.
The federal government appeared headed for a partial shutdown Friday as lawmakers could not reach agreement on President Donald Trump’s $5.7 billion request for a border wall.
Some federal agencies are already funded for fiscal year 2019, but funding for other agencies, including the Department of Homeland Security (DHS), will lapse if a measure is not passed by midnight Friday. In the event of a shutdown:
BAL Analysis: BAL will continue following events in Washington, D.C., and will provide clients with an update on the outcome of negotiations. A detailed BAL FAQ on how a government shutdown would affect immigration programs is available here.
U.S. Citizenship and Immigration Services (USCIS) and other federal government offices will be closed Dec. 24 after President Donald Trump signed an executive order this week making Christmas Eve a federal holiday for employees this year.
Applicants who had appointments for interviews or biometrics on Dec. 24 will automatically have their appointments rescheduled. Applicants who had InfoPass or other appointments scheduled are asked to reschedule them on their own as soon as possible.
USCIS and other federal government offices will also be closed Dec. 25 for Christmas and Jan. 1 for New Year’s Day. Up-to-date information on USCIS office closures is available on this website.
The U.S. Social Security Administration has said it will resume sending educational notifications, commonly called “mismatch” or “no-match” letters, to employers when employee name and social security information does not match federal records.
Employers who receive such letters are expected to take steps to resolve discrepancies. SSA provides sample notices and instructions on its website. The sample notice states that the employer “should not use this letter to take any adverse action against an employee,” and lists steps the employer should take.
The practice of sending mismatch letters had been placed on hold, but SSA said on its website that beginning in the spring it “will notify each employer with at least one W-2 form where the name and SSN do not match our records and that corrections are needed.”
BAL Analysis: The plans to resume sending mismatch letters are in line with the Trump administration’s efforts to combat illegal work in the U.S., and employers can face penalties if they do not take steps to address these issues once the government sends a notice. Employers who receive a mismatch letter are urged to contact BAL as soon as possible to determine the best course of action and make sure discrepancies are properly resolved.
Portions of the federal government will shut down at midnight Friday unless lawmakers come to an agreement on either a budget or short-term spending measure. Some federal agencies are already funded for fiscal year 2019, but funding for other agencies, including the Department of Homeland Security, will lapse if a measure is not passed. Immigration has been a key sticking point in budget negotiations, with President Donald Trump pushing for funding for a wall on the U.S.-Mexico border. In the event of a shutdown:
A detailed BAL FAQ on how a government shutdown would affect immigration programs is available here.
Background: Congress passed a two-week spending measure Dec. 6, temporarily avoiding a shutdown of the federal government. Lawmakers have not yet agreed on a spending proposal, however, and a partial shutdown is once again just days away. The White House backed away from a demand that any budget measure include at least $5 billion for the wall, but continues to push for at least some wall funding and other border security measures. It is not yet clear whether Congress will agree to the plan that the Trump administration supports.
BAL Analysis: BAL will continue following events in Washington, D.C., and will provide clients with an update on the outcome of negotiations.
The Labor Department has posted processing times current as of Nov. 30 for permanent labor certification (PERM) applications and prevailing wage determination (PWD) requests.
PERM Processing: Applications filed in September and earlier are now being adjudicated, according to the department. Audit reviews are being conducted on applications filed in May and earlier, and appeals filed in October and earlier are being reviewed for reconsideration.
Average PERM processing times in November:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in August and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in October and earlier for H-1B and PERM cases. Center director reviews are being conducted on appeals filed in October 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:
The Labor Department reports PERM and PWD processing time frames on its iCERT page.
BAL Analysis: BAL’s internal case tracking is mostly consistent with the Labor Department’s published processing times. BAL is seeing approvals for PERM applications filed in September and October and is awaiting PWDs for requests filed in August and earlier.
U.S. Citizenship and Immigration Services (USCIS) has announced that for adjustment of status applications they will use the Dates for Filing Chart, which is below, rather than the Final Action Dates, for January. Priority-date cutoffs for all EB-1 categories will advance based on Final Action Dates in January, according to the State Department’s January Visa Bulletin. Except for a one-week advancement in the Philippines EB-3 category, all other priority-date cutoffs will remain the same as in December.
Key movements based on Final Action Dates:
EB-1
Additional notes: The EB-4 category for religious workers (other than ministers) and the EB-5 Regional Center (I5 and R5) Immigrant Investor program were renewed on Dec. 7 by Congress under a temporary spending measure that funds Department of Homeland Security operations until Dec. 21, 2018.
Application Final Action Dates for Employment-Based Preference Cases:
Dates for Filing
The State Department also released its Dates for Filing chart for January and USCIS has confirmed via a web posting that it will follow the Dates for Filling chart in determining filing eligibility for adjustment of status applicants. Employment-based applicants whose priority date is before the date in the chart below are eligible to file for adjustment of status in January.
Key movements:
Application Dates for Filing for Employment-Based Preference Cases:
Earlier this week, U.S. Citizenship and Immigration Services published a proposed regulation that would significantly reform the H-1B cap selection (lottery) process. The proposed regulation would introduce two main changes: (1) USCIS would reverse the order of the regular and advanced-degree lotteries to increase the likelihood that individuals holding U.S. advanced degrees would be selected, and (2) USCIS would introduce a mandatory online registration system for employers seeking to sponsor H-1B candidates under the annual cap.
BAL has produced an FAQ on the proposed regulation and how employers should prepare for the upcoming cap season.
Read the full FAQ here.
Congress passed a two-week spending measure on Thursday, Dec. 6, avoiding a shutdown of the federal government. President Donald Trump is expected to sign the continuing resolution, which funds the government at current levels through Dec. 21.
Republicans and Democrats may find themselves facing a shutdown again in two weeks if they cannot come to terms on spending priorities—including Trump’s request for $5 billion to build a wall on the U.S.-Mexico border. In the event of a shutdown, many government functions, including some related to immigration would be suspended.
The stopgap measure extends a number of immigration programs that would otherwise have sunset on Friday, including E-Verify, the EB-5 Immigrant Investor program, the Special Immigrant Religious Worker program and the Conrad 30 Waiver program for foreign doctors.
BAL Analysis: Congressional approval of the stopgap spending measure eliminates the possibility of a government shutdown at the end of the week. However, the short-term extension does not resolve disagreements on the budget, including what Congress should do about Trump’s request for wall funding. BAL continues to track the various immigration benefit and enforcement amendments that may be added to the Appropriations bill to resolve the disagreements.
U.S. Citizenship and Immigration Services offices will be closed across the country Wednesday as part of a national day of mourning to remember the life of former President George H.W. Bush, who died last week.
USCIS said in a statement that it would “reschedule naturalization ceremonies and interviews and will promptly notify applicants of their new scheduled date.” The agency said that applicants with biometrics appointments will receive a new appointment notice within three weeks.
The USCIS Contact Center will be open Wednesday from 8 a.m. to 9 p.m. EST, but live help will be limited. Up-to-date information on USCIS office closures is available on this website.