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U.S. Citizenship and Immigration Services announced Thursday that it received 190,098 cap-subject H-1B petitions during this year’s filing period. The agency also said that it has completed the computer-generated lottery to determine which petitions will be eligible for processing.
BAL Analysis: The number of H-1B petitions easily exceeded the H-1B cap again this year, even as the number of petitions dropped by about 4.5 percent from last year. The odds of success in the lottery are still relatively low, however, and companies may want to consider alternative visa options or overseas assignments for high-skilled employees whose petitions are not selected. Petitions that are selected may face close scrutiny after USCIS sharply increased the number of requests for evidence that it issued last year. Employers should anticipate delays in H-1B cap receipt notices after the agency suspended premium processing for H-1B cap-subject petitions. The suspension is expected to remain in effect until Sept. 10. Please consult with a BAL professional for advice regarding alternatives to the H-1B visa category and other strategic options to fulfill workforce needs.
This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.
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Priority cutoff dates will advance modestly in the China EB-2 and India EB-3 categories, according to the State Department’s May Visa Bulletin. Priority cutoff dates in other key employment-based categories will neither advance nor retrogress.
Key points:
Additional notes: All EB-1 and EB-2 categories other than those for China and India will remain current. The EB-3 categories for El Salvador, Guatemala and Honduras, Mexico and All Other Chargeability Areas will also remain current. The minimal movement in the May Visa Bulletin follows much more significant movement in the April Visa Bulletin.
Application Final Action Dates for Employment-Based Preference Cases:
The State Department also released its Dates for Filing chart for May. 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. USCIS has been using the Final Action Dates chart in recent months, but could opt use the Dates for Filing chart. BAL will update clients once the State Department confirms whether the chart can be used in May.
President Donald Trump on Tuesday announced that Chad would be removed from the list of countries whose nationals face travel restrictions under the current version of his travel ban. The State Department issued a statement saying Chad “has made significant strides and now meets the baseline criteria” to be removed from the list. The restrictions will be lifted Friday.
The travel ban has been enforced since Dec. 8, following the Supreme Court’s decision allowing the administration to enforce the ban while challenges to its legality play out in the courts. The Court will hear arguments on the merits of the challenges April 25. A ruling is expected no later than June.
The latest version of Trump’s travel ban was issued in September after two earlier versions were met with resistance in the courts. With Chad’s removal, the current ban applies to nationals of Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. Exact restrictions are specific to each country, and the ban has not dramatically expanded the number of employees subject to travel restrictions for most companies.
The ban on Chad only related to travel on immigrant visas as well as nonimmigrant visas in the B-1 and B-2 classifications. In fiscal year 2017 Chad nationals only received 24 immigrant and 932 B visas, so the ban only affected a small number of people.
The Labor Department has posted processing times current as of March 31 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 February and earlier are being reviewed for reconsideration.
Average PERM processing times in March:
PWD Processing: The National Prevailing Wage Center is currently processing requests filed in January and earlier for H-1B and PERM cases. Redeterminations are being considered on appeals filed in February and earlier for H-1B and PERM cases. Center director reviews are being conducted on appeals filed in February 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 March:
The Labor Department reports PERM and PWD processing timeframes on its iCERT page.
BAL Analysis: BAL’s internal case tracking is largely consistent with the Labor Department processing times. BAL is seeing approvals for PERM applications filed in October and is awaiting PWDs for requests filed in January and earlier.
U.S. Citizenship and Immigration Services has issued a policy memorandum that addresses the issue of multiple H-1B cap-subject petitions filed by related entities for the same employee in a fiscal year. The policy guidance adopts the Administrative Appeals Office decision in Matter of S- Inc., and instructs USCIS officers to apply it to similar cases.
Regulations already bar a single employer from filing more than one H-1B cap-subject petition in the same fiscal year for the same individual. Further, if USCIS believes that “related entities,” such as a parent company, subsidiary or affiliate do not have a legitimate business need to file more than one petition for the same beneficiary, it may request additional evidence or issue a notice of intent to deny the petitions. If the related petitioners are unable to demonstrate a legitimate business need, USCIS will deny or revoke the petitions.
The petitioner in Matter of S- Inc. was a software development and consulting firm that filed an H-1B cap petition for a computer programmer. USCIS revoked approval of the petition, finding that another company that had also filed an H-1B cap petition for the same individual, C-LLC, was a “related entity” even though the companies were not corporate affiliates. Both companies had filed H-1B petitions for the same individual to work in the same position for the same end client. On appeal, the Administrative Appeals Office upheld the revocation, finding that even though the two companies were not related as corporate affiliates, other factors can be considered to evaluate relatedness, including “familial ties, proximity of locations, leadership structure, similar work assignments and similar supporting documentation.”
“We are not concerned with petitioning employers who have any quantum of a relationship,” the AAO noted in its decision. “Two unwitting companies would not likely have the requisite similitude to trigger the bar. But the more similarities in the record, the more likely the companies were seeking to undermine the purpose of the random lottery process.”
BAL Analysis: This case provides insight into how USCIS determines whether entities are “related” for purposes of H-1B cap filings. Whether or not they are formally related through corporate ownership and control, petitioners that have other connections and file H-1B cap petitions for the same beneficiary for “substantially the same job” can be deemed related entities. Companies should be aware that multiple H-1B cap fillings for the same beneficiary may lead to greater scrutiny and requests for evidence.
President Donald Trump announced last week that the United States would end Deferred Enforced Departure (DED) for Liberian nationals, giving them 12 months to leave the U.S. or obtain another legal basis to remain in the country.
Key Points:
BAL Analysis: The administration’s decision to end DED for Liberians is consistent with the steps it has taken to end temporary immigration protections for nationals of a number of countries. The U.S. has ended TPS protections for several countries, including El Salvador, Haiti, Nicaragua and Sudan. The end of DED will have a similar impact for affected Liberians now living in the U.S. DHS has begun accepting applications for employment authorization for Liberian DED beneficiaries. Those who wish to work in the United States past Sept. 30, 2018, should file a Form I-765 as soon as possible.
The filing period for cap-subject H-1B petitions opened Monday, with the number of petitions once again expected to exceed the number of H-1B visas available within five business days. Regulatory changes that the Trump administration plans to propose for the H-1B program will not affect this year’s lottery. For those filing for the first time or in need of a refresher, here is how the process works:
Cap-subject H-1B filings dropped 15 percent to 199,000 last year but still easily exceeded the cap. Volume is expected to be high again this year.
The H-1B program has not been exempted from the Trump administration’s efforts to tighten the country’s visa programs. Last year, USCIS sharply increased the number of requests for evidence that it issued to companies whose H-1B petitions were accepted for processing. The agency published a policy memorandum in February, saying it will require additional information from employers who assign H-1B visa holders to third-party worksites. The agency also recently announced that it would suspend premium processing for all H-1B cap-subject petitions from now until Sept. 10. Employers should anticipate delays in H-1B cap receipts during this time.
BAL Analysis: The H-1B cap has been reached in the first week of filing in each of the past five years, and there is every indication that the same will happen this year. The Trump administration has not yet implemented proposed reforms that could change the way the lottery is conducted. BAL will report any significant H-1B developments, including regulatory proposals that could affect how petitions are adjudicated this summer.
The State Department has asked for Office of Management and Budget (OMB) approval of a plan to ask nearly all visa applicants for additional social media and personal information. The plan is part of the Trump administration’s “extreme vetting” program and follows a move last spring to ask similar questions of a subset of applicants.
BAL Analysis: If the proposal is approved, visa applicants should prepare to provide additional information. The additional screening requirements could result in increased administrative processing delays for applicants and may exacerbate interview appointment backlogs since the requirements may lead to longer interviews. BAL is continuing to monitor the progress of the proposal and will provide updates as additional information becomes available.
IMPACT – HIGH
Russian authorities announced Thursday that they will expel U.S. diplomats and close the U.S. consulate in St. Petersburg.
BAL Analysis: Applicants should anticipate delays as a result of the closure and the loss of diplomatic staff in Russia. The U.S. consulate in St. Petersburg has not announced how it will handle pending applications, but when it suspended nonimmigrant visas services in August 2017, pending applicants with scheduled interviews were contacted to reschedule at another location. BAL is following developments and will report additional information as it becomes available.
This alert has been provided by the BAL Global and U.S. practice groups. For additional information, please contact berryapplemanleiden@bal.com.
U.S. Immigration and Customs Enforcement (ICE) has launched a new Student and Exchange Visitor Program (SEVP) online portal that allows F-1 students participating in post-completion optional practical training (OPT) and M-1 students in practical training to update employer and personal information directly.
BAL Analysis: Use of the new portal is optional, but could be a convenient choice for eligible students. OPT students are reminded that they must report changes in their name, address, or employer, and loss of employment within 10 days of a change. SEVP has stressed that while the portal will allow students to update certain personal and employer information, it does not grant them direct access to the SEVIS system and does not affect DSOs’ ability to use the system in any way.