Alerts - Gibney Anthony & Flaherty, LLP

June 5, 2019

Department of State Requiring Social Media Identifiers from U.S. Visa Applicants

Effective May 31, 2019, the U.S. Department of State updated its nonimmigrant and immigrant visa application forms to require most visa applicants to provide their social media identifiers for designated social media platforms used in the past five years. Visa applicants must provide usernames, previous email addresses, and phone numbers. Applicants are not required to disclose passwords. Covered social media platforms requiring disclosure include Facebook, Twitter, Instagram, YouTube, and LinkedIn, among others. The visa application lists the specific social media platforms for which identifiers are requested.

All nonimmigrant and immigrant visa applicants are required to submit the requested social media information except for those applying for designated A, C, G and NATO visas.

A response to the social media question is a required field on the nonimmigrant visa applicant form (DS-160) and immigrant visa application form (DS-260 ). While an applicant may respond “none” if applicable, the failure to provide an accurate, complete, and truthful response may result in denial of the visa application and more serious immigration consequences, including a finding of fraud or misrepresentation.

Applicants should expect that Consular Officers will surveil social media platforms to vet applicants, compare with information provided on visa applications and immigration petitions, and ascertain eligibility for the visa requested.

At this time, individuals traveling to the U.S. under the Visa Waiver Program (with ESTA travel clearance) are not required to provide social media identifiers.

Information from the Department of State concerning this initiative is available at “About Visas – The Basics” FAQ page and at Frequently Asked Questions.

For additional information concerning this alert, and applying for visas generally, please contact your designated Gibney representative or email info@gibney.com.

May 17, 2019

FY 2020 H-1B Cap Data Entry Completed

On May 17, 2019, United States Citizenship and Immigration Services (USCIS) announced that the agency completed data entry for the H-1B cap-subject petitions filed during the Fiscal Year (FY) 2020 filing period (April 1 to April 5, 2019). USCIS will now begin returning all H-1B cap-subject petitions that were not selected and will issue an announcement once notification of rejections has been completed. USCIS has indicated it cannot provide a definite time frame for returning unselected petitions given the large volume of submissions.

What Employers Can Expect

Employers may expect to continue to receive receipts for selected cases over the next few weeks. Petitions that are not selected under the FY 2020 cap will be rejected by USCIS and returned with the government filing fees. USCIS also advised that it may transfer some H-1B cap-subject petitions between the Vermont Service Center and the California Service Center to balance case processing workloads and enhance efficiencies. If an H-1B cap case is selected and transferred to a different USCIS Service Center, USCIS will send notification of the transfer in the mail.

Premium Processing Service Availability Reminder

As previously announced, USCIS will take a two-tiered approach to implementing premium processing service for cap-subject H-1B petitions where the petitioner requests premium processing service on Form I-907. For H-1B cap petitions filed with a change of status request , USCIS will notify the public as to the precise date that premium processing service for these petitions will commence (expected not later than May 20, 2019). For H-1B cap petitions filed with a request for consular notification of approval, USCIS has indicated that premium processing service for these petitions will not be available until at least June 2019.

Petitions Not Subject to the H-1B Cap

As a reminder, USCIS will continue to accept and process H-1B petitions that are not subject to the cap. These include filings for extensions of status, amended petitions, changes of employer, concurrent employment for existing H-1B workers, and petitions filed by organizations that are cap-exempt.

If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

April 12, 2019

FY2020 H-1B Cap Reached and Lottery Conducted

On April 11, 2019, United States Citizenship and Immigration Services (USCIS) confirmed that the agency received 201,011 H-1B cap-subject petitions during the Fiscal Year (FY) 2020 filing period (April 1 to April 5, 2019). USCIS also announced that it conducted the random selection process for both the regular H-1B cap of 65,000 petitions, and the U.S. advanced degree H-1B cap of 20,000 petitions.

What Employers Can Expect

Employers may expect to receive receipts for selected cases over the next several weeks. USCIS will also announce when it will start Premium Processing for selected petitions (expected no later than May 20, 2019). If an H-1B cap-subject petition is not selected by the USCIS, the agency will reject and return all unselected petitions with the filing fees.

Petitions Not Subject to the H-1B Cap

USCIS will continue to accept and process H-1B petitions that are not subject to the cap. These include filings for extensions of status, amended petitions, changes of employer, concurrent employment for existing H-1B workers, and petitions filed by organizations that are cap-exempt.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

March 19, 2019

USCIS FY2020 H-1B Cap and Premium Processing Update

On March 19, 2019, U.S. Citizenship and Immigration Services (USCIS) announced that it will take a two-phased approach to premium processing for H-1B cap petitions when the FY 2020 filing period begins April 1, 2019. The first phase will include FY 2020 H-1B cap petitions requesting a change of status and the second phase will include all other FY 2020 H-1B cap petitions.

In the first phase, petitioners filing H-1B cap petitions with change of status requests may concurrently request premium processing service by filing Form I-907 when the H-1B cap petition is initially filed. While USCIS will not begin premium processing these petitions immediately, it will commence premium processing for these cases not later than May 20, 2019. USCIS will notify the public as to the precise date that premium processing service for these petitions begins. Petitioners who file change of status H-1B cap petitions without concurrently filed premium processing requests will also have the option of interfiling premium processing requests once premium processing service for these petitions begins.

The second phase of premium processing will include all other FY 2020 H-1B cap petitions (i.e., all petitions that do not request a change of status on Form I-129). USCIS indicates that premium processing for these petitions will not begin until at least June 2019. Once USCIS establishes the effective date for phase two, employers may interfile Form I-907 to request premium processing service for these H-1B cap petitions. Employers may not request premium processing service for these cases until USCIS establishes the effective date.

As a reminder, at this time, premium processing is available for all non-cap subject H-1B petitions, such as extension of stay and change of employer requests. See Gibney’s prior immigration alert on this topic.

New H-1B Data Hub

USCIS also announced that it will launch a new H-1B Employer Data Hub on April 1, 2019. The data hub will allow the public to search for H-1B petitioners by fiscal year, NAICS industry code, company name, city, state and zip code. The hub is expected to give the public ability to calculate approval and denial rates, and to identify which employers are using the H-1B program.

For more information on the FY2020 H-1B cap program, visit the USCIS’s FY2020 H-1B Cap Season website.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

The general information provided herein is not intended to serve as a source of legal advice for any purpose. Please contact your designated Gibney representative or immigration counsel for specific legal advice.

March 19, 2019

United Kingdom to Expand ePassport Gate Program

Commencing June 1, 2019, the United Kingdom will expand the ePassport Gate program to include citizens of the United States, Australia, Canada, Japan, New Zealand, Singapore, and South Korea. Individuals using ePassport gates are not required to complete or present a landing card at entry. Citizens of the United Kingdom and European Economic Area (EEA) countries already have access to the ePassport gates. The goal of this program is to improve the passenger experience at entry by significantly improving queue times while maintaining security.

Travelers from the designated countries using ePassport gates must be over age 12 and must possess a biometric passport.
Gibney will continue to monitor this program and provide updates as they become available. If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

This article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.

March 12, 2019

Schengen Area Countries to Require Travel Clearances for Visa Exempt Travelers as of January 2021

Commencing January 1, 2021, visa-exempt travelers to Schengen area countries, including U.S. citizens, will be required to obtain a European Travel Information and Authorization System (ETIAS) clearance prior to visiting these countries. There are currently 26 Schengen countries in Europe that will require an ETIAS clearance, and four additional countries, Romania, Bulgaria, Croatia and Cyprus, are expected to join the area soon. Notably, the United Kingdom and Ireland are not part of the Schengen area.

Currently, U.S. citizens may travel to the Schengen area for a maximum stay of 90 days within a six month period without a visa. As of January 1, 2021, while a visa will not be required, U.S. citizens will need to register online for an ETIAS clearance. Applicants will need a passport valid for three months beyond the period of intended stay, a credit or debit card to pay the government filing fee of 7 euros, and an email account to receive the ETIAS confirmation. The ETIAS clearance will be valid for three years.

ETIAS is expected to assist European immigration and customs officials in pre-screening all travelers to improve security measures in the Schengen area.

Gibney will continue to monitor this program and provide updates as they become available. If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

March 12, 2019

Premium Processing Service For H-1B Petitions: Update

On March 12, 2019, USCIS reinstated premium processing service for H-1B petitions. On March 13, USCIS clarified that the announcement was not specific to FY 2020 H-1B cap petitions, and that the government will address these filings in a separate announcement.

Last year, USCIS suspended premium processing service for FY 2019 H-1B cap petition in March 2018. It expanded the suspension to most other H-1B petitions in September 2018. Since January 2019, USCIS has re-introduced the benefit incrementally. H-1B petitioners may now request premium processing service for all pending and newly filed H-1B petitions by filing Form I-907 and paying a fee of $1410. USCIS will then adjudicate the petition within 15 days.

As noted, a separate announcement is expected for FY 2020 H-1B cap petitions that can be filed as of April 1, 2019. As a practical matter, employers intending to file H-1B cap petitions April 1 should explore filing strategies with Gibney.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

February 19, 2019

USCIS Resumes Limited Premium Processing for H-1Bs

The U.S. Citizenship & Immigration Services (USCIS) has indicated that it will resume Premium Processing on Tuesday, February 19, 2019 for pending H-1B petitions filed on or before December 21, 2018. USCIS previously announced a temporary suspension of Premium Processing for certain H-1B petitions, and this suspension remains in effect for H-1B petitions that were filed on or after December 22, 2018. The USCIS has indicated that it plans to resume Premium Processing for the remaining categories of H‑1B petitions as agency workloads permit.

Premium Processing ensures expedited adjudication of petitions within a 15 calendar day processing time frame. Premium Processing requests are submitted to USCIS with Form I-907 and a government filing fee of $1,410.00. Please see the USCIS website for details on where to file the Premium Processing request for applicable petitions.

See Gibney’s prior alert USCIS Resumes Premium Processing for Fiscal Year 2019 H-1B Cap Petitions for further details. Gibney is actively monitoring developments and will provide an update when Premium Processing for additional H-1B petitions is reinstated.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

January 30, 2019

DHS to Change H-1B Cap Lottery Selection Process

On January 30, 2019, the Department of Homeland Security (DHS) announced that it will publish a final rule on January 31, 2019 to amend regulations governing the H-1B cap process. Some changes will take effect for H-1B cap petitions filed this year (April 1, 2019) while other changes will be implemented for cap petitions filed in fiscal year (FY) 2021.

New this Year: Reversed H-1B Cap Lottery

This year, U.S. Citizenship and Immigration Services (USCIS) will reverse the order of the H-1B cap lottery. Currently there are two H-1B cap lotteries: the regular H-1B cap lottery and the H-1B cap lottery for U.S. advanced-degree holders, for which an additional 20,000 visas are available. Historically, USCIS has held the advanced degree lottery first and petitions not selected in that lottery were added to the regular lottery. The new rule will reverse the lottery. USCIS will conduct the regular lottery first, and upon completion, USCIS will conduct the advanced degree cap lottery for the remaining petitions for beneficiaries holding advanced degrees from U.S. universities. USCIS predicts that this change will result in 16% more advanced-degree holders being selected in the H-1B regular lottery.

Implementation of H-1B Cap Electronic Registration Requirement Postponed

The final rule also will introduce an electronic registration requirement for petitioners seeking to file H-1B cap-subject petitions; however, this registration requirement will be suspended for the upcoming FY2020 H-1B cap season. USCIS expects to implement this registration requirement for future cap seasons, once user testing has been completed and it can be ensured that the system and process are fully functional. For information on how the electronic registration requirement is expected to work, please see our alert USCIS Proposes to Modify FY2020 H-1B Cap Process.

Postponement of the registration requirement until next year has been generally met with relief given widespread concerns about the feasibility of creating and successfully implementing a system for this year’s H-1B cap filing period. Looking ahead, USCIS indicated it will conduct outreach to ensure petitioners understand how to access and use the system prior to implementation next year. Once implemented, the registration system is expected to lower costs for employers and increase government efficiency in managing the H-1B cap process and adjudicating H-1B cap petitions.

What Should Employers Do Now?

With increasing demand for H-1B workers, we encourage employers to identify potential H-1B cap cases now and work with immigration counsel to take appropriate steps to ensure timely preparation and filing of cases when the H-1B cap filing period opens on April 1, 2019. Last year, the H-1B cap petition quota was reached during the first week of filing for the sixth consecutive year. We anticipate that the H-1B quota will be reached quickly again this year. This means that employers should plan to file all H-1B cap petitions by April 1, 2019. Prior to filing any petitions, employers must work proactively with counsel to vet cases for eligibility, obtain credential evaluations, and secure Labor Condition Applications from the U.S. Department of Labor.

If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.

January 30, 2019

Shutdown Ends and Immigration Services Resume

On January 25, 2019, President Trump signed a stopgap spending bill to re-open the U.S. government. Federal agencies affected by the 35-day shutdown have resumed operations and will be funded until February 15, 2019.

E-Verify also resumed operations, and the Department of Homeland Security provided instructions for participating employers to ensure compliance:

Employers who participate in E-Verify must create an E-Verify case by February 11, 2019 for each employee hired while E-Verify was not available.
Employers must use the hire date from the employee’s Form I-9 when creating the E-Verify case. If the case creation date is more than three days following the date the employee began working for pay, select “Other” from the drop-down list and enter “E-Verify Not Available” as the specific reason.

For additional details regarding E-Verify compliance during the shutdown, please visit the E-Verify site.

The situation posed by the federal government shutdown remains fluid. If another shutdown occurs on or after February 15, 2019, there may be further impact on immigration-related services such as E-Verify. For further information on the U.S. government agencies and services likely to be impacted if there is another shutdown, please see Immigration Alert: Potential Government Shutdown and Immigration Impact.

Gibney will be closely monitoring the situation and provide updates as necessary. If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.