Category: Alerts

H-1B cap-subject visa petitions filed and approved by U.S. Citizenship and Immigration Services (USCIS) for Fiscal Year 2018 will take effect on or after October 1, 2017.

Change of Status Filings:
H-1B cap-subject petitions filed as “change of status” will take effect on October 1, 2017 if the beneficiary:

• Was physically present in the U.S. for the entire period from the date the petition was received through the date the application was approved
• Is physically present in the U.S. on October 1, 2017 for the change of status to take effect

After October 1, a beneficiary departing the U.S. must apply for an H-1B visa at a U.S. Consulate abroad in order to re-enter the U.S. in valid H-1B status. U.S. Consulates require a personal interview to apply for a visa, and most require a number of weeks to schedule an interview. Actual visa processing times vary by Consulate and can be found at the U.S. Department of State website. All beneficiaries are advised to check the website of the specific Consulate for further information on scheduling the interview and visa processing.

Consular Notification Filings:
H-1B cap-subject petitions filed as “consular notification” will not automatically change the beneficiary’s status to H-1B without further action. To activate H-1B status, the beneficiary must depart the U.S. if not already abroad, obtain an H-1B visa at a U.S. Consulate, and re-enter the U.S. utilizing the H-1B visa. H-1B status will take effect upon the date of re-entry into the U.S. (Note: Canadians are visa exempt.)

Next Steps for Employers:

• Form I-9 Reverification: Employers may need to update the employment eligibility under Section 3 of Form I-9 for H-1B cap beneficiaries whose I-9 documents are expiring.
• Taxes for F-1 and J-1 Non-Immigrants: F-1 students and J-1 exchange visitors who are maintaining valid status may be exempt from FICA tax withholding. However, once F-1 or J-1 foreign nationals change to H-1B status, they are no longer exempt and withholdings will need to be adjusted.
• Pending H-1B Petitions: Employers with pending H-1B cap-subject petitions can now request an upgrade to Premium Processing by filing Form I-907 along with an additional filing fee in the amount of $1,225. USCIS must respond within the 15-day period with either an adjudication or Request for Further Evidence, or will refund the fee. USCIS has stated that approval by early October is not guaranteed.

Please visit the USCIS website for further details on the H-1B process. For more information, please contact your designated Gibney representative or email info@gibney.com.

The Administration issued a Proclamation on September 24th, 2017 announcing various restrictions on nonimmigrant and immigrant entry for certain foreign nationals who are citizens or nationals of eight countries: North Korea, Venezuela, Chad, Syria, Iran, Somalia, Libya, and Yemen. The Administration previously issued travel restrictions through Executive Orders in January and March for certain nationals of six Muslim-majority countries, which have been challenged in Federal Court. The new Proclamation removes Sudan from the list of previously targeted counties, and imposes new travel limits for nationals of North Korea, Venezuela, and Chad, which take effect at different times.

The new restrictions took effect at 3:30 p.m. EDT on September 24th for foreign nationals who were subject to the last travel ban and lack a credible claim of a bona fide relationship with a person or entity in the U.S. However, the travel restrictions will go into effect at 12:01 a.m. EDT on October 18th for everyone else subject to the proclamation, including nationals of Chad, North Korea, and Venezuela, and nationals of Iran, Libya, Syria, Yemen, and Somalia who do have a credible claim of a bona fide relationship. It has also been confirmed that existing visas remain valid and that limited exceptions/waivers will be available on a case-by-case basis.

For more information on country specific restrictions, visit the Bureau of Consular Affairs site and the Department of Homeland Security FAQs.

On September 18, 2017, U.S. Citizenship and Immigration Services (USCIS) announced that it resumed Premium Processing for pending H-1B visa petitions subject to the Fiscal Year (FY) 2018 cap.

Processing for Non-Cap Subject H-1B Petitions
Premium Processing was previously suspended for all H-1B petitions starting April 3, 2017, and subsequently reinstated for H-1B petitions filed on behalf of physicians under the Conrad 30 waiver program, as well as interested government agency waivers. Premium Processing is still suspended for all other H-1B petitions, including amendments and extensions of stay. USCIS noted that it plans to resume Premium Processing for all other remaining petitions not subject to the FY 2018 cap, when resources are made available. Remaining petitions not eligible for Premium Processing may be eligible to submit an expedite request if certain criteria is met. USCIS reviews all expedite requests on a case-by-case basis.

What Employers Can Expect
Employers with pending H-1B cap-subject petitions can now request an upgrade to Premium Processing by filing Form I-907 and submitting the $1,225 filing fee. USCIS must respond within the 15-day period with either an adjudication or Request for Further Evidence, or will refund the fee. USCIS has stated that approval by early October is not guaranteed.

Please visit the USCIS website for further details. For more information, see our previous alert Premium Processing Suspended For All H-1B Petitions Starting April 3rd.

Gibney will continue to closely monitor these developments. For more information on this alert, please contact your designated Gibney representative, or email info@gibney.com.

In April 2017, President Trump signed an Executive Order entitled “Buy American, Hire American,” which instructed the U.S. Department of Justice, Department of State, Department of Labor, and Department of Homeland Security to propose new rules, guidance, and reforms to ensure stricter enforcement of all current laws, “protect the interests of U.S. workers,” and prevent fraud and abuse within the U.S. immigration program. In August 2017, the Foreign Affairs Manual was updated to provide guidance to consular officers administering the issuance of U.S. visas.

Over the past few months, clients have reported a significant increase of the number of Requests for Evidence (RFEs) issued on immigration filings with the U.S. Citizenship & Immigration Services (USCIS) including H-1B specialty occupation petitions (cap-subject and change of employer) and L-1B specialized knowledge intracompany transferee petitions. Some clients have also reported an uptick in visa refusals and denials at consular posts abroad, as well as more difficult screening questions, for various non-immigrant visa types including L-1 intracompany transferees and E-2 treaty investors.

Additionally, the USCIS will begin requiring in-person interviews for employment-based Adjustment of Status (aka green card) applicants starting October 1, 2017.  Current USCIS policy allows for waivers of in-person interviews for the majority of employment-based non-immigrant visa holders.

What Employers and Foreign Nationals Can Expect

Employers should work with counsel to ensure that current company immigration programs are compliant with all legal requirements. Visa applicants should consult with counsel to thoroughly prepare for visa interviews in advance, and expect longer consular processing times. Adjustment of Status applicants should also be prepared for longer green card processing times.

Gibney will continue to closely monitor these developments. For more information on this alert, please contact your designated Gibney representative, or email info@gibney.com.

The Department of State (DOS) announced that as a result of the Russian government’s personnel cap imposed on the U.S. Mission, all nonimmigrant visa operations across Russia will be suspended beginning August 23, 2017.

Nonimmigrant visas (NIV) include temporary business visitors and common temporary work visas.

What Employers Can Expect

• Visa operations will resume on a greatly reduced scale.
• Beginning September 1, nonimmigrant visa interviews will be conducted only at the U.S. Embassy in Moscow.
• NIV interviews at the U.S. Consulates in St. Petersburg, Yekaterinburg, and Vladivostok are suspended until further notice.
• The reduced personnel and other changes are likely to result in ongoing delays in visa issuance at US consulates in Russia.

For more information regarding embassy operations, visa processing and next steps for those with previously scheduled visa appointments, view the full Fact Sheet published by DOS.

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

On August 2, 2017, President Trump announced his support of the proposed American Immigration for a Strong Economy (RAISE) Act. Proposed changes under the immigration reform bill include:

• Establish a skills-based immigration system. If approved by Congress, the plan would institute a merit-based system to determine who is admitted to the U.S. and granted legal residency green cards. The system would award points based on a number of factors, including age, education, English proficiency, U.S. job offers, record of achievement, and entrepreneurial potential, among others.
• Limit family-sponsored immigration. The legislation would limit the kinds of qualifying relationships eligible for family-sponsored immigrant visas. Specifically, the plan would allow American citizens and legal permanent residents to sponsor spouses and minor children for immigrant visas, but would eliminate preference categories for other relatives such as siblings, adult children, and parents.
• Limit refugees. The number of refugees admitted to the US would be capped at 50,000 per year.
• Eliminate the Diversity Immigrant Visa Program. The bill also proposes eliminating the 50,000 immigrant visas currently allotted annually in a lottery to applicants.

What Employers Can Expect
If passed, this would have a significant impact on employers who sponsor green cards for their employees by limiting ability to sponsor certain temporary workers for permanent status and increasing backlogs. This proposal faces significant opposition from both parties and it is unlikely the legislation as drafted would be passed by Congress.

Gibney will continue to monitor these developments. If you have any questions, please contact your designated Gibney representative or email info@gibney.com.

On July 24, 2017, USCIS resumed premium processing for certain cap-exempt H-1B petitions.  Specifically, premium processing resumed for cases in which the H-1B petitioner is an institution of higher education; a nonprofit related to or affiliated with an institution of higher education; or a nonprofit research or governmental research organization.  Premium processing also resumed for petitions that may be exempt if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity as defined above.

We will continue to monitor the progress of the premium processing suspension that remains intact for other H-1B petitions. If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.

Today, U.S. Citizenship and Immigration Services (USCIS) released a new version of Form I-9 that will become mandatory beginning Monday, September 18, 2017. Until Sunday, September 17, 2017, employers may choose to continue to use the prior edition of Form I-9.

With this new version, no changes have been made to the Form I-9 itself. Instead, subtle changes have been made to the Form I-9 Instructions and to the Form I-9 Handbook (M-274). For example, a Consular Report of Birth Abroad (FS-240) issued by a U.S. Embassy or Consulate overseas will now be considered a List C document.

For a complete list of changes to the I-9 Instructions and Handbook, please visit the USCIS website.

Contact your Gibney representative or email info@gibney.com for additional details regarding this announcement, or for information concerning the use of E-Verify or other immigration-related onboarding processes.