Category: Alerts

U.S. Citizenship and Immigration Services has resumed Premium Processing today for all 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, interested government waivers, and Fiscal Year 2018 cap-subject filings.

What Employers Can Expect
Employers can now request Premium Processing for new and pending H-1B petitions by Filing Form I-907 and submitting the $1,225 filing fee. USCIS must respond within a fifteen (15) calendar day period with either an adjudication or Request for Further Evidence, or will refund the fee.

Please visit the USCIS website for further details.

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

The Department of Homeland Security (DHS) published a notice in the Federal Register announcing plans to collect additional information and social media data on all immigrants.

The scope of data collection is potentially very broad, and affected groups include green card holders, naturalized citizens, and relatives and associates of any individuals subject to the Immigration and Nationality Act (INA).

DHS will modify a current DHS system of records that contains information regarding transactions involving an individual as he or she passes through the U.S. immigration process. These records will also be used to assist DHS with detecting violations of immigration and nationality laws; supporting the referral of such violations for prosecution or other appropriate enforcement action; supporting law enforcement efforts and inspection processes at the U.S. borders; and to carry out DHS enforcement, immigration, intelligence, and or other homeland security functions.

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.

The Trump Administration announced that it intends to rescind the Deferred Action for Childhood Arrivals program, known as “DACA.” The program, established by Executive Order in 2012, affects approximately 800,000 undocumented immigrants who were brought to the U.S. as children and were granted protection from deportability and issued valid work authorization. In today’s announcement, the Administration indicated it would pursue an “orderly, lawful wind down” of the program. Further specifics on the near-term effects on the approximately 800,000 current DACA beneficiaries were not made immediately clear. However, the Administration has noted that it will no longer accept new DACA applications.

Although there are reports that lawmakers are drafting a bill that would provide a pathway to permanent residence to individuals without status who came to the U.S. as children, whether Congress will enact such legislation is uncertain. Over the past decade, Republicans, who now control the Congress, have repeatedly blocked similar legislation from passing. Many employers, industry groups, and business leaders are urging Congress to act to protect the program. If Congress does not take remedial action, once DACA authorization expires, the approximately 800,000 individuals affected will lose work authorization and protected status, and will be placed at risk of deportation.

What Employers and Foreign Nationals Should Expect

Employers should be aware that employees with DACA status may lose work eligibility and/or the ability to remain in the U.S. Employers may also wish to consider working with legislative advocacy partners to support legislation. Foreign nationals with DACA status should consult with immigration counsel to discuss possible alternative immigration options and plan for program termination.

All DACA benefits are provided on a two-year basis. USCIS has indicated that individuals who currently have DACA will be allowed to retain both DACA and their work authorizations (EADs) until they expire. USCIS has also announced that it will adjudicate DACA submissions on a case-by-case basis, including:

• Properly filed and already pending DACA initial requests and associated applications for employment authorization documents (EADs) that have been accepted as of September 5, 2017.
• Properly filed pending DACA renewal requests and associated applications for EADs from current beneficiaries that have been accepted as of September 5, 2017, and from current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018 that have been accepted as of October 5, 2017.
• Individuals who have not submitted an application by September 5, 2017, for an initial request under DACA may no longer apply. USCIS will reject all applications for initial requests received after September 5, 2017.

For more details, see the USCIS website here.

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.