The U.S. Citizenship and Immigration Services (USCIS) announced today that it will extend and expand the suspension of Premium Processing for certain H-1B petitions for a period estimated through at least February 19, 2019.
Background on Premium Processing
H-1B petitions filed under the regular processing method have been increasingly subject to lengthy adjudication times from six to eight months or longer. Premium Processing is an expedited method of adjudication available for certain non-immigrant and immigrant visa petitions, including H-1B petitions. Premium Processing is requested by filing Form I-907 and including an additional government filing fee of $1,225.00. It guarantees a response by USCIS (either an adjudication or Request for Further Evidence) within fifteen (15) calendar days of a petition being submitted.
Impact on H-1B Petitions
H-1B petitions that are subject to the Fiscal Year (FY) 2019 cap, request new employment, request an amendment to existing employment, or request a change of employer, and that are filed and receipted into the USCIS on or after September 11, 2018 will no longer be eligible for Premium Processing until further notice, and will be subject to significantly lengthier processing times than may otherwise be secured through the Premium Processing method.The biggest impact is likely to be lengthy delays for new hires who are transferring H-1B status and change of employer petitions. As the USCIS also recently issued a new policy effective September 11, 2018, allowing USCIS officers with the discretion to deny petitions outright without first providing an opportunity to respond to a Request for Evidence (RFE) or Notice of Intent to Deny (NOID), it further increases the risks for H-1B transfers, and the ability for foreign nationals to utilize portability. Petitioners who are filing an extension of status with no material change to the job role, and certain cap-exempt employers, will be exempt from this suspension policy.
Other Considerations
It is unclear whether the USCIS will continue to honor expedited processing for H-1B petitions submitted with Premium Processing that have been filed and receipted but not yet adjudicated prior to September 11, 2018. USCIS has stated it may choose to adjudicate these petitions under regular processing and return any related filing fees for the Form I-907 requesting Premium Processing.USCIS estimates that this suspension will remain in effect until February 19, 2019. However, it is unclear at this time if the suspension will be further expanded or extended.
If H-1B cap-subject petitions selected in the lottery are not adjudicated by October 1, there may be an impact on certain F-1 students who are currently working under “cap-gap” provisions.
Expedite Options
The USCIS has noted that discretionary expedite requests for processing remain available for certain petitions. However, these requests are only accepted in very limited situations, including a showing of severe financial loss to a company or person, emergency situations, or humanitarian reasons, among others. All expedite requests are reviewed on a case-by-case basis and granted at the sole discretion of the USCIS’s office leadership.Gibney is working with clients to evaluate the impact of this new policy and how it is being implemented.
If you have any questions about this alert, please contact your Gibney representative or email info@gibney.com.
On August 17, 2018, USCIS updated its website to clarify obligations and reporting responsibilities for employees and employers participating in the F-1 STEM OPT program, including obligations related to training at third-party sites, staffing and temporary agencies. USCIS clarified that training may take place at third party sites, if certain conditions are met and there is a bona fide employer-employee relationship. USCIS refers to the employer-employee relationship as defined in the regulations and regulatory comments published in 2016, when current STEM OPT rules became effective. The guidance confirms that the employer signing the training plan must also provide the training experience, and that the “’personnel’ who may provide and supervise the training experience may be either employees of the employer, or contractors who the employer has directly retained to provide services to the employer; they may not, however, be employees or contractors of the employer’s clients or customers.
It is important that employees and employers understand their obligations given increased penalties for non-compliance with F-1 OPT regulations effective August 9, 2018.
For specific legal advice, please contact immigration counsel or email info@gibney.com.
Effective August 9, 2018, nonimmigrants in F, J and M status who fail to maintain status will begin to accrue unlawful presence, irrespective of whether there has been an official or formal finding by the Department of Homeland Security on the matter. This is a significant departure from past practice, and one that eliminates a previously held distinction between failure to maintain status and unlawful presence. Nonimmigrant visa holders who accrue unlawful presence may become ineligible for immigrant benefits (such as extension and change of status applications) and may also be subject to bars to readmission to the U.S., including permanent bars.
What This Means for Foreign Nationals
- F, J and M nonimmigrants must be familiar with all terms and conditions of their status to ensure compliance with all applicable laws and regulations. Activities which previously have been deemed status violations (i.e. failure to maintain status) and which may now cause a visa holder to be unlawfully present under the new memo include, but are not limited to, failure to maintain a proscribed course of study, working without authorization, extended and cumulative periods of unemployment during practical training periods, failure to comply with visa/status reporting requirements, etc. This list is not exhaustive. Determining whether an activity or course of conduct gives rise to unlawful presence is a complex and technical matter requiring legal analysis. F, J and M visa holders should confer with their Designated School Officials or program sponsors regarding program requirements, as appropriate, and seek immigration counsel for specific legal advice.
- Nonimmigrants in F, J, and M status who failed to maintain status before August 9, 2018, will start accruing unlawful presence on August 9 unless they had already started accruing unlawful presence on the earliest of any of the following:
- The day after the Department of Homeland Security (DHS) denied their request for an immigration benefit, if DHS made a formal finding that they violated their nonimmigrant status while adjudicating a request for another immigration benefit;
- The day after their I-94 expired; or
- The day after an immigration judge or Board of Immigration Appeals (BIA) ordered the nonimmigrant excluded, deported or removed (regardless whether the decision is appealable).
- Nonimmigrants in F, J, and M status who fail to maintain status after August 9, 2018, will start accruing unlawful presence on or after August 9, on the earliest of any of the following:
- The day after they no longer pursue their course of study or authorized activity, or the day after they engage in an unauthorized activity;
- The day after completing their course of study, program or practical training and any authorized grace period (i.e. 60 days for F status, 30 days for J status).
- The day after their I-94 expires; or
- The day after an immigration judge or Board of Immigration Appeals (BIA) orders the nonimmigrant excluded, deported or removed (regardless whether the decision is appealable).
- Foreign nationals who accrue more than 180 days of unlawful presence and then depart the U.S. are subject to a 3-year bar to readmission; those who accrue more than 365 days of unlawful presence and then depart are subject to a 10-year bar to readmission.
What to Expect
- The policy is expected to take effect August 9, 2018.
- At this time it is uncertain how the governing agencies will implement the new policy. We will continue to closely monitor issues relating to this new policy and provide updates.
- Foreign nationals in F, J and M status who have any questions regarding their obligations and responsibilities under should consult an immigration attorney.
If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.
Immigration Partners Ellen Poreda and Stephen Maltby co-authored the United States chapter of The Corporate Immigration Review.
The chapter provides an introduction to the U.S. immigration framework including legislation and policy, international treaty obligations, employer sponsorships and visas for investors, skilled migrants and entreprenuers. The chapter also includes a year in review.
The Corporate Immigration Review is a guide summarizing key immigration issues from some of the world’s leading immigration lawyers.
View the full chapter here.
On June 26, 2018, the Supreme Court upheld the Trump Administration’s ban restricting nonimmigrant and immigrant entry for certain foreign nationals who are citizens or nationals of seven countries: Libya, North Korea, Syria, Venezuela, Yemen, Iran and Somalia. The decision lifts the temporary injunctions issued by the lower courts, and remands the cases for hearing on the merits subject to the Supreme Court’s interpretation of the Constitution and immigration laws. Key elements of the majority’s decision include the following:
- The President has lawfully exercised the broad discretion granted to him by Congress to suspend the entry of aliens to the United States for purposes of national security.
- Plaintiffs have not demonstrated a likelihood of success on the merits of their claim that the
- Proclamation violates the Establishment Clause (which generally prohibits the government from discriminating on the grounds of religion).
For additional information on the Supreme Court decision, the Presidential Proclamation and designated countries, please see links below:
Please consult with immigration counsel for legal advice. Individuals concerned about the impact of travel restrictions should consult with an attorney before making plans to travel to or depart from the United States or attempting to enter/apply for a visa to enter the U.S.
Gibney will continue to monitor events and how these new guidelines will be implemented at the border and at Consulates abroad. For additional information, please visit Gibney’s Immigration Advisory and FAQs.
If you have any questions regarding this alert, please contact your designated Gibney representative, or email info@gibney.com.
Challenge
U.S. Citizenship and Immigration Services (USCIS) allots a set number of H-1B visas annually. Our client in the health care industry identified a highly skilled foreign national candidate for a critical business position, but was unable to employ the candidate for several months due to the annual limit on H-1B visas for cap-subject (for-profit) companies. This included the period between when the visa petition could be filed (April) and when it would take it effect (October).
Solution
Working closely with the company and the candidate, we leveraged the candidate’s H-1B status with a non-profit institution that was exempt from the visa cap. Our attorneys were mindful of the often overlooked USCIS employment portability provisions. These provisions allow a cap-exempt H-1B worker to begin employment with a cap-subject employer upon filing of the new petition, instead of waiting for approval and the effective validity date. We structured the filing so that the candidate could begin employment with our client six months earlier than anticipated. This also required ensuring and documenting that certain preconditions were met, including obtaining the required Labor Condition Application to ensure full compliance with USCIS and Department of Labor regulations during all periods of employment.
We have assisted other cap-subject (for profit) clients in navigating the H-1B cap in other creative ways. We work with our clients to understand and develop their relationships with cap-exempt institutions, so that when they identify a foreign national candidate who they are unable to onboard due to the annual H-1B cap, we can explore opportunities for the candidate to work part-time at the cap-exempt institution. This provides cap-subject clients an opportunity to leverage the cap-exempt petition and sponsor the foreign national for concurrent H-1B employment.
Challenge
When the Executive Orders restricting travel were released, our global life sciences client was concerned about the ability of its employees to travel internationally to further its ground-breaking research initiatives. We immediately assembled our team to assess the legal implications of the ban and identify and counsel impacted foreign nationals. We developed a corporate action plan consistent with the message our client wished to convey to its employees.
Solution
Although the population directly impacted by the travel ban was relatively discreet, we recognized that the Executive Orders caused significant concern among the foreign national population at-large. The company’s executives, managers and HR and global mobility professionals were also concerned about the impact on business travel and the ability to attract and retain foreign talent.
We quickly launched a company-wide, global webinar to address employees and engage company stakeholders including leaders, global mobility, travel and security personnel and advocacy partners, to advise on who could travel and what to expect. We also addressed policies on carrying company laptops and equipment and what to expect at U.S. consulates abroad and at immigration inspection upon arrival in the U.S. We supplemented this webinar with ongoing legal updates and travel advisories. Armed with this information and secure in the support from the legal team and the company, the employees were able to resume focus on their important work.
Immigration Partners Stephen Maltby and David Johnson co-authored an article in the Trade and Investment Guide to the US for BrtishAmerican Business. The publication was launched at the BABC Conference in Birmingham, United Kingdom on June 6.
The Annual Transatlantic Business Conference brings together 300 Senior Executives throughout the U.S. and U.K. for a 2-day program of high-level business discussions and networking with business executives actively involved in transatlantic business.
The article addressed key immigration issues for foreign businesses looking to establish or grow their presence in the United States, including common nonimmigrant visa categories and business planning best practices.
Zarina Syed will speak at the 2018 AILA Annual Conference on Immigration Law “Building Bridges and Standing for Justice” in San Francisco from June 13 – 16. Her presentation is titled “Intro to H-1B Specialty Workers.” The panel will provide a basic overview of the complexities of the H-1B visa category and how the process works, and will identify best practices for avoiding common problems.
Topics include:
- Does the Foreign National Have a “Specialty Occupation”?
- Does the Foreign National Qualify? Education and Experience
- Is the Employer Offering and (Willing to Pay) the Prevailing Wage?
- Is There an H-1B Visa Number Available?
- Mechanics of Filing: Labor Condition Application/Form I-129
- Evidence, RFEs, and Recordkeeping
For more information or to register, visit: http://www.aila.org/conferences/in-person/annual.
David Johnson spoke at a joint presentation with Innovation Norway and Nordic Innovation House. David discussed key legal issues for Nordic companies to consider when establishing a presence in the United States. Topics included corporate entity formation and tax considerations and visa and immigration matters. David and Stephen are attorneys in Gibney’s Emerging Business Group, focusing on providing comprehensive legal services to foreign companies looking to expand in the U.S.
