Premium Processing Resumes for H-1B Petitions Filed Prior to December 21, 2018

USCIS announced on Friday, February 15,, 2019, that it will resume premium processing on Tuesday, February 19, 2019 for H-1B petitions filed prior to December 21, 2018.  This follows up on the USCIS announcement at the end of January that it would resume premium processing for cap-subject petitions that were filed on or about April 1, 2018.

This means that premium processing can now be requested for petitions filed before December 21, 2018 seeking:

  • H-1B transfer (change of employer);
  • H-1B amendment; and
  • H-1B change of status.

USCIS will resume premium processing for cases filed after December 21, 2018 “as agency workloads permit.”

H-1B extensions for “continuation of previously approved employment without a change with the same employer” filed exclusively at the Nebraska Service Center and petitions filed for beneficiaries who will be employed at a qualifying cap-exempt institution filed exclusively at the California Service Center have not been subject to the temporary suspension.

If you have questions about this, please reach out to your Jackson Lewis attorney.

No-Deal Brexit – Impact on EU Citizens Living and Working in the UK

The deadline for Brexit is quickly approaching – March 29, 2019.  If the UK leaves the European Union without a Brexit deal, what will that mean for EU citizens working in the UK?  According to Leigh Turner, the UK Permanent Representative to the United Nations, EU citizens living in the UK will be protected.  Their specific rights are set out in the Brexit withdrawal agreement.  But since that has not yet been ratified, the UK Government published a policy paper in December 2018 on citizens’ rights in the event of a no-deal Brexit.  That publication “represents a unilateral commitment on the part of the UK that EU citizens resident in the UK by 29 March 2019 will be able to live, work and study, and to access in-country benefits and services such as education and healthcare on broadly the same terms as they do now.”  Some EU member states are starting to set out reciprocal plans in the event of a no-deal Brexit.

For more information regarding Brexit, please see our L&E Global Partner’s Brexit hub at https://www.clydeco.com/blog/brexit.

Bill to Eliminate Per-Country Caps on Green Cards Re-Introduced

Prior to the government shutdown, it seemed that the Fairness for High-Skilled Immigrants Act might pass as an amendment to the spending package with strong bipartisan support. But that was not to be. Now members of the U.S. House and Senate, led by Representative Zoe Lofgren (D-CA) and Senator Kamala Harris (D-CA), have again introduced the bill in the 116th Congress.

The bill would eliminate the per-country caps and therefore speed up the processing of green cards specifically for Indian and Chinese foreign nationals who have faced extremely long waits in the past. In addition to having their processes expedited, such foreign nationals would also benefit because:

  • They and their employers would not have to worry about renewing H-1B visas over and over again in an atmosphere that has become more hostile to H-1B visas;
  • Spouses would be able to obtain work authorization based upon the filing of the green card applications and find relief from the Trump Administration’s plan to eliminate H-4 EADs; and
  • Children of these beneficiaries would not face so frequently the prospect of “ageing-out” before their parents can apply for green cards for them as well.

High tech companies are particularly supportive of this new legislation because it will make it easier for them to recruit foreign workers – many of whom are from India.

But there would be a downside to the proposed changes. Foreign nationals who are not from India or China would have to face longer waits than they have in past. It has been estimated that the average wait time will equalize at about seven years. Consequently, it would be virtually impossible for any foreign national to receive a green card without first having an H-1B visa. This could make recruiting foreign talent from countries other than India and China more difficult.  Among the concerns:

  • The healthcare industry is concerned because foreign nurses, generally not from India or China, are not eligible for H-1B visas and have to get green cards before they can work in the U.S.
  • Potential employees who are not from India or China who are locked out of the H-1B lottery will no longer have the green card option immediately available.
  • Individuals who are not from India or China will have to face more H-1B renewal applications.
  • Without green cards, individuals from travel ban countries will have to deal with a waiver system that has not been very viable.

The legislation gives with one hand but, unfortunately, takes with the other.

Jackson Lewis will provide updates as the bill moves through the legislative process.

U.S. Government’s Fake Universities Net F-1 Foreign Students, Recruiters

For some time now, the U.S. has been on the lookout for students who enroll in graduate programs solely for the purpose of obtaining additional CPT (Curricular Practical Training), particularly when they do not “win” the H-1B  lottery. Indeed, USCIS has issued Requests for Evidence (RFEs) regarding H petitions when it suspects that a student is not really engaged in a full-time program of study, but enrolled to benefit from a university’s CPT program. Now, DHS reportedly has been operating a nonexistent university for the purpose of “identifying” such students.

In 2015, ICE set up a fake university as a sting operation. The University of Farmington, located in Michigan, touted its STEM curriculum and flexible schedule that would allow students to work while attending the university. The tuition was relatively low – $8,500 a year for undergraduates and $11,000 for graduate students. The university was apparently nothing more than a cover story for students who were essentially buying extensions of their student visas and procuring work authorization. It was not until 2017, however, when federal agents started posing as university officials that the sting operation picked up speed. More than 600 students enrolled. Of those, 130 across the country have been arrested on civil immigration charges. Eight foreign nationals who acted as “recruiters” were arrested on conspiracy and harboring charges. The recruiters allegedly helped to create and procure false documents and received kickbacks for their efforts. An attorney for one of the recruiters has argued that the sting operation was unfair entrapment. Almost all of the 130 students arrested were Indian nationals who originally came to the U.S. in valid F student status. The Indian government has been lobbying for their release.

While the University of Farmington sting is particularly big, this is not the first time that ICE has done this. In 2016, recruiters who enrolled foreign students at another fake university, the University of Northern New Jersey, were arrested in a “pay to play” scheme.

Although those arrested in both stings have said that they were “deceived” or entrapped, the prosecution in the Farmington case has alleged in the indictment that the students were well-aware of the illegal nature of the university’s activities.

While the Trump Administration has not yet proposed any major changes to the F-1 Student Visa Program, it is evident that with this sting operation, along with new guidance and memoranda, the government is clamping down on OPT (Optional Practical Training) and CPT work authorization. All along, the Administration has been concerned that students using practical training have been disadvantaging U.S. workers. For example, USCIS has made it harder for students to work at third-party locations and made it more likely that they will fall out of status. Furthermore, a new interpretation of the regulations draws attention to the fact that USCIS is now questioning whether students can have more than 12 months total of combined CPT and OPT at the same educational level.

If you have questions about how the new guidance and memoranda may affect students, especially those who will apply for a Cap H-1B this season, please reach out to your Jackson Lewis attorney.

Tech Companies Expand to Canada

Canada has been having success in attracting more high-tech companies and employees from the United States. This trend began in 2008, when such companies in the U.S. could not obtain the number of H-1B visas they needed due to the limited number available. Microsoft opened a development office in Vancouver at that time.

Since then, the problem for companies has only grown. The Trump Administration has made the H-1B program more restrictive and companies have to deal with even more uncertainty about whether they will be able to “capture” an H-1B visa. In response to President Donald Trump’s “Buy American, Hire American” Executive Order, even the cost of obtaining an H-1B visa is rising precipitously. This is due to the number of Requests for Evidence being issued (at close to 70% in the 4th quarter of FY 2017). In addition, denial rates are up and processing times, according to the American Immigration Lawyers Association (AILA), have almost doubled in the past four years. Even so, Silicon Valley and other areas of the U.S. (Texas, New York, and New Jersey) still draw high-tech companies and employees, but Canadian entrepreneurs are ready to take a bigger piece of that pie.

Such companies as Mob Squad in Canada are working on persuading some Silicon Valley companies to move workers to Canada. Mob Squad works as an intermediary to bring employees to Canada in four weeks’ time. It is less expensive to live in Canada than it is to live in San Francisco, therefore salaries can be lower. Applying for permanent residence is faster and less burdensome than it is in the U.S. For some foreign nationals, the last straw has been the Administration’s threat to eliminate H-4 EADs. For others, it is the long waits for H-1B adjudications that have left them without U.S. work authorization.

In the meantime, the Canadian government is working hand in glove to fast track high-tech workers. In 2017, the Trudeau government started the Global Talent Stream Program to grant work permits in a few weeks’ time. In the midst of the NAFTA debate, Prime Minister Justin Trudeau brought his “charm offensive” to the San Francisco Bay Area and offered “a two-week, fast track employment permit for certain workers, dubbed the ‘global skills strategy visa.’” He stated: “We know that bringing in great talent from around the world is an enormous benefit, not just to the companies that want to do that, but to Canadian jobs and to our country as a whole, so we’re going to continue to do that . . . . “ The results are clear. “Toronto’s tech scene is so hot the city created more jobs than the San Francisco Bay area, Seattle and Washington, D.C., combined last year, while leapfrogging New York in a ranking of ‘talent markets.’”

 

State Department Warns of China Exit Bans

Chinese authorities have been using “exit bans” to prevent U.S. citizens from leaving China. In response, the U.S. State Department is continuing its Level 2 travelers’ warning to “exercise increased caution.” The advisory was originally issued in 2018 due to “arbitrary enforcement of local laws as well as special restrictions on dual U.S.-Chinese nationals.”

“China uses the exit bans coercively:

  • to compel U.S. citizens to participate in Chinese government investigations,
  • to lure individuals back to China from abroad, and
  • to aid Chinese authorities in resolving civil disputes in favor of Chinese parties.”

Under Chinese law, a Chinese citizen automatically loses Chinese citizenship upon gaining citizenship in another country. Nevertheless, Chinese security authorities have been treating Chinese nationals who have acquired U.S. citizenship as Chinese, not as U.S., citizens. Chinese citizens often are subjected to exit bans. For instance, Chinese activists are sometimes prevented from attending conferences abroad. Those subject to exit bans may not be held in detention, but they are not allowed to leave China.

In June 2018, two U.S. Citizens, Victor Liu and his sister Cynthia, were prevented from leaving China after visiting their grandfather. Cynthia was born in China, but Victor was born in the U.S. The siblings’ mother, a naturalized U.S. citizen, has been detained at a secret site. It appears that the Lius are being held as “human collateral” in an effort to force their estranged father, Liu Changming, back to China. Liu Changming fled China after he was convicted in a high-profile bank fraud case in 2008. Victor Liu is a student at Georgetown University and his sister works at McKinsey & Company in New York. They are still being prevented from leaving China despite U.S. government efforts to bring about their release. There are reports that two dozen U.S. citizens have been subjected to exit bans since 2016. While preventing someone from leaving a country contravenes the Universal Declaration of Human Rights, the practice continues.

Those who chose to travel to China, especially Chinese-born U.S. citizens, as the State Department notes, should exercise extreme caution. U.S. citizens may be detained without access to U.S. consular services and could be held for reasons related to “state security,” such as sending electronic messages critical of the Chinese government.

The State Department recommends taking such precautions as making sure to have all relevant identification and immigration documentation and joining the State Department’s Smart Traveler Enrollment Program (STEP). STEP is a free service that provides the latest security alerts and enables the U.S. embassy or consulate to contact you in an emergency.

The Canadian government has also issued a similar travel advisory for China.

This is general information about the Chinese exit bans. For specific advice on the risks of travelling to China, please reach out to your Jackson Lewis attorney.

 

2019 H-1B Cap Season: New Cap Lottery Selection Rule Favors Beneficiaries with U.S. Master’s Degrees

While employers and immigration attorneys are preparing for the H-1B Cap Season, DHS has posted its Final Rule for a More Effective and Efficient H-1B Visa Program. The new rule will be published in the Federal Register on January 31, 2019.

As expected, the new rule provides for an electronic pre-registration requirement and reverses the order in which USCIS will select H-1B petitions during the Cap Lottery. The electronic pre-registration will be suspended until April 2020, but the change in the lottery selection process will go into effect on April 1, 2019.

Here is how the “reversed” selection process will work:

Instead of first conducting the U.S. master’s degree lottery and then adding any remaining U.S. master’s degree beneficiaries into the “regular” lottery, as in previous years, DHS will:

  • First, conduct the “regular” lottery for 65,000 visas with the master’s degree beneficiaries included,
  • Then, put the remaining U.S. master’s degree beneficiaries into a lottery for the separate 20,000 U.S. master’s degree allocation.

USCIS expects this reversal will increase the number of U.S. advanced degree holders who will be selected by up to 16%, or 5,340 workers. This is being implemented to partially fulfill President Donald Trump’s policy as set forth in the “Buy American, Hire American” Executive Order. The President directed DHS to “suggest reforms to help ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.”

While advantageous to foreign students with U.S. advanced degrees, this new process will make it more difficult for employers to hire those who hold foreign advanced degrees (some of whom may be the “most-skilled”) and for employers who are hiring individuals for positions that may require only a Bachelor’s degree.

If you will be filing Cap H-1B petitions, it is important to start that process now. Jackson Lewis attorneys are available to help prepare to file petitions and develop business strategies to deal with this new process.

Catching Up with E-Verify

Employers will have until February 11, 2019, to create cases in E-Verify for employees hired during (or just prior to) the government shutdown.

Because of the month-long interruption in services, E-Verify anticipates that there will be longer-than-usual processing times and longer-than-usual delays in responses to requests for assistance.

Creating Cases for Employees Hired During (or just before) the Shutdown

  • During the shutdown, employers were still required to complete Form I-9, Employment Eligibility Verifications within three days after the date the employee began working for pay.
  • When entering these cases into E-Verify, use the hire date from the employee’s Form I-9.
  • If the case creation date is in fact more than three days after the date the employee began working for pay, select “Other” in the drop down menu.
  • Enter “E-Verify Not Available” as the specific reason.

Tentative Nonconfirmations (TNCs) Referred Before E-Verify Resumed Operations

  • If an employee notified you of his or her intention to contest a TNC by February 11, 2019, revise the date by which the employee must contact the Social Security Administration (SSA) or DHS.
  • Add 10 federal business days to the date on the “Referral Date Confirmation” notice.
  • Provide the revised notice to the employee by logging into E-Verify, selecting the employee’s case, selecting the “Print Confirmation” button, and then altering the dates on the hard copy.
  • Federal Business Days are Monday through Friday excluding federal holidays.

Federal Contractor Deadlines

  • E-Verify was not available for federal contractor enrollment during the shutdown.
  • DHS guidance is that any calendar day when E-Verify was unavailable during the shutdown should not count toward the federal contractor deadlines.
  • Federal contractors should consult with their contracting officer for more information on how to proceed.

E-Verify also advises:

  • For questions about E-Verify unavailability, email e-verify@dhs.gov
  • For questions about Form I-9, email I-9central@dhs.gov
  • To contact E-Verify by phone, call 888-464-4216, Monday through Friday

If you have questions or concerns about how to proceed, your Jackson Lewis attorney is available to assist.

H-1B Premium Process Resumes

Just as the end of the month-long government shutdown was announced, USCIS had its own announcement: it will resume premium processing on Monday, January 28, 2019, for all FY 2019 H-1B Cap petitions, including those eligible for the advanced degree exemption (the “master’s cap”).

Form I-907 requests for premium processing will be accepted for pending cap cases, as well as those cap cases where the petitioner is responding to a Request for Evidence (RFE). This is an important development for those who have been waiting since April 2018 to have their cases adjudicated – especially for those who no longer have work authorization.

The temporary suspension of premium processing remains in effect for all other categories of H-1B to which it applied, i.e., all other H-1B petitions filed at the Vermont or California Service Centers.

Premium processing will remain available for those cases that were previously exempted from the temporary suspension:

  • Cap-exempt petitions filed by cap-exempt institutions that are filed exclusively at the California Service Center; and
  • “Continuation of previously approved employment without change with the same employer” petitions filed exclusively at the Nebraska Service Center.

The resumption of premium processing for FY 2019 Cap petitions does not mean that premium processing will be available for FY 2020 petitions.

Jackson Lewis will continue to follow these developments and provide updates as they become available.

The Shutdown Ends, for Now

President Donald Trump has announced that the government shutdown is over, for now. He has agreed to sign a short-term spending bill that will re-open the government for three weeks, until February 15, 2019. The bill does not include any wall funding.

The bill is expected to be brought to the Senate floor “immediately.” The President expects Congress to come to a “reasonable agreement” during the three-week interval. If Republicans and Democrats cannot come to an agreement on border security that is acceptable to him, he suggested that he might use his emergency powers.

In the meantime, we are awaiting word from E-Verify about how and when the database will come back online and what the rules will be. The “three-day” rule had been suspended and the time for employees to resolve TNCs had been extended. Announcing the shutdown, USCIS noted that it “would provide additional guidance regarding [the] ‘three-day rule’ and [the] time period to resolve TNCs deadlines once operations resume.”

Since the system has been unavailable for over a month, companies that have continued to hire employees may have stacks of documents to enter into E-Verify. USCIS likely will account for that as it establishes new deadlines.

Jackson Lewis will provide updates as they become available.

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